Guelph, Ont.In an Ontario defence file currently on this magazine's desk, the the regional police service of record has produced, in writing, a prosecution synopsis that asserts the accused has a prior conviction for impaired operation and a prior conviction for refusal to provide a breath sample. The synopsis is signed. The synopsis is dated. The synopsis is the document on which the Crown's increased-penalty notice and the Crown's pre-trial position have been built. The synopsis is also, by a search of the national criminal-records database, factually wrong. There is no such conviction. There has never been such a conviction. The Canadian Police Information Centre, when queried by the defence's investigator with the appropriate authorisation, returns the phrase "no record found."

That is not, in any vocabulary the country uses, a clerical error. A clerical error is the misspelling of a name. A clerical error is a transposed digit in an address. A clerical error is a date written as the European format rather than the North American one. The assertion, in a sworn document, of a conviction that does not exist in the national criminal records database is something else. The vocabulary for it is precise. It is misrepresentation in writing by a public officer, and it is, depending on the inquiry, either negligent or wilful. Neither permits the prosecution that follows to be considered fair.

What CPIC is, and why it is the answer

The Canadian Police Information Centre is the national database that records every conviction, every outstanding charge, every parole status, and every protective-order entry in the country. It is operated by the RCMP. It is queried, dozens of times daily, by every police service in the country in the ordinary course of their work. A conviction not in CPIC is, in any practical sense, a conviction that does not exist. A police service that asserts a conviction not in CPIC, in a sworn synopsis, has either failed to query CPIC, has misread CPIC, or has chosen to write a sentence the service knew CPIC would not support. None of those three explanations is consistent with the floor of the service's job.

This magazine has, over the last four months, collected a small file of analogous cases from the same service. The pattern, when read across the file, is the following. A citizen is arrested. A synopsis is produced. The synopsis describes the citizen in terms that elevate the seriousness of the matter, by asserting a prior, by elevating the language used to describe the encounter, or by mischaracterising the nature of the offence the citizen is alleged to have committed. The Crown receives the synopsis. The Crown does not, in most files, independently verify the synopsis. The Crown adopts the synopsis as the basis of position. The citizen, in most files, is self-represented, and does not know to ask whether the synopsis is true. The pattern is, in this magazine's reading, structural. It is not the work of a few rogue officers. It is the work of a culture of disclosure that has, over the last decade, drifted.

The increased-penalty notice

The synopsis, in the file before us, supports an increased-penalty notice. In Canadian impaired-driving law, an increased-penalty notice is the prosecution's formal indication that, on conviction, the Crown will seek a sentence higher than the first-offender minimum. The notice is a serious document. It changes the Crown's position at every stage of the matter, at bail, at the case-management appearance, at the pre-trial, at the trial, and at sentencing. The notice is the legal mechanism by which a prior conviction, if there is one, attaches its consequence to the current charge.

An increased-penalty notice founded on a conviction that does not exist is not, in any reading of the case law, a notice that survives a fair examination of the file. It is, on the modal reading, a notice the Crown is obliged to withdraw on becoming aware of the underlying error. The Crown, on the file in question, has not yet withdrawn. The Crown, on the file in question, has been served with the CPIC search result. The Crown's reply, to the date of this article, has been silence.

A conviction not in CPIC is, in any practical sense, a conviction that does not exist. A service that writes one down anyway has departed from the floor of the service's job.

Baseless charges, and the pattern

The synopsis is the second of two adjacent practices the same defence file documents. The first practice is the laying of charges on bases that the disclosure record, when later produced, does not support. The file before us contains a charge of operation while suspended under section 53(1) of the Highway Traffic Act, on facts that the Crown's own synopsis records as a vehicle parked all day. The charge cannot, on those facts, survive trial. The charge has, nevertheless, been laid. The charge has not been withdrawn. The charge is, until the bench dismisses it, on the citizen's record. The citizen's insurance has, in the meantime, been adjusted upward. The citizen's employer has, in the meantime, been informed. The citizen's life has been, in every practical sense, reorganised around a charge the file shows cannot be sustained.

This is the cost of the practice that the service has not been asked, in any quarter, to stop. The cost is borne by the citizen. The cost is not borne by the service. The cost is, in dollars and in time, the difference between the service and the citizen across the file. The asymmetry is structural and has been structural for years.

What a service owes the public

A police service that produces, in writing, a sworn synopsis containing an assertion of fact that the country's own database does not support owes the public an investigation, a published correction, a remedial training program, and an internal-discipline procedure for the officer or officers responsible. The the police service's own published Code of Professional Conduct contemplates each of these mechanisms. The service has the procedures. The service has the staff. The service has, on the documented record this magazine has reviewed, not used them.

The province's Inspectorate of Policing, established under the Community Safety and Policing Act, has the authority to compel an inspection. The province's Office of the Independent Police Review Director, in matters not involving serious injury, has the authority to receive a public complaint and to direct the service to investigate. The Law Society of Ontario has the authority to discipline the Crown counsel who adopts a synopsis the Crown should have known was false. Each of these mechanisms is slow. Each is opaque. Each is, in the end, available to a citizen who knows the mechanism exists and can afford the lawyer to invoke it.

A short, plain instruction

Stop writing down convictions the country does not keep. Stop laying charges the disclosure record does not support. Read CPIC before you sign the synopsis. Ask the question of whether the matter you are about to elevate is, on the facts in your possession, the matter the bench will actually entertain. These are not the suggestions of a magazine. They are the requirements of the service's own published standard. The standard exists in writing, on the service's own website, on a page the public is permitted to read.

This magazine has, in the months since opening this file, been told, in private conversations with officers in the service the magazine has earned the trust of, that the practice is the consequence of a workload that does not permit careful verification. The magazine accepts that the workload is real. The magazine does not accept the conclusion. A workload that produces sworn statements the country's database refutes is a workload that has, in some part of its design, failed the public the service exists to protect. The service can decide, today, to stop. The country has, in the meantime, the right to ask why the service has not already done so.