Report on an inquiry into administration of internal investigations by the Metropolitan Toronto Police Force

5.

Case Chronology: Brian Whitehead

Brian Whitehead

Shortly afterward, Jane Doe consulted a lawyer who arranged a meeting with the Internal Affairs unit. Accompanied by her lawyer, she alleged to Internal Affairs that a police officer, whose name she did not know, had extorted sexual services from her by the threat of arrest. During a second encounter on the same night, the officer had given a false statement to another member of the force about the nature of his contact with Jane Doe.

These activities involved possible criminal offences of sexual assault and extortion. They also involved corrupt practices and deceit, according to the Code of Offences in the Police Act.

At the meeting with Internal Affairs, there was a discussion between Jane Doe and the investigators of possible criminal and Police Act charges. She indicated that she wanted the officer to be prosecuted in some fashion, and she did not want her identity revealed. The investigators consulted a member of the force's Trials Preparation Unit about her request for anonymity in the event of a disciplinary hearing. Jane Doe was assured that steps could be taken to prevent the disclosure of her name.

At a subsequent meeting with investigators, Jane Doe provided a complete statement of the events involving the alleged offences.

An intensive investigation was launched promptly to determine the identity of the officer. Recording equipment was installed on Jane Doe's telephone. With the cooperation of Jane Doe, Whitehead was arrested at her residence in the early morning of November 23, on charges of sexual assault and extortion.

The investigators told the inquiry that they did not intend to proceed with criminal charges. They felt their case was weak and they believed that Jane Doe would refuse to cooperate if they proceeded with a criminal case. Whitehead was arrested so they could restrain him because of a fear he would assault one of them. Whitehead, who was carrying a bottle of liquor, was described as belligerent and emotional. Jane Doe was distraught.

Whitehead was transported to the Internal Affairs unit. Investigators said they did not notice an odour of alcohol on his breath until he was taken to their offices. Intoxication was confirmed through an ALERT test. No drinking and driving investigation was conducted.

Although he had been arrested, Whitehead was not formally interrogated or fingerprinted in connection with the offences for which he was arrested. No criminal information was sworn and no arrest report or Crown brief was prepared. Whitehead was told that a Crown Attorney would be consulted in the morning; he was allowed to go home after three hours, without a formal release from arrest.

A duty inspector decided not to suspend Whitehead because he was already on "days off".

That morning the investigators discussed the case with a Crown Attorney, but did not present a written brief. The Crown lawyer recalled concluding that the case for a criminal conviction was weak because the complainant had given conflicting statements and there was no corroboration. He said the information he was given by the investigators led to concerns about Jane Doe's credibility as a witness. One of the investigators recalled referring to some "bizarre" prior occurrences involving Jane Doe, but denied saying she had given contradictory versions of the events of November 18.

Shortly after his arrest, Whitehead entered an institution for the treatment of alcoholism.

Between November 1989 and February 1990, a brief in support of Police Act charges was prepared by the investigators and forwarded to the Trials Preparation Unit. No reference was made in the brief to Jane Doe's insistence on anonymity, but there were informal conversations to that effect between Internal Affairs and the officer prosecuting the case.

In December, both Jane Doe and her lawyer contacted Internal Affairs to request that the force go ahead with criminal charges against Whitehead. Jane Doe asked for the name of the officer involved, but Internal Affairs refused to give it to her.

On February 19, Police Act charges of corrupt practice (using his position as a member of the force for private advantage) and deceit (making a false, misleading or inaccurate statement to another officer) were laid against Whitehead. The charge sheets revealed the identity of Jane Doe. Whitehead's first appearance on the charges was March 9.

Before Whitehead entered a plea, Jane Doe retained another lawyer, who requested that criminal charges be laid against Whitehead. Jane Doe indicated she was ready and willing to testify. No criminal charges were laid.

On May 9, Whitehead pleaded guilty to the Police Act charges. Although particulars of the offences contained in the charge sheets were not amended, the fact summary read into the record by the prosecuting officer contained significant variations from the statement given by Jane Doe. The changes were made at the insistence of Whitehead's lawyer and without the knowledge or concurrence of Jane Doe or the Internal Affairs investigators.

Jane Doe was not notified of the proceedings or the date of the appearances and was neither present nor represented. No application was made to conduct the hearing in camera or to restrict publication of her name. Her name was repeated in the transcript of the hearing.

The prosecution and defence in the Whitehead disciplinary hearing agreed to propose a penalty of forfeiture of days off. The proposal presented to the hearing officer was that Whitehead should lose 20 days on the corrupt practice charge and forfeit three weeks' annual leave on the deceit charge, for a total of 35 days' off. The presiding senior officer rejected the joint submission.

Whitehead was sentenced on May 11, 1990. The hearing officer acknowledged Whitehead's exemplary service record of 23 years, his early plea of guilty, his remorse and attendance for treatment for alcohol dependency, and the many senior ranking officers who spoke on his behalf. But he described Whitehead's conduct as "a totally despicable abuse of police power and authority."

He sentenced Whitehead to a reduction in rank from Sergeant to First Class Constable. On May 14, 1990, the Chief of Police reviewed and confirmed the conviction and sentence.

Whitehead launched an appeal. Jane Doe requested that she be allowed to appear before the Police Services Board on hearing of the appeal.

Members of the Public Complaints Bureau of the Metro force met with Jane Doe and offered her the opportunity to make a public complaint or to consult with a Crown Attorney, but she declined.

Immediately before the appeal before the Police Services Board was to be heard, it was withdrawn. On February 19, 1991, the Board proceeded to review and confirm the conviction and sentence.

At the end of February 1991, Jane Doe asked for a transcript of the disciplinary hearing and learned that her name had not been kept confidential, despite the assurances she had been given of anonymity. In March, she asked to appear before this Inquiry. That same month, she provided the Globe and Mail with information about the case and a story ran March 20. In the newspaper story and in other media reports, Jane Doe's anonymity was preserved.

Her lawyer requested a review of the case by the Attorney General.

In response to criticism about the case in the media, Chief McCormack held a news conference to discuss the Whitehead matter. When Jane Doe learned that a news conference was planned, she requested that steps be taken to protect her anonymity.

The force said it had legal advice to the effect that it could not legally alter the transcript of the disciplinary hearing which included Jane Doe's name. Jane Doe retained a lawyer to apply for a court injunction to restrain disclosure of her name. The force did not oppose the action and the court granted the injunction.

At the news conference, Chief McCormack said he wanted to clarify some "ambiguities" about the case. He told reporters that it would be "highly improper" and "most unethical" for him to become involved in the matter of sentencing. He added later that he could not begin to "second-guess" the sentence without reviewing the entire matter. He also said the Board had not been in a position to review the sentence.

In fact, both the Board and the Chief had already reviewed and confirmed the sentence imposed on Whitehead.

The Chief also said that the force had done its best for Jane Doe. "Nothing went wrong. Nothing at all went wrong," he said. The Chief said that Jane Doe and her lawyer had the opportunity to make application to the hearing officer for a closed disciplinary hearing to maintain her anonymity, but did not do so. When he was told that Jane Doe and her lawyer had not been notified of the hearing, the Chief said that "if she had exhibited any kind of an interest in the matter, she would have found out ..." But he conceded that the force should have kept Jane Doe informed.

In the summer of 1991, the Director of Criminal Prosecutions for the Attorney General of Ontario examined the evidence and decided against laying criminal charges against Whitehead.