Court to decide if officers in Ejaz Choudry death should be kept anonymous
Judge to weigh if police's safety concerns should override open court principle in family's lawsuit
Ontario's Superior Court of Justice is now examining whether or not police officers who fatally shot a mentally ill man in crisis should have their names shielded from the public.
That debate stems from a lawsuit brought forth by the family of Ejaz Choudry, a father of four with schizophrenia who was shot and killed by police west of Toronto in June 2020 after his family called a non-emergency line for help.
Lawyers for the five Peel Regional Police officers involved in the death of the 62-year-old — including one who fired two bullets into Choudry's chest — say publishing their names could put them and their families at risk of physical violence.
Lawyers for the family say there is no credible risk to the officers and that a publication ban would infringe on the public's right to know the identities of the officers entrusted with the powers that ended with Choudry's death and the media's ability to report openly on the case.
During a hearing on the question Tuesday, Justice Paul M. Perell called the request by police "remarkable" and "quite a large encroachment on the open court principle."
CBC News has intervenor status in the case and is opposing the proposed ban. Also intervening are the Canadian Muslim Lawyers Association against a ban, the Police Association of Ontario for a ban, and the Canadian Civil Liberties Association, who ask the court to consider the impact of its decision in this case on future use of force cases.
Perell will now consider the arguments of all parties before releasing a written decision.
The open courts principle
As noted by lawyers for CBC News, the Supreme Court of Canada has repeatedly emphasized the importance of the courts' transparency and openness, and that for justice to be done, it must be seen to be done.
Exceptions to the open court principle require proving that openness presents a serious risk to public interest, that an exception is necessary to prevent serious risk to those identified and that the benefits of an exception outweigh its negative effects.
"The police are a public institution who enjoy the state's monopoly on the use of violence. Their ability to deploy those powers must be subjected to the highest level of scrutiny of any act committed in the name of the public," lawyers for the family say in court documents. "In that context, there can be no doubt that the public has a right to know and understand who these officers are, and the acts that they each committed that resulted in Mr. Choudry's death."
In responding documents, lawyers for the police say officers have faced "violent threats" in the form of social media posts, wanted posters, and verbal threats at protests. "They have been described as 'murderers' and 'suspects.' Anonymous groups have invited members to share the officers' names and addresses … There is no way to express the John Doe officers' concerns without sounding dramatic: disclosing their identities makes them sitting ducks."
At Tuesday's hearing, lawyers for the family as well as CBC News, the CCLA and CMLA argued there is no evidence of a a serious and specific threat to the officers, let alone enough of a risk to override the open courts principle.
Lawyers for the police suggested that's because of a "chicken and egg" scenario — that the officers have faced no harm precisely because they haven't been identified thus far.
The hearing comes amid an ongoing civil lawsuit filed against the Peel Regional Police Services Board, Chief Nishan Duraiappah and the officers, who have been cleared by Ontario's Special Investigations Unit of any wrongdoing in Choudry's death. The $22-million suit, first reported on by CBC News, argues police were "reckless" in their response to the mental health call by Choudry's family and breached his right to life under the Charter and violated his right to equality as a racialized person in crisis.
"They negligently allowed a straightforward mental health call to spiral out of control and become a high-risk tactical operation," the lawsuit says, adding the police "deployed deadly force without justification."
The allegations have not yet been tested in court.
Shot within 11 seconds
It was 5:30 p.m. on that June day four years ago when Choudry's family called paramedics, worried because he hadn't been taking his medication.
Instead of getting medical attention, Choudry would die that day.
According to the family's lawsuit, Choudry's daughter told the dispatcher he had a small pocket knife with him, but despite her reassurances that he wasn't dangerous, police arrived and demanded to see the knife. Choudry then revealed a 20-centimetre kitchen knife from under the mat he was sitting on and told police to leave.
According to the lawsuit, Choudry said he "would not leave his home because he was afraid that the officers would shoot him." English wasn't his first language, his family has said, and he later told a Punjabi-speaking officer that he did not intend to hurt himself.
With no mobile crisis team available at the time, according to police, tactical officers entered the apartment after Choudry stopped responding, shouting at him in English. Within seconds, police Tasered him, fired rubber bullets and shot two bullets into his chest, killing him.
Two of the three officers on the balcony who spoke with investigators said Choudry moved toward them, knife in hand, after the balcony was breached — a claim for which Ontario's police watchdog notes they were the only source of direct evidence.
The officer who shot Choudry ultimately declined to speak to the Special Investigations Unit as is allowed under Ontario's Police Services Act. All that is known of his perspective are the words another officer said he heard him say after opening fire, as reported to the SIU: "I had to do it. I had no choice."
Police turn to 'threat assessor' as expert
As part of their application, lawyers for Peel police rely on the view of a "threat assessor," whose salary is paid by the force itself. The assessor has said being on the police payroll "is not tied to her conclusions," and that publicly naming the officers in Choudry's death will "enhance the risk of violence toward them and should be avoided."
The same assessor has said there have been "no identifiable threats or concerning communications directed toward the police" since the summer of 2021.
Choudry's family's lawyers say the assessor relied on "dubious techniques" in her report, has refused to supply any documents supporting her opinion and should be given no weight by the court as an expert.
During cross-examination, the assessor was asked about a YouTube post containing video of the police's tactical team entering Choudry's home on which a user reportedly commented in part: "The tactical guy in the middle… I know his house… let's deal him [sic] there… I have his home address," the family's lawyers say in court documents.
The assessor responded that the Peel police's criminal investigation bureau investigated the post and interviewed the user behind it.
"The investigation concluded that the threat was baseless," the document says, and no charges were laid.
Police association, civil liberties groups weigh in
The Police Association of Ontario argues in its filing that as a matter of public policy, the courts should protect officers' mental health by concealing their identities in such cases.
"While having to give evidence about the incident may be necessary for legal processes, protecting officers' identities is one way of mitigating the psychological impact of having to relive the event," it says in part.
On that point, the Canadian Muslim Lawyers Association argues in its filing that protecting the officers' identities could jeopardize whether justice is seen to be done.
"The need for transparency and accountability is heightened and particularly acute in proceedings implicating the fraught relationship between police and racialized communities," it argues. "The court must be alive to the likelihood that such restrictions will exacerbate distrust by racialized groups in our public institutions and undermine the legitimacy of the judicial process."
The Canadian Civil Liberties Association echoes that view. Court openness is all the more important in cases involving members of marginalized communities, it said in a statement Tuesday.
"The identities of officers in police accountability lawsuits should not be hidden from the public. It is vital that the public know about allegations of police misconduct, be able to identify repeat bad actors, and see justice be done," said Shakir Rahim, director of the Criminal Justice Program.
Editor's note: The reporter who wrote this story submitted court documents outlining CBC News's opposition to the publication ban.
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