A Hamilton police officer has been found guilty of four charges under the Police Services Act in connection with the arrest of two photojournalists at the scene of a fatal car crash in Waterdown in 2017.
Const. Jeff Todoruck was initially charged with two counts of discreditable conduct, two counts of neglect of duty, and unlawful or unnecessary exercise of authority.
On Thursday, Todoruck was found guilty of four of the five counts. He was found not guilty of one count of discreditable conduct. The ruling was made by retired Supt. Peter Lennox.
The investigation was done by the Office of the Independent Police review Director (OIPRD).
The charges follow an incident in May 2017 when Todoruck arrested then-Global News videojournalist Jeremy Cohn and freelance camera operator Dave Ritchie at the scene of a crash that took the life of 10-year-old Jasmin Hanif.
According to the ruling, Cohn arrived on scene of the crash to film and saw Ritchie sitting handcuffed in the back of a police cruiser. Cohn then asked Todoruck why Ritchie was arrested, to which the officer responded it was “none of his business.” Cohn then called Hamilton Police Services (HPS) media relations, who told him he should continue to film the scene.
Todoruck then followed Cohn and told him he was not “authorized” to be at the scene and was told to put his camera down and threatened to arrest the cameraman.
A video from the scene shows Todoruck pinning Cohn to the ground and cuffing him with zip ties, before pulling him to a police vehicle. According to the ruling, Cohn was released 20 minutes later without charges.
A hearing took place from March 3 to March 5, where all parties – prosecutor Brian Duxbury, Todoruck and complainant, Global News’ Regional Director of News Mackay Taggart all appeared.
“Global News is pleased with the ruling in this matter,” Taggart said on Thursday. “We have always maintained that journalists in this country have the right to lawfully pursue their profession without interference from police. Unfortunately that right was not upheld during the incident in question.
“We hope this decision will send a message to police services that prohibiting or impeding journalists from doing their jobs will not be tolerated.”
A breakdown of the reasoning behind the verdict from Lennox issued Thursday is below.
1st count of unlawful or unnecessary exercise of authority – guilty
In regards to the first count of unlawful or unnecessary exercise of authority in connection with Todoruck’s arrest of Cohn, Lennox said he found it to be unnecessary. Lennox said he was required to find if the arrest falls under either unnecessary or unlawful, and not both.
“I reject the submission by the respondent that Mr. Cohn had ever been actively resistant, justifying the use of force and intermediate weapons,” Lennox said in his ruling. “Not only was Mr. Cohn never more than passively resistant, I find that any resistance, at least at the very low level at which it was offered, was justified.”
“I also find that at no time did Mr. Cohn willfully attempt to obstruct or impede Const. Todoruck in the performance of his duties. He merely declined to follow direction given by the officer, direction that we have seen was not based on reason or authority.”
Lennox said while it is not disputed as to whether or not Todoruck asked Cohn to leave the scene, based off evidence, Cohn was not on or interfering with the scene of the collision and the cameraman was set up a reasonable distance from the scene.
“The Ontario Highway Traffic Act (HTA, as it was on May 16, 2017, at section 134) gives a police officer the authority to direct traffic (including pedestrians) and to close roadways to vehicular traffic when he or she ‘considers it reasonably necessary’ in conditions that include ‘to permit proper action in an emergency,” Lennox said.
“I find that using this authority at a location dozens of meters south of the collision scene does not meet the standard of ‘reasonably necessary’, nor was it necessary to ‘permit proper action in an emergency,” Lennox continued.
“I also believe that, for this reason, our “reasonable citizen” would not have invoked this authority.”
Lennox continued to say that Cohn’s decision to decline Todoruck’s orders to move and/or leave to be “justified.”
“I find that, in addition to the arrest site being far removed from the collision scene, the legal basis for those orders did not apply in this case.”
Lennox said in his ruling that he understands “what it is like to respond to tragedy, and to deal with chaotic scenes” and that he has sympathy for Todoruck, however, it is an officer’s duty to overcome those things and “maintain a clear head” and “remember the law.”
Therefore, Lennox said he found the arrest of Cohn by Todoruck to be unnecessary.
1st count of neglect of duty – guilty
The first count of neglect of duty stems from the arrest of Ritchie, in which Lennox said it was his duty to deem whether Todoruck failed to inform the cameraman of the reasoning behind his arrest and/or whether he failed to inform him of his rights to counsel.
The evidence presented, Lennox said, showed that Todoruck failed to read Ritchie his rights until over 50 minutes after his arrest at around 7 p.m.
“Even without knowing the exact time of Mr. Ritchie’s arrest, there was a gap of about an hour during which the rights were not read despite ample time to do so,” Lennox said in his ruling, adding “this is clear and convincing evidence of the charge of neglect of duty.”
At the time, Ritchie was charged with obstructing a peace officer and resisting arrest. Those charges were dropped and on Oct. 17, 2017, Ritchie entered into a 12-month peace bond. Under the conditions of the peace bond, he was ordered to complete 12-and-a-half hours of community service and make a $250 donation.
Hamilton police previously said in a statement the “accused accepted responsibility for the offence of obstructing a peace officer.”
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2nd count of neglect of duty – guilty
The second count of neglect of duty is in regard to the arrest of Cohn. Lennox said he found Todoruck guilty of neglect of duty based on the fact that the officer himself admitted to failing to read Cohn his rights upon his arrest.
“The rights to counsel were never read, and the duty rested on Const. Todoruck to read them,” Lennox wrote in his ruling. “He had ample time to do so, either at the moment of the arrest or, perhaps more reasonably, immediately on Mr. Cohn’s placement in the police vehicle, but in any case, ‘without delay.’”
1st count of discreditable conduct – guilty
The first count of discreditable conduct stems from Todoruck’s arrest of Ritchie and whether or not the cameraman was left unattended in the back of a police cruiser, which goes against HPS policy.
“I have clear and convincing evidence that Const. Todoruck, by violating the service’s policy on prisoner care and control, and particularly by leaving a person who was complaining of medical distress alone in his police vehicle, has acted in a disorderly manner or a manner prejudicial to discipline or likely to bring discredit upon the police force,” Lennox said in his ruling.
“I do not require proof that discredit has actually been brought upon the HPS, but only that it is likely to do so. That said, several members of the media are integrally involved in this matter and fully aware of what transpired, and as the relationship between the media and the police is an important and delicate one, discredit in that circle is both likely and undesirable.”
Lennox said based off numerous videos taken by Cohn, supported by Cohn’s account of his own arrest, it was clear that Ritchie was left alone in a cruiser multiple times, and also while in medical distress.
Hamilton Police Chief Eric Girt spoke to Global News Radio 900 CHML on The Bill Kelly show on Thursday and said he has not read the full report yet but that since he became chief a few years ago, he has purposefully kept open dialogue between police and the media.
“The role of the media is so important in the constitution of democracy … it’s pivotal because the whole accountability transparency, what happened, the public’s right to know. I think that’s very important to the legitimacy of any institution, including ours,” he said.
READ MORE: Canadian journalism group calls for public inquiry after journalists arrested in Hamilton
Count of discreditable conduct – not guilty
The count of discreditable conduct in which Todoruck was found not guilty was made in connection to whether or not Cohn was left unattended in the rear of a police vehicle, which, as previously stated, is against HPS policy. Lennox said that while Todoruck may not have done his “due diligence” in ensuring Cohn was not alone in the vehicle, the “circumstances do not amount to misconduct.”
Todoruck claimed he did not intentionally leave Cohn alone in the cruiser of the acting sergeant at the scene, where Cohn was allegedly left for 15 minutes, as Todoruck and the sergeant were focused on other duties, according to the document.
“His apparent belief that he had turned the prisoner over the acting sergeant removes an element of negligence or intent, as another officer accepting custody would have relieved him of that responsibility,” Lennox said.
The prosecutor, complainant and defendant will now submit recommendations of what they believe the penalty should be for Todoruck. A hearing date will be set in August, where the hearing officer will review the submissions and deliver a ruling.
Cohn, who is no longer with Global News, is suing Hamilton police for nearly $1 million. The allegations have yet to be proven in court.
—With files from Nick Westoll and Lisa Polewski
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