In August 2021, a Toronto drug case took a dramatic turn when a prosecutor made what the judge called a 鈥渉ighly unusual鈥� request, asking the court to throw out evidence by a key police witness.
It came after defence lawyers had grilled Toronto Police Service Const. Ryan Kotzer over 鈥渄isparaging comments about black people鈥� in an unofficial 51 Division police chat group.
In another conversation, a different 51 Division officer asked about the pubic hair of a female colleague and whether it was 鈥渓ike a blk chick.鈥�
That vulgarity also found its way into the courts 鈥� used to depict the officer who made the comment as racist in a bid to throw out a separate human-trafficking case.
The troubling content of the unofficial Toronto Police Service 51 Division chat groups has been emerging in social media leaks for years.
Screenshots shared with The Canadian Press show officers exchanging pornographic content, rape jokes, complaints about 鈥渓eftist鈥� judges, and a photo of Ontario Premier Doug Ford鈥檚 daughters, with one officer commenting, 鈥淚 know which one I want.鈥�
But it鈥檚 never previously been reported how the conversations were used to try to impeach the credibility of police witnesses in at least two cases.
It鈥檚 an example of how courts and police forces are being forced to grapple with the consequences of private chat groups among officers. Such chat groups raise legal and ethical questions, blurring lines between public and private behaviour, while revealing 鈥� and potentially obscuring 鈥� racism, sexism and other misconduct among officers.
Defence lawyer Alonzo Abbey said he was surprised when the Crown prosecutor asked the court to entirely scrap what the judge in the Ontario court of justice called 鈥渧ery problematic鈥� testimony from Kotzer, who had been surveilling the Moss Park homeless encampment in downtown Toronto.
鈥淚t was shocking,鈥� said Abbey. 鈥淚鈥檝e never seen that before.鈥�
It was clear, the judge ruled, that Kotzer鈥檚 evidence against two 20-year-olds accused of possessing fentanyl and a loaded handgun was compromised. The case then collapsed, never making it to trial.
鈥淭he fact that these are police officers who are talking like that among themselves in the private chat is very concerning and troubling,鈥� said Abbey, who represented one of the accused.
Privacy and allegations of investigative overreach being used against officers have meanwhile emerged as a key battlefield over unofficial police chats.
In British Columbia, officers in the Nelson Police Department and Coquitlam RCMP have tried to block separate disciplinary probes involving group chats on personal phones.
In one discussion outlined in an RCMP search warrant application, unidentified Coquitlam Mounties were said to believe their private chats would not be exposed because they were 鈥渁mongst the trusted.鈥�
It鈥檚 a position that reflects critics鈥� concerns that some group chats are used to improperly keep police matters private.
Toronto Police Association president Clayton Campbell said police departments across the country are closely watching a court challenge by the officers in Nelson against the seizure of their personal phones 鈥渂ecause it could have impacts across Canada.鈥�
Campbell said the new Community Safety and Policing Act in Ontario has similar language to B.C.鈥檚 Police Act, 鈥渁bout warrantless search of our members鈥� personal cellphones.鈥�
He said police group chat material that鈥檚 been made public may be 鈥渢roubling,鈥� but people in regulated professions like policing still have rights to privacy and rights guaranteed by the Charter of Rights and Freedoms.
Regarding the 51 Division chats, he said officers are now issued phones by the Toronto Police Service, and 鈥渢hings have changed.鈥�
Kotzer could not be reached for comment. Gary Clewley, a lawyer who has previously represented him, said Kotzer would not want to be interviewed, while declining to help put The Canadian Press in touch with him.
The Toronto Police service and the Toronto Police Association both declined to facilitate an interview with Kotzer.
Former Toronto Police Service officer Firouzeh Zarabi-Majd leaked some of the unofficial 51 Division group chats on social media from 2019, including those of Kotzer.
Zarabi-Majd said she later watched group members leave the chats in real-time after they found out they were 鈥渃ompromised,鈥� and those group chats 鈥渘o longer exist.鈥�
But officers 鈥渟till use their own phones to communicate,鈥� she said in a text message. 鈥淭hat鈥檚 not going to stop.鈥�
鈥楾HE BUSINESS OF THE PUBLIC鈥�
Aislin Jackson, a lawyer with the BC Civil Liberties Association, said police should not expect privacy if they use off-the-books chat groups.
鈥淚t seems to me like none of us can reasonably expect that our communications to any police officer will be private from the police, including the police themselves,鈥� she said.
She said there is 鈥渁 very real possibility鈥� police use personal phones and encrypted messaging to skirt freedom-of-information or defence disclosure obligations.
If officers in chat groups wanted to conduct 鈥渢he business of the public鈥� in private, 鈥渢hat does not seem proper to me,鈥� she said, and it was 鈥渘aive鈥� to expect privacy for remarks revealing misconduct.
In the Coquitlam case, a search warrant application in B.C. provincial court by Sgt. Bryson Yuzyk, an RCMP professional standards officer, describes private chat remarks by Mounties that allegedly include:
鈥� calling a female rookie 鈥渄isgusting鈥� and 鈥済ross鈥� and mocking her weight by 鈥渋nsinuating that the shape of her vagina was visible through her clothing;鈥�
鈥� use of a homophobic slur against black people and calling a fellow RCMP officer who was not in the chat a 鈥渢urban twister;鈥�
鈥� bragging about 鈥淭asering unarmed black people鈥� and calling an alleged sexual assault victim a 鈥渄umb Mexican.鈥�
RCMP constables Ian Solven, Mersad Mesbah and Philip Dick have code of conduct hearings scheduled for Feb. 17 in Surrey, B.C.
They tried to exclude the personal phone evidence from their upcoming code of conduct case, claiming its use violated their Charter rights. An RCMP conduct board rejected the claim last June.
The trio declined to comment for this story, and none of the allegations against them have been proven.
In the case of two former and three current police officers in Nelson in B.C.鈥檚 southern Interior, exactly what they said in a WhatsApp chat group hasn鈥檛 been made public, although deputy police complaint commissioner Andrea Spindler characterized the chat group as containing 鈥渞acist and discriminatory type of jokes and commentary.鈥�
She said in an interview that unless the investigation by the Police Complaint Commissioner goes to a public hearing, she couldn鈥檛 say whether the chat鈥檚 contents would be released.
The officers are petitioning the B.C. Supreme Court over the seizure and search of their personal phones. All say in affidavits they 鈥渃onsidered that the WhatsApp group was private and would remain private.鈥�
鈥淚 appreciate that the members are making the argument that these are their private thoughts, their private messages,鈥� Spindler said.
鈥淏ut I think there are societal and community expectations that we have of police officers and by making commentary that is seen to be, if proven, racist or discriminatory, in our view that could amount to discrediting the reputation of the police department and amount to misconduct.鈥�
Christine Joseph, the lawyer acting on behalf of the Nelson Police officers, declined to comment when contacted by The Canadian Press.
Joseph told the Nelson Star in August 2024 that, 鈥渁ny time there is an investigation under the Police Act, officers 鈥� whether accused of misconduct or just witnesses 鈥� are at risk of having the contents of their personal phones, text and instant messaging, search and call history, photos, social media accounts and the like seized and reviewed by an investigator.鈥�
The Toronto Police Association鈥檚 Campbell said he agreed with the Nelson police, that warrantless searches of officers鈥� personal cellphones are unconstitutional, and proper process needs to be followed to ensure searches are lawful rather than a 鈥渇ishing expedition.鈥�
He said group chat contents being made public 鈥� whether by a whistleblower or through official investigations 鈥� could have serious consequences.
鈥淭hat content, once it鈥檚 out in the public realm, defence attorneys will 100 per cent use it to disparage a member in a trial,鈥� he said.
鈥淚t鈥檚 important because it could have ramifications to real victims, important prosecutions, so we take it very seriously, so we just want proper process.鈥�
Jackson with the B.C. Civil Liberties Association said police accountability was of paramount concern.
鈥�(With) the amount of power that the police have to interfere in the lives and even cause harm to members of the public, it鈥檚 really important that the police are held to high standards of behaviour and held accountable for any misconduct,鈥� she said.
鈥淲hy should the police have any additional protection over and above what an ordinary citizen would have when they鈥檙e communicating with police officers?鈥�
