Archive for November 2014
Since I started looking at the circumstances surrounding the murder charge laid against Delta Police Constable Jordan MacWilliams the biggest question that remains unanswered is why.
Last week in a discussion with me on Global’s Unfiltered with Jill Krop, former Crown Counsel Sandy Garossino tried to explain the charge approval process as it is practiced in BC. In a nutshell, she explained that for a charge to be approved it must have a “substantial likelihood of conviction” and “be in the public interest.”
If a police officer abuses their authority then certainly it would be in the public interest to charge them. But in this case, MacWilliams was on a tactical call out with the Municipal Integrated Emergency Response team to a shots fired, hostage taking call.
After MacWilliams and two colleagues heroically affected the rescue of the hostage, a then employee of the casino who was arriving for work, a stand off ensued which lasted five hours. All the while Mehrdad Bayrami, 48, was waving a pistol he had already fired three times. In fact, he ejected the clip late in the incident, leaving one round in the spout and pointed at one of the ERT officers held up one finger and said, “I only need one.”
So, with the means and the stated aim, the police tried to arrest and disarm the suspect using a tactical, non-lethal approach using a flash bang and an ARWEN gun. As the “non-lethal” officers broke cover, they were covered by MacWilliams, designated in a ‘lethal’ sniper position covered by an armoured police vehicle.
When the flash bang went off and the ARWEN rounds missed, the suspect leapt back and the weapon moves toward the ARWEN operator. It’s at this point MacWilliams fired one shot which felled the armed suspect.
It’s impossible to see from that set of facts how any Crown Counsel could possibly perceive there’s a substantial likelihood of conviction. The Criminal Code gives the police the authority to use force in a number of circumstances but it holds police accountable for that use of force if it is deemed to be excessive. The suspect had a loaded weapon. He had fired three shots from that weapon on that day. He threatened police when he held up one finger and said what he did. He then moved the weapon towards the ARWEN operator. What could possibly be deemed excessive or unlawful in this?
Nor does it seem to be in the public interest to prosecute a police officer doing his duty to protect the public.
I should add that MacWilliams submitted a written statement to Crown late last Spring outlining what happened and why he pulled the trigger. His counsel even offered to address any and all questions the Independent Investigations Office might have. The IIO declined that offer.
So, this seems to tell us that there is not the same standard used by the Crown when it comes to prosecuting those we employ to protect the rest of us.
Why would that be?
Most likely it has everything to do with the 1998 death from exposure of Frank Joseph Paul, who was left intoxicated in an alley by a young VPD constable who didn’t know what else to do with him after Detox and the police jail sergeant both refused to take him.
That case culminated in Commission of Inquiry headed by William H. Davies, QC between 2009 and 2011 when he issued his final report.
In that Inquiry Davies looked at the allegations of conflict of interest against Crown levelled by the usual crowd of hand-wringers. He found there was no evidence of any conflict but wrote that when the possibility of a conflict was present, the case should be given to a lawyer in private practice to review or a prosecutor from another province.
That wasn’t done in this case.
Interestingly enough though, in that inquiry, then Director of Legal Services for the Criminal Justice Branch, Gregory Fitch, testified that while charges were considered he decided not to lay charges because “there wasn’t a substantial likelihood of conviction.”
So, what’s changed? Has the Crown suddenly decided that the rule of law and stated policy no longer applies for police?
We ask the police to do a job most of the population wouldn’t want to do. They see things you wouldn’t want to see. They deal with people with whom you would not want to come into contact. And we ask them to deliberately put themselves in harm’s way. And, if that’s not enough, we demand they be unfailingly polite no matter the abuse and invective that’s hurled at them.
Despite all of that, young men and women willingly take on that challenge. They know their actions will be reviewed and that in their lives, on and off duty, they are held to a higher standard than you are. So, how is it possible that when a decision to charge an officer engaged in the execution of his duty, and courageously I might add, a lower standard is applied by Crown?
This appears to be little more than a charade performed by those lacking in testicular fortitude who are afraid of the perpetually unfounded criticisms of the likes of the Pivot Legal Society or the BC Civil Liberties Association.
Bayrami made his choices that fateful day when he armed himself with a pistol, fired it at a woman he later took hostage and threatened police. MacWilliams made the choice that all members of his team would go home safely to their families that day. To be facing a charge of murder as a result is an absolute travesty of justice. For the Crown to proceed by direct indictment thereby not allowing the defence team to test evidence led at a Preliminary Hearing only exacerbates that travesty.
As one experienced homicide investigator said when we spoke about this case, “It’s like a Chinese Show Trial.”
Indeed it is.
The more the extraordinary 2nd degree murder charge laid against Delta Police Constable Jordan MacWilliams in the 2012 death of 48-yr.-old Mehrdad Bayrami is looked into, the more it appears to be the railroading of a good, young police officer.
Murder is an extraordinary charge to be laid against a police officer engaged in executing his or her duty. It is even more extraordinary when laid against an officer working as an ERT (Emergency Response Team) officer.
There are so many aspects of this story that haven’t been told and I’m sorry to say so many apparent gaps in the investigation conducted by the Independent Investigations Office (IIO) that one must question whether ulterior motives or politics played a part in laying a charge of murder in this case.
MacWilliams was a member of the Municipal Integrated Emergency Response Team (MIERT) on November 8th, 2012 when, at the start of his shift, his phone went off alerting him to a call-out after shots were fired and a woman was taken hostage.
MacWilliams was the first MIERT officer to arrive on scene at the Starlight Casino in New Westminster. Within the first half-hour, the ERT members arriving set up their containment process which limited the armed suspect to a small patch of pavement on the sidewalk just outside the casino parking lot.
MacWilliams then noticed the hostage had created some separation between herself and the armed suspect. Throwing caution to the wind, MacWilliams and two other officers broke cover and ran towards danger. They deliberately put themselves in harm’s way. MacWilliams and New Westminster Const. Cliff Kusch positioned themselves between the armed suspect and the hostage while fellow Delta PD Const. Mo Parry grabbed the terrified hostage and shepherded her to safety.
MacWilliams and Kusch retreated back to cover, despite the fact either could have taken the shot to take out the suspect during the rescue. They didn’t, while risking their lives, they retreated to try and achieve a peaceful conclusion.
Hours later, the decision was made to try a non-lethal approach to arrest Bayrami using a ‘flash bang’ and ARWEN guns, which fire large plastic projectiles. MacWilliams was designated ‘lethal’ and positioned using an armoured police vehicle for cover. His job was to take the shot if the non-lethal approach went bad and the exposed officers were in jeopardy. This is a typical tactical deployment.
The flash bang went off and Bayrami jumped back, pistol waving in hand, the ARWEN rounds missed the intended target and MacWilliams fired one shot hitting Bayrami, who died nearly two weeks later in hospital.
Last Monday, the woman whose life was undoubtedly saved by MacWilliams and his colleagues showed up at the front counter of Delta Police headquarters incensed after hearing of the murder charge laid against one of the police officers who rescued her. She demanded to speak to an investigator to give a statement. Apparently, in the two years the IIO had the file, she had not been contacted by any investigator.
Think about that. The central figure at the heart of what happened on that day was not contacted by the IIO to tell her story. It’s stunning.
But it doesn’t end there.
According to casino security, to date, the IIO has not asked for, nor received any of the video from the Starlight Casino where the bulk of the events took place.
The suspect laid in wait on that morning in the parking lot of the casino. He attacked a woman as she drove into the parking lot firing three shots into the vehicle, mercifully missing her. He then dragged her from the vehicle at gunpoint and nearly a half a kilometre across the parking lot to the road where police, responding to 9-1-1 calls from casino security, responded. It was at that point the standoff began and the call went out to MIERT. And it was all watched live and recorded by casino security.
One might think that the video of all this activity might be germane to any investigation. But not to the IIO apparently. New Westminster police, who conducted a parallel investigation thought it was and obtained a copy. The Coroner’s service also thought it important and they too have a copy. But not the IIO who is the agency who have sought the charge of murder against MacWilliams.
There is undoubtedly much more to come on this very puzzling case.
Here’s a discussion of my piece on the police officer charged with murder on @bc1 with @JillKrop tinyurl.com/lx63wsx
In the wake of the madness in Ottawa, the words heroes and courage were being much bandied about. And as they should. We have all seen the video shot by the Globe & Mail reporter showing police officers with weapons drawn moving toward the sound of gunfire and then dozens of rounds being fired leaving Parliament’s attacker dead.
It is part of the job for police to move to danger while the rest of humanity instinctively moves away from it. On the face of that alone, courage is needed.
Two days before, a Delta police officer, Const. Jordan MacWilliams, was charged with 2nd degree murder resulting from an incident on Nov. 8th, 2012 at the Starlight Casino in New Westminster.
The charge is chilling.
MacWilliams at the time, was a member of the Integrated Municipal Emergency Response Team. They had been called to the casino after shots were fired and an agitated man was holding a woman hostage.
Police contained the scene and isolated 48-yr.-old Mehrdad Bayrami who was waving around a pistol. As the five-hour stand-off dragged on, police tried numerous things to bring an end to it, including negotiators and deploying a robot equipped with a phone in an attempt to start a dialogue.
A decision was made to try a non-lethal approach to arrest Bayrami using a ‘flash bang’ and Arwen guns, which fire large plastic projectiles. MacWilliams was designated “lethal” and positioned using an armoured police vehicle for cover. His job was to take the shot if the non-lethal approach went bad and the exposed officers were in jeopardy. This is a typical tactical deployment.
The flash bang went off and Bayrami jumped back, pistol in hand. At least one, if not both Arwen rounds missed the intended target and MacWilliams fired one shot hitting Bayrami who died nearly two weeks later in hospital.
It’s hard to see from that set of facts how this results in the incredibly rare charge of murder laid against a police officer doing his or her duty. I have only heard of two prior to this, both in Toronto.
Police are authorized in using lethal force if they perceive their life, or the life of another is in peril. In this instance MacWilliams was in the catbird seat in the turret and designated ‘lethal.’ What is critical is what was his perception of the danger faced. And we don’t know that because in the adversarial system created by the Independent Investigations Office, MacWilliams as the designated “subject officer,” declined to make a statement. Which, I might add, is his right and not atypical.
With this charge a chill has descended on all police officers, but most especially those on ERT squads. What might happen then, the next time they are in the catbird seat and designated lethal? If they hesitate because of this, a police officer might die needlessly.
There’s no doubt the IIO needed to get one “on the board” to justify their existence politically. Especially, given there is a Legislative Committee reviewing its efficacy currently and two separate probes that could prove embarrassing to the organization.
One probe is being conducted by a labour lawyer over concerns raised by a former investigator about the culture in the organization under the leadership of Richard Rosenthal. Allegations which were reported on extensively in The Province by Sam Cooper.
The other is an independent review, ironically first suggested by Cooper in a question to Rosenthal, to which he replied he would not do. That review, which Rosenthal ultimately did order under his authority in the Police Act, is reviewing the IIO’s first case, the shooting death of Greg Matters in Prince George in September 2012.
There have been allegations by a senior investigator about Rosenthal – of interference, mishandling of exhibits and altering the primary investigator’s report.
The problem with this review is that the reviewer’s report will be submitted to Rosenthal and he’s under no obligation to make it public. Which, of course, makes no sense whatsoever. How can an independent investigation into allegations of misconduct report back to the very person against whom the allegations were made?
The other curious detail about this case is that the Crown has opted to proceed against MacWilliams by direct indictment, a rare legal move. Proceeding by direct indictment is a tool used by the Crown, typically, for very complex cases. It was used, for example, in the prosecution of Jamie Bacon.
Direct Indictment eliminates the stage of the criminal process known as a preliminary hearing which, by design, tests the evidence against an accused and allows a Provincial Court Judge the opportunity to dismiss a case for a lack of, or insufficient, evidence to proceed with a full-blown trial. Why this police officer would be denied that process given the circumstances is puzzling indeed?
Neil MacKenzie, the Communication Counsel for the Criminal Justice Branch, issued a press release and then declined to offer any details on this incredibly rare case claiming it would not “be appropriate for CJB to release additional information or comment further at this time.”
A young police officer, with a young family, who made a judgement call in a high-stress circumstance and did what he felt was his duty is charged with second degree murder and neither he nor the public – nor frankly his colleagues still on the front lines – are entitled to know why?
On the day the charge was announced, Delta Chief Jim Cessford held a press conference on the steps of police headquarters. While in progress, many of the civilian staff saw what was going on and stood out on the steps to show support for MacWilliams.
That speaks volumes. Apparently in Ottawa you can be a hero for doing your duty but in British Columbia, doing your duty can get you charged with murder.