Archive for May 2015
I spent the day last week at the sentencing hearing for RCMP Cst. Kwesi Millington who was convicted of perjury on Feb. 20, 2015 arising from testimony given at the 2009 Braidwood Inquiry into the death at YVR of Polish traveller Robert Dziekanski. The Crown and the defence both made their cases with the Crown seeking a jail term between 24 and 36 months and defence requesting a conditional sentence of one year. Mr. Justice Bill Ehrcke reserved his decision until June 22, 2015.
Earlier this week I opined in this space that this whole process was a charade. Indeed, I was correct. Having said that, by charade, I meant not meaningful given the likely appeal which would negate anything the judge pronounced pending appeal.
Ravi Hira, QC, the defence counsel, said at the start of his argument that he had already prepared the documents to file an appeal of the conviction, so the sentencing arguments made were really just going through the motions.
I realize that sentence pronouncements often have an effect in criminal appeals, in this case I think it would not be germane to the salient question of the difference between wrestling ‘to’ the floor or ‘on’ the floor. Because really, that’s what al of this is about.
Given the acquittal last week of Cst. Gerry Rundel and the reasons given for that judgement, it seems most likely that an appeal will succeed. The circuitous logic and inferences drawn in the absence of actual evidence by Ehrcke, it seems to me, should be easily argued in the Court of Appeal by any average lawyer and Hira is no average lawyer.
But what really struck me is how aggressive the Crown was being to try to get jail time for a young Mountie. Indeed, the Crown had three lawyers at bar. Leading for the Crown was Scott Fenton, a well-known Toronto lawyer who has been flown out for every appearance in not only the case against Millington, but also for Cst. Bill Bentley, who was acquitted last August and Cpl. Monty Robinson, who was found guilty in March. All four were tried separately when clearly, the case for the Crown emanated from the same fact pattern and from the same event.
Separating the four Mounties meant the prosecution was going to be much more expensive than trying them together. Made much more so when you consider bringing in high-priced help from Toronto and flying him back and forth for every appearance of three different trials.
As an aside, I asked Hira about this after the hearing. He smiled at me and said, “I really can’t say. It’s almost as though there aren’t any good lawyers in BC.” Good point.
The other two lawyers appearing for the Crown were Eric Gottardi and Tony Paisana of the law firm Peck and Company. This has apparently been the same basic format for all three trials with minor differences. Richard Peck himself handled the prosecution in the Rundel trial with Paisana sitting second chair and he sat second chair in the trial of Robinson.
Considering that the Criminal Justice Branch (CJB) hired Peck as the Special Prosecutor who decided on whether there was a case to be met at bar and actually approved the charges, It seems to me there is a bit of a problem.
A Special Prosecutor gets paid to review and decide whether or not to go forward with charges and then gets to keep the meter running on billable hours throughout the process? Why would any Special Prosecutor not approve charges in such a case and give it a run? But that is what the Crown Counsel Act allows without any oversight.
Oversight? Ah yes, isn’t that why we are in this quandary in the firs place?
I cast no aspersions on Peck. Indeed, he is also a QC with 40 years experience at bar. He works within the system as it is. But, for the taxpayer to have confidence in the system, in my opinion, this needs to change. CJB should have one counsel review the file and decide on whether charges should be laid, and if so, another counsel should have conduct of the prosecution. That seems much more fair not only to the taxpayer, but also to anyone under such scrutiny.
Especially when one knows this matter was considered in depth by another highly regarded criminal lawyer in Vancouver, Len Doust, QC.
On April 20, 2010, in an 11 page letter to Superintendent Wade Blizzard of the RCMP, Doust wrote:
“Based on our review of the materials with which you have provided us, the testimony of the Officers at the Inquiry does not likely amount to perjury under s. 131(1) of the Criminal Code. Nor does it violate the Code of Conduct. While there is some discord between the Officers’ testimony, their notes, their statements to investigators, the testimony of eyewitnesses and other evidence, we believe it is far from clear that this discord reflects any intention on the part of the Officers to mislead the Inquiry, or recklessness in that regard. It more likely reflects
- The frailties of the human memory, considering particularly the extremely short timeline for the event at YVR about which the Officers testified;
- The fact that the Officers’ initial recollections of the events at YVR was flawed, owing to the intense circumstances in which they made their observations and the impact of Mr. Dziekanskfi’s death on the Officers and / or to efforts by the Officers to maximize their justification for the use of force vis-a-vis Mr. Dziekanski; and
- The Officers’ use, in accordance with their training, of specialized terms (e.g. “combative”) in their testimony without adequate explanation as to the meaning of those terms.”
Yet Peck came to a much different conclusion which brings us to where we are with four RCMP members charged – two convicted and two acquitted – and more appeals to come. And, I might add, with a great many tax dollars spent in the process.
Something needs to change.
Last week, RCMP Cst. Gerry Rundel was acquitted in BC Supreme Court on charges of perjury resulting from his role in the 2007 death of Robert Dziekanski at YVR. Tomorrow, Cst. Kwesi Millington will be in the same court for sentencing after being convicted a little over a month ago on the same charge based on the same fact pattern.
How is this possible you may ask.
Well it happened twice. Last summer Cst. Bill Bentley was also acquitted of perjury arising from the same fact pattern and last month Cpl. Monty Robinson was convicted.
As an aside, and I am not suggesting anything untoward, merely making an observation, but how is it that the two non-white officers are convicted but the two white officers were acquitted? (Millington is black and Robinson is native while both Bentley and Rundel are white.) Just asking.
But in some ways this is fitting considering what a dog’s breakfast this has been from the beginning. It started when RCMP spokesman Pierre Lemaitre held a morning press conference and gave fuzzy details about what happened to the media and later seemed factually inaccurate after the public surfacing of the “Pritchard’ video, a cellphone video perspective of the events of that night. And I might add, a video that was seized by Cst. Rundel in the aftermath of the incident. So, the officers knew when they gave their statements that video of the event existed. Think about that.
The RCMP, as an entity, failed utterly in Media Relations 101 out of the gate and further perpetrated that failure every step of the way. It continues today with their lack of comment on the convictions and acquittals of the members involved.
In truth, the four RCMP members attended the disturbance call to YVR International Arrivals in response to Polish traveller Dziekanski acting erratically and violently, throwing things around including a desk.
Those actions were also recorded by the tourist traveller Pritchard.
The members responded according to their training. They tried to engage verbally, which didn’t have any effect obviously because Dziekanski couldn’t speak English. We can debate until the cows come home about what happened after that and the reality is that the officers responded according to their training and the situation escalated rapidly to the point where Dziekanski grabbed a metal stapler, held it in a threatening manner and advanced toward one of the members. Cpl. Robinson gave the order to deploy a Taser (CEW) which was in the control of Cst. Millington.
Millington had only been trained on the use of a CEW for about three months. This was the first time he’d had occasion to use the non-lethal weapon.
Ironically, when he testified before the Braidwood Inquiry, for which he was ultimately charged and convicted of perjury, was the first time this young constable had ever testified before any body.
Was he confused in front of the bright lights and high-priced lawyers with an agenda? Probably, but he did his best. But perjury? It was nothing of the sort. Yet, he was still convicted in what can only be described as a bizarre decision by Mr. Justice William Ehrcke in late February.
Here’s the decision: http://www.courts.gov.bc.ca/jdb-txt/SC/15/05/2015BCSC0515.htm
You tell me if you can make any sense of this yet, this is why Millington is being sentenced tomorrow.
The reality is this decision will be appealed. Sources close to the matter tell me that appeal documents will be filed this week. Given the Rundel acquittal and the trial judge’s reference to the two conviction decisions in her summation it is highly likely that an appeal will be allowed meaning that tomorrow’s process will be little more than a charade. Which frankly, is an apt description of the Crown’s attempt to get some scalps for the whole Dziekanski mess.
Those officers did their job according to the training they had. Period. That Dziekanski died as a result is tragic. But nothing in any of this is criminal on behalf the RCMP members involved.
In the two and a half years since the Independent Investigations Office (IIO) opened they have been the subject of many complaints including: harassment, bullying and incompetence. Of the roughly 50 staff members put together by Chief Civilian Director Richard Rosenthal, about half have left either of their own volition or have been forced out as was the case with several former police officers who stood up to Rosenthal’s nonsense.
Rosenthal you see, was entirely unqualified for the job he now holds. He is an American lawyer who worked as an assistant District Attorney in Los Angeles when he was assigned to interview an LAPD corrupt cop surfaced by the department’s Internal Affairs Department, named Rafael Perez.
Perez was done. The department had his balls for bookends so to speak. So he did what all scumbags do, he tried to rat out everyone he knew in the LAPD’s Rampart Division to deflect attention from himself and perhaps cut a deal. Rosenthal was assigned to take his statement. That’s it. That’s his claim to fame. Albeit, he has embellished the story over time positioning himself as the guy who took down the “Rampart Division” scandal. In reality, there was just one corrupt cop that the LAPD’s Internal Affairs took down.
But he managed to parlay that into a career as a “Civilian Oversight” expert of police. He went on to Portland, Oregon to act as a reader, essentially, reviewing internal investigation files. From there he moved to Denver, Colorado where he managed a staff of four, again, reviewing police internal investigations but without any real teeth. And yet he still managed to get into wars with his own staff and city staff. One of which resulted in a civil suit alleging bullying, harassment and sexism. That suit was dismissed earlier this year, but the stench lingers.
Given all of that, how he ended up in Vancouver as the first Chief Civilian Director of the fledgling IIO is really a mystery. He has never managed a staff of 50 let alone launched a project the size and scope of the IIO.
In fact, I am told, he didn’t even apply for the position during the competition when it was open. Indeed, the closing date had come and gone when Rosenthal called looking for information on the position.
Jay Chalke, the Assistant Deputy Minister in the Ministry of Justice, was assigned the task of putting together the IIO and the first task was finding the person to lead. For whatever reason Chalke entertained the interest request from Rosenthal even though the competition had closed according to several people I have spoken with who were told that by Rosenthal.
One wonders why.
Certainly, it would seem to be a breach of the government’s hiring policies. Equally, Rosenthal was unqualified for the position’s requirements given his actual experience. Also, presumably Chalke never did any background checks on Rosenthal, apparently preferring instead to accept Rosenthal’s career claims. How else to understand why he was hired? There’s no other possible explanation.
Rosenthal, according to several former employees I have spoken with, said to subordinate employees in the IIO that he was the only person in the organization that never had to submit to a polygraph test prior to engagement. Yet, given his lack of qualified experience and lack of background checks, he would seem to be the prime candidate for a polygraph.
All of this is the back story. When the complaints, formal and informal, together with the stories in this space and in the mainstream media began piling up, the Deputy Minister responsible for this mess, Richard Fyfe, asked the human resource agency for the provincial government, the Public Service Agency, to investigate.
Last week came word that the PSA have decided that the final report from that investigation will be kept secret from the public.
This is addition to an investigation conducted over the last year by labour relations consultant Tony Belcher, who was hired to investigate formal complaints filed by retired Mounties and former IIO investigators Fred Liebel and Robin Stutt. That investigation is now complete but its report also will not be made public.
Leibel has not been informed of the results nor has he been allowed to view the report. According to a report in the Times Colonist, Leibel questioned the decision. “The obvious question is what happened to the Belcher report? Did Belcher substantiate our complaints, un-substantiate our complaints?” Leibel said. “That’s the part that confounds me. It seems to me they’re stalling at every turn, putting whatever obstacles they can throw up to not deal with the issue. As a complainant, I have the right to know.”
Indeed he does. As does the citizenry of British Columbia. The IIO was set up by the government as a response to public concerns about police oversight. It is funded by tax dollars and overseen by the afore-mentioned apparatchiks in the Ministry of Justice, Richard Fyfe and Jay Chalke.
By design, it exists to watch the actions of police for the public. How is it possible that investigations into inappropriate actions by that body are not made public? It supposedly exists for transparency yet isn’t subject to that same transparency?
The only reason not to release those reports is to protect those responsible for the problems; Jay Chalke, who hired Rosenthal in the first instance, apparently not following governmental guidelines or best practices in hiring, and Richard Rosenthal himself, who should not have been put into the position out of the gate.
Why else would the government not release the reports? Where’s the transparency?
And just for the record, a second investigation has been started by the PSA into allegations against Director (and former CBC radio reporter) Priya Ramu. The PSA would not confirm when asked by the Victoria Times Colonist of the existence of this second investigation, but I know that people within the IIO are being interviewed relative to a complaint against Ramu.
The IIO may have been set up supposedly for transparency of police oversight. But, apparently, they don’t have to live by the same rules.