Crime & Punishment

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Posts Tagged ‘Dziekanski

Justice denied for Mountie on appeal

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The war on police continues.

Last weekend, 12 Dallas police officers were shot, five of them fatally by a nutter with military training and Islamic inducement. Oh yes, I should add the shooter was black and the cops shot were white. In the ensuing ‘negotiations’ with police the shooter said he was trying to kill as many white cops as possible. But apparently, according to the Department of Justice, this was not a hate crime. Had the tables been turned, you can bet it would be a hate crime.

Tragic.

Yesterday, a travesty of justice was committed in a Vancouver court against a Mountie who was just doing his job. Cst. Kwesi Millington, the young officer who wielded the Taser at YVR the night Robert Dziekanski died, was appealing his conviction for perjury.

In issuing a 23 page written judgement, the Court of Appeal essentially punted. In legal terms they said the appellant (Millington) didn’t argue his case well enough to convince them to order a new trial.

Millington, with his legal team headed by Vancouver lawyer Ravi Hira will seek leave to appeal to the Supreme Court of Canada. I am not holding my breath on this one.

Hira argued five solid points on appeal yet the Court of Appeal gave him short shrift. Why?

The essential component of the criminal trials against the four officers involved in the YVR incident is did they collude to make up some sort of statement? In and of itself, this is nonsense. One only need look at the timeline of events to conclude it was impossible. Yet, the bespectacled, pencil-necked Mr. Justice William (Bill, when I knew him as a junior prosecutor) Ehrcke somehow managed to “infer” they must have colluded.

How, is a whole other question considering once Dziekanski went down, Cpl. Monty Robinson was monitoring his physical symptoms while the other three officers were canvassing witnesses.  Once the watch NCO from Richmond Detachment arrived and took control of the scene, he ordered  the three constables to the sub-detachment to await follow up investigators and Robinson to remain at YVR to await those self-same investigators from IHIT.

Erchke’s “inference” could also be justifiably called a “great leap in mental gymnastics” yet the Court of Appeal declined to deal with that.

One wonders if they were told to let sleeping dogs lie as it were?

From day one of this affair, politics has reared its ugly head.  The Braidwood inquiry which emanated from this was fundamentally flawed in that Mr. Justice Braidwood found the four officers colluded in the absence of any evidence. To conclude that one presumes that imagination trumps evidence.

That finding triggered two legal reviews. One, commissioned by the RCMP, was done by very respected counsel Len Daoust. He concluded that no case existed against the four members relative to perjury at the Braidwood inquiry. The other, that of Special Prosecutor Richard Peck, pursued the matter at great expense to the taxpayer.

Why, for example, were the four members prosecuted individually? Surely that quadrupled the cost to prosecute the cases on essentially the same fact pattern. Apparently, once a Special Prosecutor is appointed no further oversight can be done by the Criminal Justice Branch. Every decision is up to the Special Prosecutor. The meter on billable hours just runs and runs.

The prosecutions included flying a lawyer back and forth from Toronto for every appearance, argument, trial date and what have you.  Flights and hotels for a Toronto lawyer? Why? Are there no competent lawyers in Vancouver?

One notes that Peck was hired by the same Toronto lawyer a few years back to deal with a matter involving the Toronto Police. Apparently, scratching backs is accepted among lawyers when dealing with taxpayer dollars.

For the record, neither Richard Peck nor Mike Fenton, the Toronto lawyer who prosecuted three of the four cases, deigned to show up at the appeal hearing. Peck left it to his juniors. Perhaps he thought he’d lose the appeal?

But no victory for Kwesi Millington who spent the day in a jail cell. Just as he did the day the appeal was argued. A cop who was just doing his job was in a jail cell as his lawyer tried to argue common sense to a legal panel bereft of it.

I’m stunned. Offended. And a myriad of other things I probably cannot and should not say.

The YVR Four did nothing wrong. Yet two, the non-white ones by the way, were convicted and sentenced to jail for doing their jobs.  My anger in this is palpable.

It’s very hard to go to jail in BC if you are a garden variety criminal charged with B&E, theft, assault, rape, robbery etc. But a cop doing his job? Two years is the standard apparently.  And the BC Court of Appeal is okay with that.

Personally, I’m disgusted.

Leo Knight

@primetimecrime

Written by Leo Knight

July 15, 2016 at 5:49 pm

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Hindsight is 20/20 in YVR case

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Two of the four RCMP officers involved in the incident at YVR that resulted in the tragic death of Polish traveller Robert Dziekanski were found guilty of perjury in bizarre decisions and given custody sentences. I don’t believe either will serve any time at all. And the reality is that none of the four needed to be put through the hell that they have these last seven years.

Both Cpl. Monty Robinson and Cst. Kwesi Millington have filed appeals of their convictions and given the other two Mounties involved were acquitted at bar and the Crown appealed one and was soundly defeated in the Court of Appeal, it seems likely the appeals will be successful. At least I hope that will be the case. I have stated this before and will say so again; not one of those four officers did anything wrong. They responded according to their training and the RCMP policy such as it was at the time.

For them to be in criminal proceedings at all is a travesty. Let alone for the trumped-up charges of perjury.

Throughout, the media narrative has been relentless all based on misconceptions that could have easily been cleared up had only the RCMP as an entity, done a better job of communicating with the public instead of hunkering down in the bunker, so to speak, and hoping things would blow over.

The fall-out of those bad communications decisions resulted in the convictions against two of those members for perjury, mind you, nothing to do with the events at YVR. Which in itself, is ludicrous. In the Millington case as an example, Mr. Justice Ehrcke decided that a perjury was committed because he “inferred” they must have colluded. The alternative is that he could have “inferred” they were telling the truth, which they were.

What Ehrcke ignored, conveniently, was it was physically impossible for the four members to have colluded at the Sub-Detachment following the event simply because Robinson as the supervisor on the scene remained at YVR awaiting the IHIT investigators while the other three went to the Sub-Detachment to make their notes and await Robinson and the IHIT investigators.  In the interim, Sgt. Mike Ingles, their Staff Relations Representative, arrived at the sub-detachment and sat with the members. Yet somehow Erchke arrived at the decision he did and in my opinion will be overturned on appeal.

But more telling to me is the phone call made by S/Sgt. Ken Ackles, who was oncoming watch commander in Richmond a few hours after the event. He called Robinson’s cell and asked what had happened. Robinson said, ironically, “Don’t worry Staff, we’ve got a video that shows the whole thing. There’s no problem.” He was, of course, referring to the so-called Pritchard video.

Now, I ask you, if Robinson believed for a minute there was anything wrong with the handling of the event or indeed, that they had some need to collude, to get their story straight, why would he say that to Ackles?

Why would all four give statements to investigators voluntarily without benefit of counsel as they were advised by Sgt. Mike Ingles?

The answer of course is simple. They believed they had handled everything appropriately and had done nothing wrong. After all, as Robinson said, they had the video which backed them up. Little did he know what effect that video would have once the uninformed media got hold of it.

The problem was an error made by media liaison officer Sgt. Pierre Lemaitre at the first media briefing where he gave some inaccurate information to the assembled media that could have been easily corrected in a subsequent press conference simply by saying something like, “We apologize but Sgt. Lemaitre gave you some inaccurate information yesterday based on the information he had at the time. Subsequent investigation has revealed . . . ”

Had the RCMP done that, the story would have died a death within the news cycle. But they didn’t.  The Inspector in charge of IHIT at the time, Wayne Rideout, who is now part of the senior management team for the RCMP in BC, made the decision not to correct the record. Lemaitre was removed because essentially the media labelled him a liar and he had lost whatever credibility he had earned over the years.

Everything resulted from that one, stupid decision by Rideout. The Braidwood Inquiry and it’s wrong-headed conclusions, the subsequent Kennedy report, the Special Prosecutor and the resulting criminal charges against the four officers, everything, resulted from that one ill-advised decision.

The other thing that has not occurred is that the RCMP has never once said publicly that their members reacted according to their training and within policy as it existed at the time. They’ve said it privately behind the scenes when the senior management declined to order a Code of Conduct investigation against the YVR four.

In policy, a COC can be ordered against a subordinate officer within one year of the event in question. On the evening before that year was up following the incident at YVR, then Commanding Officer, Deputy Commissioner Gary Bass sent out an email to senior management saying that “tomorrow is the expiration of the COC period and unless I hear anything to the contrary, it will expire.”

No one in senior management offered a word in disagreement. And, that includes current Commissioner Bob Paulson. But they, as the senior management team, stood mute in public as the Force in general and the YVR four in particular, were being pilloried in the media.

Had they not done so, I believe they would have avoided the ensuing public relations debacle and the resulting damage done to the reputation of the iconic national police force.

In conversation with Bass recently,  I asked him about his position on the YVR four. He said, “I continue to be of the belief that the four members acted in accordance with their training and the policy at the time and that I never saw any indication that they committed perjury.”

Well, I asked, why not say that publicly at the time? He responded, reasonably I suppose, that while in the position as Commanding Officer of E Division it wouldn’t have been appropriate with all that was going on, with what he called a media “feeding frenzy.” But that now, as a retired civilian, he is free to speak.

Fair enough. I then asked about the decision not to correct the Lemaitre statement that led to all the troubles that resulted. He said he was not aware of the decision at the time, but that he felt as the CO he had to trust the decisions made by his unit commanders.

Also fair enough. But, I can’t help but think that had he engaged in that conversation with the officer in charge of IHIT and reviewed that foolish decision, a lot of grief might have been avoided. Not to mention the north of $50 million the incident has cost the taxpayers so far.

But then, hindsight is 20/20.

-30-

Leo Knight

@primetimecrime

Written by Leo Knight

August 20, 2015 at 2:57 pm

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Were the YVR Mounties scapegoated for political reasons?

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The more time I spend looking into the case of the four RCMP officers who responded to a call to YVR in October, 2007 which resulted in the tragic death of Robert Dziekanski, the more it appears they were railroaded, or scapegoated if you will.

The YVR four have been put through the ringer in this, pawns in a political game of blame, cultural ass-covering by their employer, the RCMP, and ultimately had their lives changed utterly and their careers effectively ruined. And two of them still face perjury convictions that are at best, a flight of fancy. Yet, all they did to deserve this was their job.

Regular readers will know that I have said publicly that they responded according to the way they were trained. The question then becomes “why?”

The mess started with then Media Liaison Officer (MLO) Sgt. Pierre Lemaitre released information which contained some factual errors and extrapolations or assumptions he should not have said.

The problem is not specifically with some inaccurate information in the ‘fog of war’ and all that, provided to Lemaitre in his initial briefing. That can be corrected as more information came to light as the investigation progressed. The problem was that the RCMP knew at the time that it was inaccurate and stood mute. They then exacerbated the problem when the officer in charge of the section responsible for the investigation, the Integrated Homicide Investigation Team (IHIT), Wayne Rideout, made a conscious decision not to correct the public record. That decision made it appear as though the RCMP had engaged in a cover-up with the release of the now infamous Pritchard video.

This, coupled with the public outrage over yet another death resulting from the use of a Taser, supposedly a non-lethal use of force, triggered the political knee-jerk that became the immensely expensive Braidwood Inquiry which led to another review by the Commission for Public Complaints (CPC) against the RCMP, which was also flawed, and ultimately to the formation of the Independent Investigations Office (IIO). Talk about a bad decision.

Now, I would never presume to understand the RCMP’s media relations strategy, but having had a foot in both camps over the course of my career I do come at this with a little knowledge. Had the RCMP come out at the time and said, “We’re sorry, but our MLO was given initial information which was later found to contain factual errors.  We strive to be as accurate as possible but in rapidly unfolding investigations this sort of thing does occur from time to time and was in no way the fault of Sgt. Lemaitre.” and gone on from there, the matter would have died in the news cycle of a day or two.

But they didn’t. And then, in the wake of the flawed Braidwood Inquiry report and the report made with great fanfare by Paul Kennedy, Chair of the CPC, the then-Commissioner of the RCMP, the bombastic bureaucrat, William Elliott, doubled down.

He conceived of a strategy that the Force would provide “Operational Guidance” to each of the four members blaming them for essentially, acting too quickly. The “discipline” isn’t that actually. It came in the guise of Form 1004’s which are designed to be “at the time” opportunities for supervisors to provide guidance to subordinate officers. You know the sort of thing where a direct supervisor says “That might have been handled better if you had. . . “ The RCMP policy says: “All entries on form 1004 are considered official notes. Each entry must be discussed with the member at the time or the incident and the member should be requested to initial and date the entry.”

They are to be kept on the member’s file for a period of two years. Unfortunately, Elliott waited for 37 months to provide “at the time guidance.”

The first drafts of the 1004’s were even back-dated to 2007-10-14, the date of the incident at YVR. The one that actually was served on the members was dated 2010-11-26. I have seen copies of both.

The document was grieved by two of the four members and an Early Resolution (ER) discussion determined that the forms should be removed from all the members’ files.

But, what this was really all about was scapegoating the four so that the RCMP could say publicly they were “disciplined.”

They had a set schedule, everything timed to a fare-thee-well complete with talking points all set by Elliott. The brass at “E“ Division all smartly saluted and did their parts, emailing draft documents back and forth, making revisions, suggesting changes, but at the end, Elliott got his way and no one spared a thought, officially and publicly, for the four members at the sharp end.

I have seen many, if not most of the email traffic, the timing schedule and the talking points memo labelled, “Q&As on Discipline in the YVR Case.”

This went on for months and God knows how many hours of very expensive persons’ time to give the Commissioner the ability to use the word “discipline” in relation to the four members who responded to the  violent actions of Dziekanski.

And the worst of it is even though the 1004’s were wrong-headed, they are not supposed to be used for “discipline,” but for guidance. And the senior members of the RCMP knew that info contained within the 1004’s was just plain wrong.

An email exchange took place on November 26, the date on the final 1004, between Assistant Commissioner Peter German, then the Lower Mainland Commander and Staff Sergeant Mike Ingles, the Staff Relations Representative. Says German, “Good talking to you Mike. Attached are the draft 1004’s…plse get back to me re your wishes. As indicated, I hope to have the final versions on Monday for service on Tuesday….tx…pete.”

Ingles replied, “Peter, I’m not going to get into the merit of a 1004, that is the right of the organization to provide guidance that is misguided. What these members can’t accept is statements that if they accept become integrity issues. (sic) They didn’t meet privately with anyone. They were in police buildings in full view of everyone from start to finish. They didn’t discuss or fabricate notes, statements, or anything resembling that. I would like to be a part of helping to conclude this, but there is no way these will be accepted. What you had in June was what was appropriate for a 1004: guidance. These are a media release consistent with Braidwood’s report. Everyone in policing knows that the response was not as good as it needed to be, including the members involved no doubt, but that it was a response within the parameters of training.” 

Then there’s this. In an email addressed to many of the the senior RCMP management in BC of the day, including Gary Bass, then the Commanding Officer of BC, A/Comm. Darrell Madill, then in charge of Contract and Aboriginal Policing (CAP), said: “Good evening Peter (German), as discussed with the Commr I have prepared the 1004’s and attached them for you.”

“The only changes to the 1004’s from those provided by the Commissioner for our joint review the other day were the following:

  1. I amended the date to 2010-11-26 for each 1004
  2. I amended the last line in the first paragraph after the list of “deficiencies” in each 1004 to read “”It is critically important for the RCMP as a whole, other members and you an an individual to learn from mistakes and shortcomings and to make appropriate statements.” and
  3. In the Robinson 1004 “duty of care” for Mr. Dziekanski was referenced in the last line of both the 2nd last and last paragraph of the last page. I removed the second reference in the last paragraph so the repetition was eliminated.

Call if you have any questions.

Darrell.”

(So, an Assistant Commissioner is admitting that the RCMP was going to back-date an official document and he decided not to at the last minute and they were all, up to that point, going along with it? Isn’t falsifying an official document illegal?)

To which Bass replied copying German and the Commissioner Elliott, “As discussed in our telecom I have been in touch with the POBC (The Government of the Province of British Columbia) and they are fully briefed. In discussion on the issue of “failures at several levels”, they agreed and added that the POBC could be added to that list, that the fact that policy was inadequate was everyone’s responsibility. I add this as I think it further strengthens my suggestion that a re-ordering of the various documents, as discussed, would be beneficial.

I am enroute (sic) Ottawa this AM for a meeting and will be back in BC tonight.

Gary.”

One might ask what in the world the wording of Elliot’s “discipline” has to do with the provincial government? One might. But clearly this whole thing was a sop to the government and conceived by Elliott.

Why then? Well, there was the matter of the multi-billion dollar policing contract that was due to expire in two years and the fact that the government had served notice on the RCMP that they intended to have the RCMP fall under the BC Police Act in any new contract negotiations, which I might add, incensed Elliott .

Is that what this is all about? Is that why these four police officers were put through the meat grinder when they were just doing their jobs? To ensure the government was happy so the RCMP would keep their contract?

It seems to me they define the word scapegoat.

-30-

Leo Knight

@primetimecrime

Written by Leo Knight

June 21, 2015 at 2:55 am

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