Photo: Shaughn Butts, The Journal
EDMONTON - The Criminal Trial Lawyers' Association says it has forced the Edmonton Police Service to allow a civilian review of its internal investigation of a police investigation that allegedly targeted the head of the police commission and a journalist.
"They had no choice," Edmonton lawyer Tom Engel said Monday. "I viewed their initial position to be entirely without merit and only designed to try to preclude the possibility that there be a public hearing before the Law Enforcement Review Board."
The lawyers' association filed a public complaint in November with police Chief Fred Rayner. The association filed the complaint because, under the provincial Police Act, police are required to investigate every public complaint and make their findings public.
Police investigations of a public complaint also are subject to review by the Law Enforcement Review Board. By contrast, internal police investigations may not be subject to the same public scrutiny.
Last week, lawyers for the police service dismissed Engel's demand to lodge a public complaint. They said the EPS had started its own internal investigation when it received Engel's letter. Engel then threatened court action to force the EPS to obey the law and allow his complaint.
On Monday, the EPS said it would "re-characterize" the complaint as a public complaint. EPS spokesman Chris McLeod said the police conceded to avoid going to court.
But he insisted the legislation on such public complaints isn't "crystal clear." He said the police service agreed to include Engel as a third-party complainant because the intent had always been to release as much of the report to the public as possible.
"It's a matter of public interest and the chief's made a commitment to be open and let the public know what's going on," McLeod said.
On Nov. 18, police commission chairman Martin Ignasiak and Edmonton Sun columnist Kerry Diotte were allegedly targeted and watched by police at a downtown bar.
Both said they were not drunk and neither man drove home. Both men contend they were targeted because of their public criticism of the police.
Rayner ordered two internal investigations; one to deal with the stakeout, which was conducted by the force's traffic section, and the other to probe why police issued a press release on Nov. 21 which may have given the impression that the two unnamed men were intoxicated and might drive.
The internal investigations were conducted by Edmonton police internal affairs detectives. Their reports were then sent to Calgary police for review by a deputy chief, who reported back to Rayner on Monday. The chief will spend the next few days reviewing them before deciding what action, if any, to take.
Engel says his complaint will help promote a transparent investigation. "I think this is very important because we expect a whitewash," he said. "If that's the case there will be an appeal to the Law Enforcement Review Board."
After threatening police with a court order, a city lawyer is pleased his complaint over an alleged sting operation will now be acknowledged. "I'm satisfied on this point," said Tom Engel, head of the Criminal Trial Lawyers Association (CTLA) police-conduct committee.
Police commission chairman Martin Ignasiak and Sun columnist Kerry Diotte allegedly were targeted by cops in a drunk-driving operation Nov. 18 at the Overtime Broiler and Taproom, 10304 111 St.
An internal police investigation followed and Calgary cops have reviewed it. EPS Chief Fred Rayner received it several days ago, police said.
Engel's complaint to the chief was filed Nov. 23. He said he filed it so that if there was a "whitewash", he could appeal. That appeal could lead to a public hearing.
Last Thursday, Engel learned his complaint had been ignored by police. The next day, Engel demanded cops accept his complaint, threatening to file a court order compelling the Edmonton Police Service "to obey the law".
But Engel said it remains to be seen just how much will come out in Rayner's assessment.
"If the result of this thing is that they find no wrongdoing by any officers in relation to this Overtime operation, then we will launch an appeal because that would be a perverse result."
EPS spokesman Chris McLeod said police reserve the right to argue against future complaints from people not directly involved in a matter, but it wasn't worth the battle this time.
"Police felt that we were going to be dealing with this in a very public manner regardless of whether or not Engel was a third party, so we felt on this particular case that it warranted it."
The police chief's goal is to have his review and action plan done sometime this week, McLeod said.
When she heard a skinhead jailed in California has her social insurance number and tax information, Shera Vigeant's gut reaction was fear. Now Vigeant, a former legal assistant at city lawyer Tom Engel's office, is still afraid - but a lot of that fear has turned to anger.
"I feel violated and vulnerable. He's got my tax information, my SIN - my parents and my family don't even know that," Vigeant said.
Skinhead Daniel Sims has financial data - including personal income, taxes paid and pension contributions - for Engel, his partner, their wives and four legal assistants in an immigration file he requested from the U.S. government as part of his battle against deportation to Canada.
Engel represented late broadcaster Keith Rutherford when he filed suit against Sims and other white supremacists for their violent attack on Rutherford in Sherwood Park in 1990.
Sims has been in a Bakersfield, California, pretrial jail since Sept. 3, said Sgt. Joe Pilkington of the Kern County sheriff's office.
"He's being held for illegal entry into the United States of America because we have a contract with Citizenship and Immigration Services to house detainees when they don't have room," Pilkington said.
Sims is being held as a "federal detainee," he said.
Since Sims phoned the Sun with the information last week, Engel has asked the provincial and federal privacy commissioners to look into how the sensitive information made it into his hands.
"My wife thinks it's pretty creepy. I guess it doesn't surprise me that they would be gathering information about me, but the extent to which they would go surprises me," Engel said yesterday.
The federal privacy commissioner called him on Friday, Engel said, and told him he's already started an audit of Revenue Canada and what information was passed to Sims - and by whom.
The issue's also received some media attention in California. Engel has been interviewed by a Bakersfield radio station about the story.
Vigeant said she worked for Engel on and off from 1999 to 2001 - but not during the case against Sims.
"This guy's got my life in his hands," she said. "I'm feeling a lot of anger. When it first hit me, I just sat down and thought about the gravity of it. I can't do anything - I'm sitting around waiting for something to happen. It's frightening."
When asked about the information leak last night, Premier Ralph Klein said he's "absolutely" curious about how it got into Sims' possession.
Klein is scheduled to meet with cabinet tomorrow, followed by a caucus meeting Wednesday.
"We'll have a good discussion about that, and the whole issue of personal information being sent to unauthorized individuals, and how that happened and what action needs to be taken to tighten it up," he said.
Three government departments are trying to find out how private financial information linked to an Edmonton law firm ended up in the hands of a skinhead convict in California. Lawyer Tom Engel has filed complaints with the Alberta and federal privacy commissioners, demanding to know how tax-file data belonging to him, his partner Harold Brubaker and their wives ended up in Daniel Sims's immigration file.
"I'm beyond shocked," he said. "This is very serious, and I can promise everyone this is not going to go away."
Engel said he'll consider suing government agencies on both sides of the border if the privacy commissioners fail to settle the question.
Revenue Canada, meanwhile, has pledged to look under its own rocks to find out if it was responsible for turning over personal financial information from Engel's law office to American authorities.
"We're going to try to find out where this came from," said department spokesman Ron Quinn, adding he "couldn't think of any circumstances" under which Revenue Canada would release such information to U.S. authorities.
Sims told The Sun this week he found financial data linked to Engel's firm in an immigration file he requested from the U.S. government as part of his battle against deportation to Canada.
The information included personal income, taxes paid, Canada Pension Plan contributions and social insurance numbers.
Engel represented late broadcaster Keith Rutherford when he filed suit against Sims and other white supremacists for their violent attack on him in Sherwood Park in 1990.
Sims was convicted for the attack that year but later moved to the U.S. He is now being detained by U.S. authorities pending his deportation back to Canada.
Sims told The Sun his immigration file also included documents from the Edmonton Police Service and Alberta RCMP. Neither agency is planning its own investigation.
Tim Chander, spokesman for the provincial Information and Privacy Commissioner's office, said commissioner Frank Work will investigate the EPS's contribution to the file.
Privacy law experts were scratching their heads yesterday over the data leak. Ontario lawyer Ross Wells said Engel may have a lot of trouble getting answers out of the Americans.
"American privacy law is pretty much non-existent," he said. "Obviously some Canadian agency gave this information to the U.S. government - but I can't think of why, or how it could have been obtained legally."
"In the U.S., law enforcement authorities have a great deal of latitude in collecting personal information and a lot of legal immunity while they're doing it," said Michael Geist, law professor at the University of Ottawa.
Engel said the whole incident has him and his family thinking about the so-called Overtime Lounge affair, in which EPS officers are alleged to have set up a drunk-driving sting to capture police commission chairman Martin Ignasiak and Sun columnist Kerry Diotte.
"My wife's taking it harder than I am. She's starting to wonder if we should worry about our personal security."
Mention Tom Engel's name to almost any Edmonton cop - especially the ones working internal affairs - and you'll get a frustrated growl in reply. "The majority of complaints sent the chief's way, certainly if there's any lawyers involved, Tom Engel is usually behind them," says Staff Sgt. Peter Ratcliff, president of the Edmonton Police Association.
"He's just irascible as hell when he needs to be," says fellow criminal lawyer Peter Royal. "He's like a dog with a bone. He just never lets it go."
Engel's face is in the news a lot because so many of his clientele have a big axe to grind. If the justice system held a popularity contest, no one would bet on him to win.
"I know that I'm not well-liked, but it doesn't bother me," Engel told the Sun recently. "I mean, it comes with the territory. If you take a look at the oath that a lawyer swears when they're admitted to the bar, it's your duty - your sole loyalty is to your client and you are to disregard anything bad that might come personally to you (as a result)."
Fresh from the University of Calgary law school's class of 1979, Engel started his career at an Edmonton law firm representing insurance companies and banks collecting debts. It wasn't his style, so he switched to criminal law, eventually starting his own firm in 1995.
Five years later he found himself on the Criminal Trial Lawyers Association's police conduct committee. Since then he's represented dozens of people with complaints against cops and prison workers - an area of law that few lawyers relish.
"It's not as if I go out there looking for people to make complaints against the police," he says. "I mean, they come to me. I probably on average get at least two calls a day, and a lot of it comes from other lawyers."
Engel was born in Toronto, the son of a United Church minister. He lived all over Ontario in his youth before settling in Alberta in 1973 at the age of 20. "I guess even back then I kind of had an interest in challenging authority," he laughs. "That's probably my family background. My mom and dad sort of had that kind of challenge-authority attitude."
He's married with four children, aged 16 to 28. His wife, AmberLee, is a journeyman chef, writer and actress.
Friends joke that he has to behave himself in his personal life because so many cops would love to pull him over.
Engel frustrates police officers because "sometimes it seems like he just doesn't know when enough is enough," complains Ratcliff.
"Maybe his clients aren't willing to accept when the police or the law enforcement review board say that there is no evidence, nothing to substantiate an allegation. He's not always too keen on accepting it ..."
And he's unpopular with some lawyers "who he's been critical of from time to time," says Royal. "If Tom thinks a fellow's been badly represented, he won't pull his punches."
Defence lawyer Robbie Davidson, who's known Engel for 20 years, says he deserves credit for his ethics - and his fighter's instincts. "You're not going to survive in that arena of law unless you have a strong belief in the right of the individual and that the power of the state should be used appropriately, and you're prepared to put your heart and soul into it. If you're not, you're just not going to succeed," he said.