EDMONTON - Police may have used civilians in the surveillance of a newspaper columnist and the former police commission chairman who were targeted in the Overtime drunk-driving operation, internal police documents reveal.
One of the civilians may also have been the source of the anonymous tip, upon which police relied, in part, to justify the controversial operation.
Among the documents are the final report of the internal investigation and an official transcript of police radio communications. The Journal obtained the documents earlier this week after its lawyers successfully unsealed a court file.
The transcript identifies the civilians as members of the Community Police Radio Network, volunteers who assist police in drunk-driving operations. From the transcript, it appears CPRN volunteers were involved in the Overtime incident as observers.
At one point, two officers -- Sgt. Glen Hayden and Const. Jim Smyth -- discussed not using these civilians as witnesses. Instead they agreed to make any potential traffic stop of the targets appear to be routine.
Despite this, two sources familiar with the internal investigation say no civilians were ever interviewed by investigators.
Stephen Jenuth of the Alberta Civil Liberties Association said it is frightening that police might use civilians for such purposes.
It's almost like a Stalinesque operation where the state wants to have a community of informers, the Calgary lawyer said. The whole thing strikes me as very weird, very frightening.
On Nov. 18, seven officers, including three in plain clothes, staked out the Overtime Taproom & Grill in downtown Edmonton for more than four hours during an informal function sponsored by the local chapter of the Canadian Association of Journalists, of which Edmonton Sun columnist Kerry Diotte is president.
The stakeout became public because reporters monitoring police radio scanners heard the officers discussing the operation. Then police chief Fred Rayner ordered an internal investigation, overseen by Calgary police deputy chief Murray Stooke, who delivered his final report and recommendations to Rayner in mid-January. In a Feb. 3 press conference, Rayner contended that the drunk-driving operation was routine.
He said police legitimately targeted Diotte after receiving an anonymous tip that he might drink and drive. Then police commission chairman Martin Ignasiak became a target after he was observed by a plainclothes police officer, Rayner said. The former chief also said that officers also observed patrons in the bar and ended the operation only after they were satisfied that others in the bar that night would not drive.
Stooke, during his review of the internal investigation, asks a question that raises doubts about whether the operation was routine.
Why was Mr. Ignasiak provided with a 'T' (for target) designation when there were other persons in the Overtime who appeared impaired, and were under observation by the team, who were not so designated?
Stooke is referring to a section of the police radio transcript in which police observe a man, dressed all in black, who is seen by police officers to be stumbling drunk outside the Overtime bar. He then goes back inside, yet the officers appear to show no interest in designating him as a potential target.
Stooke, in his report, also points out that the police service's own policy in relation to drunk-driving operations does not authorize the use of close surveillance as occurred in the Overtime incident.
Additionally, the members assigned to this duty in 2004 Nov. 18 did not appear to be adequately trained or equipped to carry out close surveillance in an efficient manner.
Stooke also observes that none of the officers involved in the operation took any notes.
It was suggested that no notes are required when an investigation does not result in charges, he said. Respectfully I disagree.
Speaking specifically to the lack of notes of the Overtime surveillance, the note-taking standard as taught in surveillance training is that all members, including supervisors, are required to record contemporaneous notes.
Through documents obtained through a Freedom of Information request, The Journal also learned that none of the officers involved in the Overtime incident filed the standard police form required, and routinely filed, for such operations. The full report of the internal police investigation has not been released because three officers are still awaiting disciplinary hearings in relation to the Overtime incident.
A Court of Queen's Bench judge has overturned an order sealing documents relating to the Overtime bar investigation, aware it could leave the police officer involved red-faced.
Yesterday, Justice Erik Lefsrud repealed an order to seal the documents, including police radio-communications transcripts of the controversial stakeout, after an application was granted earlier by Const. Jim Smyth.
The transcripts show the officer using what he calls locker room talk and include the use of profanity and other words deemed offensive.
I recognize the embarrassment he may have, but I am opening that sealing right now, said Lefsrud, adding the officer was not a rookie.
Smyth was present in court, but declined comment through his lawyer, Robert Hladun.
The long-serving cop told the Sun earlier that the language used in the tapes was not intended for public consumption and that he understood why some people might find it shocking.
At one point, an officer looking to arrest Sun columnist Kerry Diotte makes reference to a couple faggy-looking guys ... Maybe one of them's him. The same officer says the arresting cop will never have to pay for a drink as long as he lives.
The application stems from Smyth's involvement in the Nov. 18 Overtime incident, which saw police officers accused of staking out the downtown bar in an improper bid to catch Diotte and former police commission chairman Martin Ignasiak driving drunk.
Police launched an investigation, and in April, Smyth was charged with discreditable conduct. He now faces internal disciplinary proceedings.
In court yesterday, Hladun argued to stop the proceedings, which are scheduled for Oct. 13.
Hladun says police broke their own rules by taking longer than three months to charge him with the Police Act offence.
He said those rules indicate charges must move along expeditiously so that matters such as this one aren't hanging over officers' heads.
But police lawyer Donald Wilson believes Smyth was charged within the proper three-month window. Wilson said a recommendation to charge Smyth was made in January by Calgary deputy police chief Murray Stooke, who reviewed EPS investigations into the Overtime incident.
We know the Edmonton Police Service, the police commission and the City of Edmonton did have concerns that someone independent review this matter, he said.
Documents supporting Smyth's motion were also opened by the judge's decision.
Lefsrud reserved decision in the matter, but is expected to return with a finding shortly.
Two other police officers - Staff Sgt. Bill Newton and Insp. Bryan Boulanger - also face disciplinary hearings this fall.
EDMONTON - A few days after the controversial Overtime stakeout incident in November, Const. Jim Smyth's two immediate supervisors formally counselled him about the inappropriate language he had used on the police radio.
On Tuesday, Smyth's lawyer, Robert Hladun, told a Court of Queen's Bench judge the counselling was all the discipline Smyth required by law and any further disciplinary action by the Edmonton Police Service would constitute double jeopardy.
This was one of the arguments advanced by Hladun in a bid to have the court quash Smyth's disciplinary hearing. The veteran traffic constable faces a charge of discreditable conduct for using profane, vulgar and other inappropriate language in a police radio broadcast.
Donald Wilson, the EPS lawyer, dismissed Hladun's double-jeopardy argument.
Wilson told the court there was no record of any formal counselling of Smyth by sergeants Glen Hayden and Conrad Moshansky. And even if there was, such counselling does not supersede the chief's authority to order a disciplinary hearing. If it did, there wouldn't be any discipline, Wilson said.
If you (an officer) do something, you could get your supervisor to call you in for a chat and you would be insulated from discipline -- think about that, Wilson told Justice Eric Lefsrud.
Hladun also argued Smyth's right to due process had been breached because the police service failed to charge him within the three-month limit prescribed by the service's own regulations.
Smyth contends he should have been charged no later than Feb. 25, since he was notified of an investigation into his involvement in the Overtime incident on Nov. 25, 2004. Smyth wasn't charged until April 5 this year.
But Wilson pointed to documents which showed there was an initial internal investigation of the Overtime incident and based on that investigation, it was recommended that a second investigation be conducted into Smyth's conduct as it related to his use of the police radio. That second investigation didn't begin until Jan. 31, 2005.
The internal disciplinary hearing stems from a Nov. 18, 2004, police drunk-driving operation that targeted then police commission chairman Martin Ignasiak and Edmonton Sun columnist Kerry Diotte.
The two men were attending a social gathering sponsored by the Canadian Association of Journalists at the downtown Overtime Taproom and Grill.
Witnesses said neither men were drunk and took cabs.
Lefsrud reserved his decision, which he promised to deliver promptly.
In another related matter, Lefsrud lifted a sealing order on court documents related to Smyth's application to quash his disciplinary hearing. The sealing order was granted to Smyth by Court of Queen's Bench Justice Paul Belzil last month in a private hearing in his chambers with no notification to the media.
Journal lawyer Fred Kozak argued there are stringent rules for the application of sealing orders. These rules are intended to ensure the openness and transparency of the justice system and have been upheld by the Supreme Court of Canada in at least four cases.
Kozak said Belzil granted the application without evidence, without consideration of the relevant legal test, and without notice to the media, as required by law.
Hladun told Lefsrud that courts have enjoyed the discretion of granting sealing orders on a case-by-case basis. Lefsrud, however, cut Hladun's argument short, saying he had a number of problems with this sealing order.
Lefsrud said Hladun should have notified the media before Belzil heard the application.
In all cases the openness of the (justice) system must be protected, Lefsrud said.
The following are excerpts from a tape of police radio communications on the night of the controversial stakeout at the Overtime Broiler and Taproom, obtained by The Journal. T1 is Sun columnist Kerry Diotte; T2 is police commissioner Martin Ignasiak. P is for police officers.
P1: Sorry, that was a little confusing. What was it? The plan there?
P3: Well, when we're doing the Overtime ... we're trying to get in a place and make the observation ourself, of someone leaving the bar, or leaving the lot of the bar, whatever the ones being targeted and then we don't have to use them as witnesses ... we wouldn't have to use you guys as witnesses -- just seen a car leaving the bar, pulled him over as part of our TADD duties and lo and behold.
P1: Well, I think that's exactly how it's going to pan out.
P1: You just want free drinks for the rest of your life, that's all.
P3: Anything that's bought is never anything that I drink anyways.
P1: Yeah I think the guy who gets this target will never have to pay for a drink as long as he lives.
P3: What's your opinion? I've done three roadside tests since the training last spring. Would it be better to have you do the roadside test and the other one?
P1: A guy with one eye and half an a***** could do a roadside test.
P3: I'm just closing up the holes. I can do it. I've done three of them. I know how to do them. But wouldn't it be better to have the instructor do it?
P1: Negative. Don't even suggest something like that. It brings the credibility of all of them down.
P4: You call that work?
P3: I don't think he writes any columns Fridays. If he did they had already been done anyways, but I think he just writes Tuesday, Wednesday, Thursday.
P4: I heard they're cut and pasted from the Internet.
P1: You know what -- I'd do his job and I'd do it better than him. A f***** idiot can write that up in about five minutes.
P4: Nobody is dressed like he is anyway, so he will stick out. He's got a real bright royal blue button-up shirt with a tie on and a sport jacket and his shiny, shiny dome.
P1: A couple faggy looking guys coming out now. Maybe one of them's him.
[The police can no longer locate T1. They spot T2, and focus on him.]
P3: ... Who's T2 with?
P1: I don't know who he's with, but I'm sure they're drinking buddies ... .
P3: OK, we will just check. We're on the way to check T1's car, as in R1 [Diotte's residence], and then we will get back. We will run a name here and see what we can come up with. I don't know if maybe that's the right thing to be doing right now but -- do we want anything on the system?
P1: Well, I know it can cause a problem, but you know what? With the two eyes inside, we're probably OK. When he gets up to leave, we'll just get them to give us a phone call and tell us he's coming out of the door now and we will just see which V [vehicle] he goes to. Yeah.
P1: We'll know before he hits the door. As soon as he grabs a jacket or anything to put it on, we'll get the call.
[T2 leaves the bar and hails a cab]
P3: Oh well, we gave it the good old college try.
P1: Well, I think we will be able to tag T1 on another day, another time.
P1: Actually, you know I think I want to go have a look by his house myself. I want to eyeball it. Somehow it makes it easier to keep an eye on somebody when you have that familiarity.
P3: You can't miss it. It's got two pillars in front of his driveway with lions on them.
The following are excerpts from a tape of radio transmissions on the night of Nov. 18, 2004, obtained by The Journal. T1 is Edmonton Sun columnist Kerry Diotte, T2 is police commissioner Martin Ignasiak and P stands for police officer.
P4: I will go wandering through there again.
P5: Okay, I will take your spot. Might even follow up with Plan B if you know what I mean. -- That was pretty fast.
P4: Yeah, he is still in there, drinking beer and he has found a table to sit at so he found some friends. People like that don't have friends. Maybe he is buying the drinks.
P5: We got a lot invested in this and maybe we will stick it out now until the end and see what happens. We can make it up later.
P3: Oh, for sure -- no problem justifying our time here.
P5: Yeah, I agree.
P1: I hope the information that they have that he is leaving shortly is good.
P5: Yeah apparently it comes in via an anonymous caller, so -- (laughing) -- inside job. How is my cloak now, Glenn?
P3: Do you want to hear the message? We just had it forwarded to us.
P3: FYI an anonymous caller stated that target, his occupation, is extremely 10-18 (drunk) at the O.T.(Overtime) downtown and will be driving home in a dark-coloured vehicle. You know what that is, the make, parked at the location. This is a regular occurrence for so-and-so, the target, T1, and the caller is fed up with T1's hypocritical editorials about drunk drivers and any police comments.
P3: Yeah, Smitty. We have been talking here. I'm not comfortable at all doing this roadside.
P4: Might not need to.
P5: I'm kidding. I can't wait to do the test.
P3: We better haul him up there, you think -- or should we go to the closest one? -- He might have a good lawyer!
P1: I'm getting a f****** chubby (erection).
P5: Ian said the group that he was with -- they're all gone. And he couldn't see him in the bar proper, so he was going to go back and have a quick look through the john, to see if he missed him in the pisser.
P3: Maybe ... if that's a negative there, Conrad, have Ian check the Louisiana Purchase there next door ... The Sidetrack might be a location too.
P5: A big zero in the first location. A few of his cronies are still there, but he is not. And it has thinned out almost to nothing.
P1: And he wasn't hurling in the bathroom or anything?
P5: Negative. He cleared that.
P2: He is on his way to the other locations.
P2: Yeah, two bodies just went from the north of Overtime there, then they walked towards Sidetrack.
P1: OK, guys. T2 (Martin Ignasiuk) is out front now. He is on a cellphone. He tried to flag down a cab that drove by there, so it doesn't look like he is going to get behind the wheel here.