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WINNIPEG - The lawyer for a key witness against James Driskell says he was shoved by officers and screamed at by a Crown attorney in 1991 when he advised his client not to talk to police.
David Kovnats, the lawyer for Ray Zanidean, told the inquiry looking into Driskell's wrongful conviction for murder that the incident took place just 16 days before Zanidean took the stand.
Kovnats said Thursday that he told his client he did not have to talk to anyone but the trial judge.
"It was after that that (Crown attorney) George Dangerfield started yelling and screaming, got in my face, told me I was going to be charged with obstruction," Kovnats testified.
"The whole situation was scary. George Dangerfield was within an inch of my nose, he was yelling and screaming . . . I'm grabbed by a couple of policemen and shoved into a room. I haven't been in any kind of tussle since I was a little kid."
Kovnats, whose law practice is usually centred on commercial law and real estate, said he jammed a table under the door knob while he used his cellphone to try to call another lawyer for help.
Although he could not identify any of the police officers involved, Kovnats said Dangerfield later apologized to him.
Ray Zanidean - RCMP informant paid to perjure testimony against Jim Driskell. Allowed to get away with serious arson.
Dangerfield's lawyer, Jay Prober, objected to Kovnats' testimony, but Driskell's lawyer, Lawyer James Lockyer, said the incident helps establish the credibility of Dangerfield when he testifies.
Driskell spent 12 years behind bars for the murder of his friend, Perry Dean Harder.
Four years ago, Driskell's conviction was quashed by the federal Justice Department after DNA tests proved hairs used to convict him were not Harder's.
Much of the inquiry so far has focused on the testimony of Ray Zanidean (right), who said he saw Driskell kill Harder.
However, the inquiry has been told that Zanidean was paid more than $80,000 by Manitoba Justice for his testimony and was promised immunity on an arson he had confessed to.
Driskell's trial lawyer, Greg Brodsky, was never told about the deal and it has been suggested he could have used that information to discredit Zanidean on the stand.
A senior Manitoba Justice official promised Ray Zanidean immunity from prosecution for a Saskatchewan arson in December of 1990 - six months before he was the key witness at James Driskell's murder trial, Zanidean's lawyer David Kovnats said yesterday.
The promise came from the late Bruce Miller, then Manitoba's director of prosecutions, Kovnats told an inquiry into Driskell's wrongful conviction for killing Perry Dean Harder.
A former Winnipeg police sergeant has accused an RCMP officer of lying and fabricating reports during testimony at the inquiry into the wrongful conviction of James Driskell.
Driskell spent 12 years behind bars for a 1990 murder before the federal justice minister quashed his conviction last year.
One of recurring themes so far in the inquiry, which began July 17, has been miscommunication between the RCMP and the Winnipeg Police in relation to the treatment of Ray Zanidean, who was an important and controversial witness at Driskell's trial.
The inquiry has heard that Zanidean demanded and received tens of thousands of dollars and other perks in exchange for his questionable testimony, while threatening to change his story or recant altogether. Driskell's lawyers and the jury at his trial were not made aware of the deals, the inquiry was told.
Officers for the RCMP and Winnipeg police don't agree on how an immunity deal was reached for Zanidean, who was wanted by the RCMP in Saskatchewan for an arson.
Retired Winnipeg police sergeant Tom Anderson told the inquiry Tuesday that it was a Saskatchewan RCMP officer who offered to delay an investigation into the arson in Swift Current, Sask. The RCMP officer, Ross Burton, previously testified it was police in Winnipeg who offered the immunity deal.
In questioning Anderson, Driskell's lawyer, James Lockyer, asked about Burton, who testified in the inquiry's first days.
"Burton told us that in the first call with you, sir, he got an immediate impression of you being deceitful and dishonest how come?"
Anderson replied that he didn't know and that it seemed to him that Burton misunderstood and misrepresented most everything he had ever said.
"It's as if Const. Burton was speaking one language, and I was speaking another," he said.
'Didn't expect an RCMP officer to lie'
Lockyer then pointed out several holes in Anderson's documentation about Zanidean and asked Anderson why he hadn't kept better notes.
"I was a little more naive in those days than I am today. I expected an RCMP officer to keep his word and not lie," Anderson said.
"I didn't approach investigations as if there would be an inquiry 16 years later and that someone who could confirm my evidence would be dead. I didn't expect an RCMP officer to lie and falsify reports. So I may have taken fewer notes than I would today, if I was doing this again."
The senior prosecutor in the Driskell case has died since the case was tried.
Driskell's first-degree murder conviction for the 1990 killing of Perry Dean Harder was quashed in 2005 after he had served more than 12 years in prison.
The justice minister cited several reasons for his decision, including new DNA evidence that showed hairs found in Driskell's van did not belong to the victim - as the Crown argued at trial - as well as problems with key witnesses and a lack of disclosure of information that could have helped Driskell's defence.
The Manitoba government then stayed the charges against Driskell, which keeps him out of prison but does not officially exonerate him.
The inquiry is probing the role of police, the actions of the Crown and questions of disclosure in the case. The commissioner has also been asked to determine when someone has met the threshold to be declared factually innocent or wrongly convicted.
The inquiry is expected to run another three weeks.
A lead investigator into Perry Dean Harder's murder accused an RCMP officer Tuesday morning of lying about the events that led to Ray Zanidean getting immunity for an arson charge before he testified against James Driskell in 1991.
Retired city police homicide sergeant Tom Anderson told the inquiry into Driskell's wrongful conviction that it was Swift Current RCMP Const. Ross Burton who offered to delay pursuing an arson investigation until Zanidean had testified in the murder trial against Driskell.
Burton has previously testified that Winnipeg police pressed for immunity against the arson charge.
Anderson said this morning that he would never have asked any police agency to hold off on criminal charges. "That was coming out at the trial, come hell or high water," said Anderson, stressing several times that police do not 'buy' testimony by having other charges stayed.
"I was a little more naive than I am now. I expected an RCMP officer to keep his word, and not lie," Anderson said. "It's as if Const. Burton was speaking one language, and I was speaking another."
RCMP lawyer David Gates was incredulous that Anderson would claim to accept the immunity deal solely on the basis of a phone call with a constable he'd never met, after Anderson said such a deal in Manitoba would require the approval of the justice department.
"It allowed you to fulfil one of Mr. Zanidean's conditions for becoming your most important witness," Gates said.
Gates pointed out that Anderson was the only Manitoban to deal with Burton, and that senior police and Crown attorneys here relied on what Anderson was reporting to them.
Anderson said that, because RCMP in Winnipeg needed Zanidean to be free of charges before going into witness protection, he assumed others here were talking to Saskatchewan officials.
The 10th day of the inquiry into Driskell's wrongful conviction for Harder's murder pitted Driskell lawyer James Lockyer against Anderson.
Lockyer alleged that Anderson and his retired partner sergeant Albert Paul had created stories after the fact and were part of a police and Crown culture that led them to believe "that you thought you could get away with everything."
"You're dead wrong about that, Mr. Lockyer," Anderson replied time after time after time.
Anderson agreed with Lockyer that many events and meetings did not go into his notes or reports, but said he had not foreseen that an inquiry would be held 15 years later at which he would be expected to have documented every move he made.
"I didn't expect an RCMP officer to lie or falsify reports," Anderson said, nor did he expect that someone would die who could have corroborated his version of events - the late Bruce Miller, then Manitoba's director of prosecutions.
Paul testified Monday that Miller told Anderson and Paul several days before Zanidean's testimony at Driskell's trial on June 11, 1991, that he had arranged immunity for Zanidean through Saskatchewan justice.
Paul told the hearing that Miller had ordered them not to tell Zanidean prior to his giving evidence at the murder trial, so that, Paul believed, the jury would not question Zanidean's credibility.
Anderson said Miller was among several officials who favoured keeping Zanidean's immunity from him before he testified at Driskell's trial.
Lockyer threw at Anderson an accusation that Anderson and Paul told Zanidean and another witness to call Crime Stoppers, so that they would get a reward after already co-operating with police.
"You do not see that as corrupt?" Lockyer asked.
"I don't think it was seen as corrupt. It may have happened. It's the kind of scenario where that could have happened," Anderson replied.
Lockyer alleged that the case had "a lot of fishy practices."
Anderson remains on the witness stand this afternoon.
A lawyer is questioning whether cops ever met with a top justice official who supposedly detailed a hush-hush immunity deal for a star witness in the original James Driskell trial.
Retired Winnipeg police Sgt. Al Paul told lawyers for the Driskell Inquiry that he went to a meeting with senior Crown attorney Bruce Miller around the time key witness Ray Zanidean testified against Driskell in June 1991 for the murder of Perry Harder.
It was at this meeting, Paul told the inquiry, that Miller said Zanidean wouldn't be charged for torching a Saskatchewan home, and outlined instructions not to tell Zanidean about the plan until after he testified against Driskell.
"I suggest you never had a meeting with Mr. Miller," said Driskell lawyer, Alan Libman. Paul said several times that he and his partner met with Miller to discuss the deal, although he can't remember the date or the length of the meeting and didn't make any notes about it.
Since officer's notebooks and reports are used to communicate with Crown attorneys, police union lawyer Richard Wolson told the inquiry Paul wouldn't need to make notes about a meeting such as the one with Miller because the justice department would already have the information they needed.
Always maintaining his innocence, Driskell spent 12 years in prison for Harder's murder. He was freed in 2003 after former federal justice minister Irwin Cotler declared a miscarriage of justice had likely occurred.
The inquiry continues Tuesday morning at the WInnipeg Convention Centre with testimony from Paul's former partner, retired Sgt. Tom Anderson.
Cops and Crown attorneys spent nearly $85,000 on the star witness whose testimony put James Driskell behind bars, an inquiry has heard.
A total of $84,973.26 was "paid by the Crown to (Ray Zanidean) for his benefit," according to a federal Justice Department document unveiled yesterday at the ongoing Driskell Inquiry.
The document, prepared by a federal justice department lawyer in 2004, was scrutinized by lawyer James Lockyer -- who is representing Driskell at the inquiry -- as he grilled a retired Winnipeg police officer about the "benefits" Zanidean received.
The lead investigator on the 1990 murder of Perry Dean Harder, Staff Sgt. Bill VanderGraaf, disputed Lockyer's use of the term "benefits" to describe the payments, pointing out nearly $30,000 was handed to the Mounties for the cost of RCMP protection.
"I don't think they're benefits, they're expenses," VanderGraaf said, calling it "common practice" in the RCMP Witness Protection Program.
Though he had some harsh words about money spent on Zanidean, Driskell said outside the proceedings yesterday that he already knew there'd been some "major payouts," including one to fly Zanidean's dogs halfway across the country. "Are they going to testify?" Driskell asked, tongue-in-cheek.
The inquiry heard earlier that Zanidean received a $20,000 cheque from police and prosecutors to help Zanidean move his family for safety reasons, rather than going into the formal Witness Protection Program.
VanderGraaf was the officer tasked with delivering the cheque. He told the inquiry yesterday he was instructed to do so in a memo from senior Crown Bruce Miller.
Lockyer said the defence wasn't told about the lump sum at Driskell's 1991 jury trial or during the subsequent appeal of his conviction. Lockyer said that information should have been disclosed to defence lawyers before the appeal.
"Appeals are something I don't pay much attention to. It's a Justice Department situation," said VanderGraaf, adding prosecutors were aware of Winnipeg police's dealings with the Driskell case.
"So you're saying if the fault lies anywhere, it's with Manitoba Justice," Lockyer asked VanderGraaf yesterday.
"I think so," he said.
After outlining the nearly $25,000 paid to Zanidean before he testified at Driskell's trial, the federal Justice Department document released yesterday goes on to criticize prosecutors.
"The Crown did not correct the misleading nature of Zanidean's testimony regarding the consideration he had received," it states.
At Driskell's trial, Zanidean told the court he was only getting room and board from "the government." That assistance was supposed to end that very day, unless he was needed at the trial the next day, courtroom transcripts filed for the Driskell Inquiry show.
Payments for Zanidean continued after the June 1991 trial.
The estranged wife of cop informant Ray Zanidean dropped a bombshell when she met with police at her B.C. home last week, Sun Media has learned.
Susan Zanidean told RCMP her husband claimed he stood guard while two other men buried the body of Perry Dean Harder in 1990.
"(She) advised that her husband and (two other men) sat at her table and talked about what to do with Perry and burying Perry's body in the garage and putting cement over the body and he'd never be found," RCMP Cpl. Dale Morgan wrote in a police report obtained by Sun Media.
"She begged Ray not to hang around with (name withheld by the Sun) anymore. Ray said he had one more job to do with him and all he had to do was to go out to this area, and that is the area where the body was found, and keep six, and that's all (he had) to do."
Keeping six is a street term for keeping watch.
Susan Zanidean was never questioned by police regarding the Harder murder, which James Driskell was convicted of in June 1991. Her husband's testimony was key in putting Driskell behind bars.
RCMP interviewed Susan Zanidean last week following a complaint of domestic abuse against Ray Zanidean.
ALWAYS MAINTAINED HIS INNOCENCE
Driskell -- who has always maintained his innocence -- served 12 years at Stony Mountain Penitentiary before former Justice Minister Irwin Cotler declared in 2003 that a miscarriage of justice had likely occurred.
Driskell is now free, though he has never been exonerated. A judicial inquiry into his conviction and the conduct of cops and Crown attorneys is ongoing and is scheduled to wrap up in the fall.
According to the police report, Susan Zanidean feared for her safety when she married her estranged husband in 1990, the year Harder was killed.
"Ray was involved in the Perry Harder murder case in Winnipeg. (He) conned me into marrying him so I would have witness protection," Susan Zanidean told Cpl. Morgan on July 20.
"Ray is suspected of perjury in the murder trial, so the media comes down. Our reputation is totally destroyed. I had a nervous breakdown. This was the first time I had ever told anybody about the haunting last job Ray had done."
An ex-city cop told an inquiry he didn't make any promises to a star witness about being cleared of arson charges.
Former Winnipeg police Sgt. Tom Anderson came under intense scrutiny yesterday at the ongoing inquiry into James Driskell's 1991 conviction for the murder of Perry Harder -- a crime Driskell maintains he didn't commit.
There have been allegations police informant Ray Zanidean was granted immunity from torching a Swift Current, Sask., home so he'd provide testimony at Driskell's 1991 trial. Anderson was one of Zanidean's handlers.
Commission counsel Michael Code questioned a signed police statement Anderson wrote that stated "We are not aware of any stayed charges or any other deals made with any witnesses in exchange for testimony."
The note -- dated May 18, 1991 -- was forwarded to lawyers for use in the case against Driskell. With discussions about a no-charge deal with Zanidean going on months before the statement, Code questioned the document's fairness and accuracy.
"First of all, no deals were made for Ray Zanidean about anything," said Anderson, who told police in Swift Current about Zanidean's involvement in the fire.
'IN EXCHANGE FOR NOTHING'
"I don't see anything untrue about that statement to this day. Ray Zanidean's testimony was in exchange for nothing. No immunity or anything else."
Grilled on why he didn't mention the Saskatchewan arson in most of his police reports, Anderson testified it was because he was working on a Winnipeg homicide case, not a serious fire in another jurisdiction.
Insp. Ross Burton, an RCMP officer in Saskatchewan, made a report in July 1991 claiming Anderson said part of the deal for Zanidean's testimony was that he wouldn't be charged for the arson.
Code said David Kovnats, the former lawyer for Zanidean, has been called to testify when the inquiry resumes on Monday.
James Driskell's lawyer is demanding answers after an exclusive Sun Media story detailing new claims from the estranged wife of a police informant whose testimony helped put his client behind bars for a murder he says he didn't commit.
"I think I need some information from you," James Lockyer said to a Sun reporter when approached yesterday about the claims.
As the Sun reported yesterday, Susan Zanidean recently told Mounties her husband claimed he stood guard while two other men buried the body of Perry Dean Harder in 1990.
"(She) advised that her husband and (two other men) sat at her table and talked about what to do with Perry and burying Perry's body in the garage and putting cement over the body and he'd never be found," RCMP Cpl. Dale Morgan wrote in a police report obtained by Sun Media.
Ray Zanidean was a star Crown witness at Driskell's original trial in June 1991. His involvement in the case has become the subject of much scrutiny, partially because he was never charged for torching his sister's Swift Current home even though he made a confession to police.
Susan Zanidean was never interviewed by police for the Harder murder. Her claims came to light after lodging a domestic-related complaint with B.C. RCMP.
Cops and lawyers were largely tight-lipped after the story appeared in the Sun yesterday.
Most seemed uncertain whether the woman's claims would affect the ongoing judicial inquiry into Driskell's 1991 conviction. He served 12 years of a life sentence for Harder's 1990 murder before then-federal justice minister Irwin Cotler overturned his conviction in 2003.
Driskell, who's always maintained his innocence, is now free -- though he has never been exonerated.
Michael Code, the inquiry's top lawyer, wasn't firm on what affect the claims could have on the inquiry. One of the inquiry's main goals is to examine the conduct of cops and Crown attorneys, not to assign blame in the Harder homicide.
"I hope not. We'll have to see. You'll have to remember, our inquiry is retrospective," Code told the Sun during a break in yesterday's proceedings.
An RCMP lawyer, David Gates, seemed uncertain how a possible investigation into Zanidean's claims could affect the inquiry.
City of Winnipeg lawyers Kim Carswell and Richard Wolson, who are representing past and present Winnipeg police officers at the inquiry, declined comment.
Outside the inquiry, Driskell wouldn't say much about Susan Zanidean's claims.
"It's a little too early, just wanting to see what happens," he said.
James Driskell's original lawyer apparently didn't get the goods from cops and Crown attorneys about an arson committed by the man whose testimony helped put Driskell away.
While defending Driskell in the 1990 murder of Perry Harder, Greg Brodsky tried to find out what Winnipeg police knew about an arson in Swift Current, Sask.
Documents filed at the ongoing Driskell Inquiry yesterday show that in an April 25, 1991, letter, Brodsky asked prosecutors to disclose information about three fires, including the 1990 arson in Swift Current that had ties to Driskell's case through one of the Crown's star witnesses. Though Winnipeg police had some details surrounding the case -- which was handled by the RCMP -- a letter to Brodsky from the Crown says they didn't.
"Winnipeg police have nothing on these incidents," says a letter from Crown prosecutor Gregg Lawlor dated April 29, 1991.
"In any event, we know you've got something on the Swift Current arson ... Lawlor's letter doesn't reflect that," Driskell Inquiry lawyer Michael Code asked now-retired Winnipeg police Staff Sgt. Bill VanderGraaf yesterday.
"I can't explain that, sir," VanderGraaf replied.
The lead investigator on Harder's murder, VanderGraaf also couldn't explain why a major development -- word that Swift Current Mounties were "backing off" on their pursuit of key Driskell witness Ray Zanidean until after Driskell's trial -- wasn't documented by Winnipeg officers.
VanderGraaf said he happened to be standing beside the cop liaising with Swift Current Mounties as Winnipeg Sgt. Tom Anderson told them about Zanidean's involvement with the fire.
VanderGraaf testified yesterday Anderson didn't mention the RCMP's supposed offer not to go after Zanidean in his notebook, which included other details about the October 1990 call.
Notebooks from a then-RCMP constable who spoke with Anderson, Ross Burton, hadn't been turned over to the inquiry by last week. But one of the Mountie reports submitted as evidence mentions the October 1990 call.
Unlike Anderson's notebook, which reportedly contains immediate entries, Burton's report was written well over a year after his original conversation with Anderson.
Zanidean's testimony was a key part of Driskell's 1991 conviction for a murder he's always insisted he didn't commit.
While speaking to Winnipeg police about the Harder slaying, Zanidean confessed he and Driskell torched a Swift Current home owned by his sister.
City cops passed the tip along to Mounties in the small Saskatchewan community, who earlier testified the fire was viewed as a "serious crime" in Swift Current. No charges were ever laid.
A star Crown witness who helped put James Driskell behind bars received thousands of dollars from justice officials even though he was being eyed as a potential suspect in the very murder about which he'd testified, documents from the Driskell Inquiry show.
Ray Zanidean received approximately $20,000 from Manitoba Justice for his involvement in Driskell's June 1991 trial for the murder of Perry Harder. Almost two years later, cops may have been looking at him as one of the suspects in the slaying, according to comments attributed to Winnipeg police Chief Jack Ewatski, then an inspector with the department.
"Insp. Ewatski stated that they had some very pointed questions to ask Zanidean at (sic) it appeared he knew more about the murder, etc., than what he had advised police. In fact, there was a possibility that Zanidean was involved in the murder itself," states a handwritten note from RCMP Cpl. Tom Orr dated May 5, 1993.
The now-retired Orr was the co-ordinator for the RCMP's Witness Protection Program around the time of the 1991 trial and testified yesterday at the ongoing inquiry into Driskell's conviction.
John Gumeiny - RCMP informant. Winnipeg Police are now looking for him in connection with a rape in Winnipeg. He had also been convicted of rape when he sold his perjured testimony against Jim Driskell.
As with Zanidean, cops and Crowns had a difficult time dealing with John Gumieny (right), another witness whose testimony helped put Driskell in jail for a murder he insists he didn't commit. Police had concerns about Gumieny's safety from the start, which is why efforts were made around the time of the trial to offer protection.
Driskell held Gumieny "in high esteem as a trusted friend and when he discovers that Mr. Gumieny has given evidence against him, Mr. Gumieny's life will be in grave danger. Police have gathered intelligence that Driskell has a small army of dedicated followers who will not hesitate to carry out any of his orders," states a Winnipeg police document submitted as inquiry evidence.
CONTINUED TO SEEK PAYBACK
Close to two years later, Gumieny continued to seek payback for his involvement in Driskell's trial, including a move from Ottawa in May 1993. Although the details of why he needed to relocate were sketchy, there were suggestions it may have been linked to his work as an informant in drug investigations, documents show.
"Depending on what side you are talking to, his reasons for the move range from the recent release of his name in the Winnipeg papers, or his recent activity as a source in "A" division," states the May 28, 1993 fax, sent from then-Cpl. Tom Orr to RCMP headquarters in Ottawa.
Gumieny received $2,874.29 for the rental of a white Ford truck on May 28, 1993, to move his family, a pair of inquiry documents show. Another document confirms a payment of $16,901.52.
In total, it's believed Gumieny received "at least $21,500" from police, said lawyer James Lockyer, who represents Driskell.
"I say at least, sir, since his RCMP file has been lost," Lockyer said while questioning Orr, who quickly corrected Lockyer, noting the file was "destroyed."
Retired city cop Staff Sgt. Bill VanderGraaf will likely take the stand today, commission lawyer Michael Code told the Sun yesterday.
It's another sticky point in the James Driskell saga -- a star witness acting like, well, a fussy star with a laundry list of demands.
Ray Zanidean, whose testimony helped convict James Driskell of the 1990 murder of Perry Harder, was a difficult witness with unreasonable expectations, the ongoing Driskell Inquiry was told yesterday.
"Every time he got something from city police, he wanted more. He wanted it done his way," said retired RCMP Sgt. Tom Orr.
A corporal based in Winnipeg at the time of Driskell's 1991 trial, Orr was in charge of the Source/Witness Protection Program, which Winnipeg police would use for informants and witnesses.
Orr was responsible for handling Zanidean's application into formal witness protection, a process seemingly littered with confusion on the part of both police forces.
"(Zanidean's lawyer) was under the impression ... that the RCMP was going to act as financial benefactor, real estate agent, used car salesperson, etc.," states Orr's handwritten note, dated March 25, 1991.
Among Zanidean's 15 requests was one asking Crown attorneys to sell his 1983 Chevette because he was worried it would be recognized.
"This has become a priority," states a December 1990 letter to the Crown's office from David Kovnats, Zanidean's lawyer. Zanidean also demanded employment "equal" to a gig he'd reportedly been as a brakeman with the CPR.
In addition to a new identity, Zanidean requested immunity from criminal charges -- a controversial point that's been the source of much confusion and speculation since the 1990s.
While Winnipeg police were sorting out his testimony against Driskell, Mounties were eyeing Zanidean for charges of torching a home owned by his sister in Swift Current, Sask.
PAID THE MORTGAGE
Early in Zanidean's agreement to testify against Driskell, he received $700, plus utilities, for the rental of a "safe house" while the Justice Department paid the mortgage on his home.
After Zanidean reportedly received a death threat -- in the form of a note on his car's windshield -- that sum was bumped up to $2,000 for a Calgary hotel room, plus a daily meal allowance of $50.
At one point, officials even signed off on a $436.28 hotel bill that included "a few trips to the mini-bar," documents show.
Eventually, Zanidean received a $20,000 "re-location" payment, the inquiry was told.
Zanidean was never admitted to the formal Source/Witness Protection Program.
A top Mountie was worried about the appearance of a "coverup" mere weeks after James Driskell's 1991 murder trial, an inquiry heard.
Less than a month after Driskell was convicted for the murder he's always insisted he didn't commit, now-retired Staff Sgt. Ron Ferguson sent a memo to RCMP superiors outlining concerns about the potential perception of concealed evidence, an inquiry into Driskell's conviction heard yesterday.
In his report, Ferguson states Driskell and his lawyer, Greg Brodsky certainly knew that information and evidence Driskell could provide would result in a conviction against Ray Zanidean.
"Failure to act accordingly could place our force in a tenuous position as our investigation and charges would assist their appeal on the murder conviction," the report states. "Failure to respond judicially could be construed as an attempt at concealing evidence similar to the Donald Marshall case."
Donald Marshall: spent 11 years behind bars for a murder he did not commit
Donald Marshall (right) of Nova Scotia served 11 years for a 1971 murder he did not commit.
An officer for over 30 years around the time of Driskell's trial, Ferguson served as Swift Current's police chief. His department had a stake in Driskell's trial, in which he was convicted of killing Perry Harder.
Testimony from Zanidean -- whom police suspected of torching his sister's Swift Current home -- helped put Driskell behind bars.
Ferguson, posted in Swift Current in the early '90s, confirmed the report's contents as he took the stand yesterday. Ferguson is the second witness to be called since the Driskell Inquiry started Monday.
"This afforded me some concern," Ferguson told inquiry lawyer Michael Code.
There have been conflicting rumours and speculation for years about whether Zanidean was given immunity from the Swift Current arson charges to testify against Driskell in Harder's killing.
Winnipeg police documents indicate a Swift Current constable offered to hold off charging Zanidean, while RCMP documents claim city cops repeatedly asked them not to pursue Zanidean.
RCMP insist they would have charged Zanidean with the arson if he wasn't part of the formal witness protection program -- a fact that was apparently a source of "a lot of confusion" even to the RCMP, Ferguson said. The RCMP administer the program.
Though police believe as many as three people plotted to torch the Swift Current residence -- including Zanidean and Driskell -- RCMP never laid any charges. "I was a little upset that charges were never laid against Ray Zanidean," Ferguson said yesterday. "He appeared to be walking away."
Yesterday, lawyers at the inquiry received an internal RCMP document -- a 3/4-inch thick file containing newspaper clippings and e-mails -- created by Insp. Ross Burton in 2003, which he mentioned publicly for the first time near the end of his first day of testimony. An apology from a lawyer representing the RCMP accompanied the report.
The documents were not entered as evidence and weren't made available to the public.
A Mountie claiming a Winnipeg cop was "deceitful and dishonest" in dealings with the RCMP during the James Driskell murder case says he can't recall ever talking to a fellow RCMP member -- in spite of records to the contrary.
Insp. Ross Burton faced intense questioning from Winnipeg police lawyers in a second day on the stand at the ongoing inquiry into Driskell's conviction as conflicting stories surfaced about a supposed immunity deal for star witness Ray Zanidean. His testimony helped put Driskell behind bars for the murder of Perry Harder.
Quizzed by Winnipeg police union lawyer Richard Wolson, Burton said he had "no recollection or record" of ever speaking with RCMP Cpl. Tom Orr, who was in charge of a witness protection program in the early '90s.
'YOU MADE A MISTAKE'
What appears to be a handwritten log of telephone calls compiled by Orr includes an entry from May 30, 1991. According to the RCMP file, which was tabled as evidence at the inquiry, Burton called at 11 a.m. to "advise that there would be no proceedings against Zanidean either as a witness or accused if he is accepted into the program."
"I'm going to suggest you made a mistake ... (granting) de-facto immunity," Wolson said to Burton.
"I'm not going to respond to it," Burton replied. "It's a theory, not a question."
While arranging to testify against Driskell before his 1991 murder trial, Zanidean confessed to Winnipeg police about his role in a 1990 arson in Swift Current, Sask. Burton insists city cops pushed for a deal to secure Zanidean's testimony, while a report from Winnipeg Sgt. Tom Anderson says Burton offered not to charge Zanidean.
Meantime, comments attributed to RCMP Staff Sgt. Ron Ferguson indicate Burton had a "tendency to perhaps be overly suspicious," according to a report prepared by Driskell inquiry lawyers.
Comments attributed to Ferguson go on to note that suspicion "is a common trait in police officers," and indicate Burton seemed "very serious, intelligent and well-educated" while under his command as a constable in Swift Current.
The document is a summary of an interview with Ferguson conducted last May and not a formal transcript.
Driskell has maintained his innocence since his 1991 conviction, which was overturned in March 2005 when former federal justice minister Irwin Cotler said "a miscarriage of justice likely occurred," ordering a new trial.
The same day, Manitoba Justice stayed all charges. Although then-deputy attorney general Bruce MacFarlane said he wouldn't be re-tried, Driskell has never been exonerated for the crime.
WINNIPEG (CP) - The inquiry into the wrongful murder conviction of James Driskell is underway in Winnipeg.
The inquiry is focusing on the key witness in Driskell's trial, Ray Zanidean.
Zanidean was a suspect in a 1990 house fire in Swift Current, Sask.
An RCMP officer told an inquiry Monday that Winnipeg police asked him not to go after Zanidean for the arson because they wanted him to testify against Driskell.
Zanidean was never charged.
Driskell was convicted in 1991 of killing Perry Harder, and the federal government quashed the conviction last year.
AN RCMP officer who says Winnipeg police used "deceitful and dishonest" conduct in pursuing James Driskell was himself accused yesterday of "covering his tracks" in the same case.
Insp. Ross Burton, testifying for the second day at the judicial inquiry into Driskell's wrongful murder conviction, underwent a daylong cross-examination over his claim that Winnipeg police offered an arson suspect an unauthorized immunity deal in exchange for testimony against Driskell.
Richard Wolson, a lawyer for the Winnipeg police rank and file, suggested it was Burton, not Winnipeg police sergeant Tom Anderson, who approved immunity to Ray Zanidean for a Swift Current arson in exchange for his testimony against Driskell in the Perry Dean Harder murder case.
Burton had added new fuel to smouldering hostilities between the Mounties and the Winnipeg Police Service regarding how each agency dealt with the Driskell matter, by telling the inquiry he had a general "distrust" of the city police officers and of Anderson in particular.
He characterized Anderson as a "fast talker" who ignored RCMP protocol and offered immunity to Zanidean.
In written documents that have been accepted as evidence, Anderson said it was Burton who offered to drop the investigation of Zanidean.
The inquiry also heard that crucial RCMP memos regarding the case are missing.
One of Burton's fellow officers, RCMP Cpl. Tom Orr, also documented in a May 30, 1991 memo, which has been accepted into evidence, that it was Burton who OK'd the deal.
"Call received from (Burton) who advised that there would be no proceedings against Zanidean, either as a witness or accused if he is accepted into the (witness protection) program," Orr wrote.
Burton said he has no recollection of ever speaking to Orr and suggested his colleague was wrong.
"I was made aware that (Orr) was claiming he spoke with me," he testified. "I was of the opinion that Manitoba RCMP may want to look at this. I felt (Orr) could be portrayed (at the inquiry) in a poor light."
Wolson countered that perhaps it would be Burton who would be portrayed poorly and noted a week after Orr's note there is a memo written by Burton saying he doesn't agree with offering immunity to Zanidean.
"I suggest you did tell (Orr) what he says you did. That you made a mistake telling (Orr) you were granting de facto immunity and what you're now doing is covering your tracks," said Wolson.
"That's your theory. I'm not going to respond," Burton responded.
Driskell's lawyer Greg Brodsky, who could have used the information to discredit Zanidean when he testified against Driskell, was never told about the immunity discussions. No one was ever charged in connection to the Swift Current arson case.
Earlier in the day, Burton admitted that crucial RCMP memos are missing from the information being presented at the inquiry.
Burton said any notes he made regarding telephone conversations he had with Anderson in 1990 have been purged from the files.
Wolson asked: "You get a call from (Anderson) and he tells you they know that Zanidean is responsible for the arson. This is the first time you have someone admitting to the offence. You'd expect that you'd make a (file notation) wouldn't you?" asked Wolson.
Burton replied: "I generated (an internal) memo, which is missing."
In fact, during a six-week period during the arson investigation that included the first phone call Burton had with Anderson, there is no notation on the arson file whatsoever.
After becoming aware that Winnipeg police were reinvestigating the Harder murder in 1993, Burton testified he told senior RCMP officers that all the files related to the Zanidean arson case should be retained in case of an inquiry.
"I told them not to destroy the files and I took a plain piece of paper and wrote, 'do not destroy' and put it around each volume with elastics. That's all I could do," he said. Yet, while most of the file remains intact, the notes relating to two phone calls between Burton and Anderson are gone.
Burton said he remained suspicious of the Winnipeg police in 1993 when Insp. Bob Hall and then-inspector Jack Ewatski came to Saskatchewan as part of a reinvestigation of the Harder murder.
The two officers arrived outside of the agreed time, when Burton's boss would not be available. He did not want to sit down with them alone.
"There were several reasons. At that point my dealings with the Winnipeg police left me with distrust," he said. "They showed up unexpectedly in the evening, which had not been arranged. I found that quite odd."
Burton believed that Winnipeg police and Brodsky were working to sabotage his arson investigation.
In his statement to the commission counsel, Burton's own former boss, RCMP officer Ron Ferguson referred to Burton as having a "tendency to be overly suspicious."
Driskell spent 12 years behind bars for Harder's murder. He has always maintained his innocence.
Four years ago, Driskell's conviction was quashed by the federal Justice Department after DNA tests proved hairs used to convict him were not his.
The inquiry continues today. firstname.lastname@example.org
A former senior RCMP officer expressed concerns that James Driskell could be wrongfully convicted less than a month after he was found guilty in 1991 of the murder of Perry Dean Harder.
Ron Ferguson, a former staff sergeant at the RCMP's Swift Current detachment, told an inquiry yesterday that he was concerned that people would think the RCMP might be involved in a "cover-up".
Ferguson wrote a memo to his superiors advising them a key witness in the Driskell case, Ray Zanidean, had committed perjury during the trial when he testified about an arson being investigated by Swift Current RCMP.
Zanidean and his sister were suspects in the arson and Ferguson noted in his memo that it put police in a "tenuous" position.
He wrote that if charges were laid against the two in connection with the arson, it would come out that Zanidean had perjured himself during the Driskell trial.
"The ramifications of the evidence 'tainted' by a perjured witness will certainly affect the murder conviction against Driskell," wrote Ferguson.
"Winnipeg Police Services are certainly concerned with the possibility of a convicted murderer walking for the sake of an arson charge."
But Ferguson said failing to disclose the information to Manitoba Justice officials could have serious repercussions for the RCMP.
"Failure to respond judicially could be construed as an attempt at concealing evidence similar to the Donald Marshall case," wrote Ferguson.
Marshall was convicted of murder in 1971 and spent 11 years in prison before he was exonerated and set free.
An inquiry determined that witnesses had lied at his trial and that key evidence was withheld by investigators.
Driskell served 12 years in prison for the murder of Harder.
He has always proclaimed his innocence.
Four years ago, new DNA evidence proved hairs used to convict Driskell had not come from him.
Ferguson told the inquiry yesterday that it wasn't his place to contact Manitoba Justice about his concerns.
Instead, he noted in his memo that there will need to be "considerable liaison" between Saskatchewan and Manitoba Justice on the matter.
Saskatchewan Justice did raise concerns with the head of prosecutions in Manitoba about six months after Ferguson's memo.
Ferguson is the second witness to testify at the inquiry, which has featured much finger-pointing between the RCMP and Winnipeg police.
Much of it has centred on what kind of offers, and by whom, were made to Zanidean in return for his testimony against Driskell.
RCMP have accused the Winnipeg police of offering Zanidean an unauthorized immunity deal for his evidence.
Winnipeg police have countered that it was RCMP who offered to drop the investigation against Zanidean.
Ferguson testified yesterday that that was never the case.
"I was very anxious to have charges laid against any and all involved in this crime," said Ferguson. The inquiry continues.
An RCMP officer told an inquiry into the wrongful conviction of James Driskell that a key witness in the murder trial was never part of the witness protection program.
Sgt. Thomas Orr said there were discussions between him and Winnipeg police about admitting Ray Zanidean into the program but a formal application was never made.
Driskell spent 12 years in prison after being found guilty in 1991 of killing Perry Dean Harder.
There have been different versions by RCMP and Winnipeg police as to who promised what to Zanidean.
WINNIPEG - A prominent Ontario judge who presided over the trial of serial killer Paul Bernardo will oversee the inquiry into the wrongful conviction of James Driskell.
Patrick LeSage, a former chief justice of the Ontario Superior Court, is to review new evidence that led to Driskell's murder conviction being quashed earlier this year. "The case is now in the hands of a completely independent and exceptionally competent reviewer of fact," Manitoba Attorney General Gord Mackintosh said in a release Thursday.
"I am confident the inquiry will provide us with more information about what more could or should have been done in the case."
Driskell was convicted in 1991 of murdering his friend, Perry Dean Harder. He was released in November 2003 on bail, largely on the strength of new evidence that was withheld from his lawyers.
After 13 years of pleading his innocence, Driskell's conviction was quashed in March by federal Justice Minister Irwin Cotler, who determined Driskell was wrongly convicted of Harder's murder.
Manitoba then called for a judicial inquiry.
The inquiry will include public hearings and is to begin next year. Dates have not yet been set.