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Crawling through tunnel of justice since ‘91

Editorial: December 9, 2003

1991 was quite a year. Clusters of cases from that year are now coming to public light. The common thread is officers of the court operating for purposes outside the administration of justice.

Richard Klassen and his family; the Martensville daycare arrests; Neil Stonechild; James Driskell.

Each of the cases mentioned above has come to light only because of stubborn diligence by individuals who would not let sleeping dogs lie. As the Klassen civil trial, the Neil Stonechild inquiry, and the investigation of what went wrong with James Driskell unfold, we find evidence that some cops and prosecutors went over the line to gain convictions based on false evidence and to thumb their noses at anyone who raised a complaint about how they did their jobs. The list of manufactured evidence and lost files from that year, and those before and after, speaks to corruption.

The rise to high positions of cops Brian Dueck and Jack Ewatski in Saskatoon and Winnipeg shouts corruption. Likewise what we have learned of the activities of Saskatchewan prosecutors Matt Miazga, Sonja Hansen, Leslie Sullivan and Bruce Bauer and Manitoba prosecutors Greg Lawlor and George Dangerfield say this corruption involved conspiracies. As each part of the injustice puzzle has been exposed, those responsible have said "this was an isolated case". We know that these cases are not isolated and that there are enough of them to now say they are fairly common. It is not too likely that the cops and prosecutors who have had their deeds exposed are isolated cases, either. They are the ones who got caught.

How many prosecutions and convictions were these particular individuals involved with? Their disregard for and clever side-stepping of due process suggests that other cases have been more successfully hidden. An outside agency with no connection to either police or the Crown should go through all the files from that period to determine just how many injustices are buried. And they should do it quickly, before more files disappear. One morning, early on in the Klassen/Kvello civil trial, I arrived at the parking lot (which is beside the prosecutor's office and behind the courthouse) and saw a truck, very much like those that come to your house to vacuum out your furnace ducts. This was a mobile paper shredder and it was hooked up to the adjacent building. Paper was being shredded. I hope that this was paper made obsolete because the files had been transferred to electronic form.

1991 was the year the Stinchcombe decision was brought down. This was the Supreme Court decision which threw out the conviction against William Stinchcombe. The Crown had failed to disclose the content of repeated interviews with a witness. The decision read, in part:

. . . Counsel for the accused must bring to the trial judge's attention at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. This will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial.

     Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced. If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied. . . .

Violations of the Stinchcombe disclosure directions have surfaced in 2003 in the Klassen/Kvello civil trial in Saskatoon and the James Driskell application for a judicial review in Winnipeg. In both these cases, it would appear that police and the Crown colluded to to end runs on Stinchcombe in 1991 and 1992, as the significance of the decision penetrated Crown and polie offices across the country. We have every reason to believe that there are many more cases where authorities responded to Stinchcombe not by willingly disclosing evidence but by hiding it deeper.

The Stinchcombe decision, while changing the legal practice regarding disclosure, did not address the Crown's repeated interviewing of a witness, the effect of which was to finally get her to say what the Crown wanted her to say. Badgering, I believe it is called. There is a statement which police are now required to speak to an accused which involves not only the right to legal counsel without delay, but also that he or she should expect no favour or construe any promise from the officer if he or she should speak. Most cops have this memorized, as American cops have with the Miranda warning, and speak it so quickly it is incomprehensible gibberish. Dueck was meticulous about including this monologue at the beginning of each of his taped interviews. Then he went right ahead and violated it. An isolated case? Not likely.

This summer, while we were out on the streets with our posters and signs, a police videographer made a point of coming out to "document" us. This was clearly intended to intimidate. The problem is that if they make a document, such as a photograph or videotape in the course of charging and prosecuting a person, they are required to disclose the tape. In 1994, when I was charged with defaming Dueck, I was also charged with assaulting officer Dave Chartier. His written statement suggested a savage attack. The videotape of the arrest told a different story. The charge was dropped the night before trial. In that case, three years after Stinchcombe, we had to be extremely diligent to force the Crown to produce for us a copy of the videotape. We knew it was there because we saw them take it, in broad daylight on a busy street. Police are not always forthcoming with tapes which are made behind closed doors in police stations. Police and prosecutors are now resisting providing taped evidence to accused, insisting they go to the Crown office to view the tapes if they are unrepresented. Since electronic media is now as commonplace as paper was ten years ago, the only reason for such a retentive policy is the desire for secrecy, an unwillingness to be scrutinized.

After November, 1991, police in many jurisdictions responded to the requirement to disclose written and taped evidence by not writing things down. Superintendent Dueck stated at the Klassen/Kvello hearing that he didn't use a notebook. He just made a note of relevant information on the file itself. (The file could not be found.) At the Neil Stonechild inquiry into a freezing death which occured in 1991, we are learning there is not much of a paper trail. At the inquests for Rodney Naistus and Lawrence Wegner, whose freezing deaths occurred almost ten years later, we found the same thing. If Darrell Night had not survived, and then left his health card in a taxi, we would not ever have been able to determine the truth of his allegations.

Police and prosecutors, when suspicions have been raised regarding improper conduct, have used various forms of internal investigations to clear themselves in the public eye. The Saskatchewan Police Complaints department, as we have iterated on these pages many times, has shown itself to be transparently callous, dishonest and self-serving. (Their treatment of John Melenchuk's complaint that no thorough investigation was made into his 1998 stabbing illustrates how thoroughly corrupt this department is). The Department of Public prosecutions has an equally effective way of not dealing with prosecutors who are embarrassing it -- it just moves them around. The Law Society is also sensitive to prosecutors who come under fire. We notice Matthew Miazga is no longer a bencher, for instance.

Publicity in Manitoba about prosecutorial misconduct in the Driskell case has focussed on George Dangerfield who is no longer working for the Crown. Greg Lawlor still is working for them, as far as we know. He has managed to keep his name out of the public eye since his name first came up.

Judges have recently become quite sensitive to disclosure violations. There are even a few who are throwing out cases based on improper interrogations, the use of jailhouse informants and other questionable methods used by police and crown to build their cases.

Tunnel vision has become the buzz phrase for the kind of police and prosecutorial work which has led to people being wrongly charged and prosecuted. What is generally meant by "tunnel vision" is pursuing and twisting inculpatory evidence while ignoring and suppressing exculptatory evidence against the targetted accused. The Kaufman inquiry into Guy Paul Morin, the Cory inquiry into Thomas Sophonow, the Alberta case of Jason Dix and the preliminary findings in the Klassen/Kvello lawsuit have all cited "tunnel vision" as causes for injustice.

Investigating commissions, inquiries, have to be careful about tunnel vision themselves. The tunnel has become larger, to the credit of the judges who have examined these cases. It includes improper disclosure and the use of jailhouse or should-be-in-the-jailhouse informants. Generally DNA is now viewed as the ultimate test of innocence or guilt.

The tunnel of justice must be expanded to include coerced and forged confessions which have cluttered the evidence tables in many, many cases. The most egregious case we are aware of is that obtained by Winnipeg cops Loren Schinkel and Jim Thiessen in the Monique Turenne case. But we are also aware of many other cases where the police have used psychological techniques to trick innocent people into admitting to acts they did not do. Any confession which is entered into evidence at trial must be thoroughly scrutinized for its veracity. The problem here is that many people have entered into plea bargains and convicted on the basis of corruptly obtained confessions.

In Windsor last week, a lawyer was found guilty of perjury, after having forged her client's signature on documents in a divorce case. Wendy Maroon will be sentenced on January 9. The judge was not pleased and we hope Maroon will be properly punished. Lawyers working for the Crown should be watching their steps. There cannot be one set of standards for family lawyers, civil lawyers and defence lawyers and a different set for the Crown. If anything, the bar should be higher.

The war on drugs was the occasion for throwing aside the rights of individuals all over the country. Disclosure violations, often challenged in court, were found to be routine. It didn't matter, though. People charged with violations of the drug laws were not offered any remedy even when such violations were found. Police and prosecutors then used the precedents set in drug cases to violate citizens' rights in other kinds of cases. This was the ultimate end-run around the Stinchcombe decision.

There seems still to be only a handful of lawyers and journalists who are prepared to do the hard work of investigating these cases and telling the public about them. Lawyers like James Lockyer put in hours, days, months and years to get wrongful convictions back into court and painfully push them forward to the next stage. Journalists who dare to investigate and work on stories often have their pieces turned down by editors and producers because they do not fit the flavour of the day. They claim the public taste is for a sweeter version of reality, even if that picture is false. Those pushing forward stories illustrating the injustices are thought to be bitter.

In Saskatchewan and Ontario, the Crowns have been aggressive about shutting up the people who try to put forward the stories such as those we feature on this website. Criminal defamation charges are quite common now as speech which was acceptable fifteen years ago is now criminalized. The much-hyped pornography on the Internet problem has resulted in many charges where the accused didn't have anything to do with porn -- much less child porn. There is great secrecy about these cases and they are under-reported on in the media in deference to the wishes of advertisers. Often, material is sealed. The Don Smith case in Fort Frances concerned only adults. Yet the information is sealed and the details of the dirty tricks played by OPP cop Scott Gobeils and prosecuter Christine Bartlett-Hughes (oh, she of Little Sisters Bookstore prosecution fame) are not available for scrutiny. Defamation cases almost always involve publication bans; they are difficult to track. In Saskatchewan this summer, both Richard Klassen and John Melenchuk were arrested while picketing and using bullhorns to publicize cases of police and governmental abuse of process. Police and prosecutors conspired in both these arrests; Klassens was dropped in embarrassment in October but the crown is still proceeding against Melenchuk who has a January court date.

I have chosen photos from last summer's protest actions to illustrate this sermonette. The tunnel of justice can be properly navigated only if it is filled with light. If those who know of these matters are not allowed to tell them, we don't have a hope.

One development which promises to widen and illuminate the tunnel of justice is a growing trend of the Supreme court to respect individual charter rights. Life, liberty, security of the person, a fair trial with full answer and defence, freedom of speech and expression. The violations of these rights of Canadian citizens over the past eleven years are many. Gradually, some wronged persons are receiving compensation. The next step is meaningful punishments for the violators.

-- Sheila Steele December 9, 2003