Heroin, guns and a bullet proof vest –but not “morally blameworthy”

Posted on by Pete Cross

There are many cases that come before the courts, almost all receiving little attention or public mention, but once in awhile there are some that make you take note. From Provincial courts to Supreme Courts to Appeals courts one can almost always find a case or two that will make you scratch your head, or possibly get a little agitated.

The case that recently had me perk up and get a higher blood pressure reading is the case of Robert Mero.

He is a 34 year old male, whose father was Metis and his mother was non-indigenous; making him one fourth of Indigenous heritage. Why are we mentioning this, because it was this 25% of his heritage which was enough to keep Mr. Mero from going to jail.

In the eyes of the learned Justice Len Marchand of the BC Court of Appeal, his “moral blameworthiness” necessitated that the 40 month sentence to which he was originally sentenced (by the Supreme Court of Vancouver Judge Joel Groves )–be reduced, more accurately eliminated. Mr. Mero should not go to jail in the view of the Appeals Court as he should not be held accountable due to his Metis heritage. The sentencing was wrong according to Justice Marchand because “neither the Crown or Judge addressed his Indigenous background”.

The unwieldy terminology of “moral blameworthiness”, clearly something only lawyers could come up with, stems from the Supreme Court of Canada and what is now referenced as the Gladue decision.

Regina vs Gladue was a decision by the Supreme Court specifically dealt with sentencing principles that had been layed out in Section 718.2 (e) of the Criminal Code of Canada and had been enacted by Parliament in 1995. This section directed that the courts need to consider “all available sanctions, other than imprisonment” for all offenders. However, it needed to pay “particular attention to the circumstances of Aboriginal offenders”. (It should also be noted that these provisions were put into the Criminal Code under Prime Minister Jean Chretien and the Liberals who ironically have been recently criticized for not understanding the problems in the residential schools.)

Gladue was the first case where the Supreme Court considered these provisions and set out to try and define what factors should be taken into consideration under this newly defined law. In the Gladue case, a young Indigenous woman had appealed her manslaughter sentence of three years for stabbing her boyfriend to death (life was cheap even back then). The pitiful sentence of three years was upheld despite the appeal, but the Supreme court ruled that they should have at least considered her Indigenous background.

The changes to the Code were orchestrated and passed because of the “over representation” of the Indigenous in the Canadian judicial system. The term “over representation” is a bit of a misnomer, they were not going to jail in disproportionate numbers because they were being picked to “represent”, they were going to jail due to the massive criminal problems existing in the Indigenous populations.

This was an attempt by the Liberals of that time to solve the abnormally high criminal activity amongst the Indigenous– from the top down. Too many in jail, simple solution, just don’t send them to jail.

No need to address the actual criminal activity at its origin, which is a much more complicated set of social ills. The overall affect of course was the diminishment of personal responsibility, and broadly, it also had the affect of creating different laws or at least very different treatment before those laws according to race.

In the years since this has morphed into Judges now automatically asking for a pre-sentence report which formalize these considerations for Indigenous offenders. This sociological based report is termed a Gladue report. This report, or lack of a report was a central factor which played out in the case of Mr. Mero.

Mr. Mero’s crime in this case was not a minor crime and he would be unlikely to have received any nominations for citizen of the year in Prince George, where this matter began. A search warrant was conducted of Mr Mero’s residence by the police in Prince George in 2016. It led to the seizure of a .38 calibre pistol, ammunition, 23 grams of heroin, and a bullet proof vest. Clearly, Mr. Mero was exhibiting all the characteristics of a drug dealer.

Mr. Mero had previously served two other jail times, in 2005 and 2006. It was what the Appeals Court called a “dated criminal record”.

Mr. Mero and his defence council (he went through two defence counsels) went through all the motions that are tried in this day and age. A motion of too long to get to trial (Jordan decision) was first tried. The Judge ruled that the delays were due to defence counsel scheduling and the fact that his 1st defence lawyer had gotten suddenly sick. The court chastised the defence counsel: “Mr. Mero’s trial counsel has shown, effectively, since the beginning of the trial, an ability to delay matters on behalf of his client”.

Then the defence argued that Mr Mero who suffers from a lung disease should not go to jail because of the high rate of Covid in the jails which could prove to be detrimental to his health. Worth a try, considering the panic which has pervaded Canadian society over Covid, but this too didn’t work.

The defence counsel then argued that no Gladue report had been prepared. It turns out that they had six months to produce a pre-sentence report but failed to get one before the courts in time. So the sentencing went ahead without a Gladue report.

Justice Marchand of the BC Appeals Court felt that this was a massive oversight.

As a result he imposed a “conditional sentence” of 2 years less a day– the 1st year to be served under house arrest, to be followed by a curfew. He was placed under probation for the drug offences. This decision by Marchand was concurred with and signed off by two other Justices; Mary Saunders and Bruce Butler.

So what would have been in a Gladue report that could alter an outcome to such a degree? Usually, there is general information about the Metis “nation”, the intergenerational aspects of “colonialism” and “displacement”, racism and systemic discrimination, forced attendance at Residential schools and the “over representation” of the Indigenous in the jails of this country.

This is not to deny that Mr. Mero clearly had a troubled life. Most criminals can point to historic family issues. In his defence argument he pointed to the fact that he was “unable to complete school”, his “childhood was traumatic”, his “life was marred with addictions” and that he had “come into conflict with the law”. Mr. Mero’s father was not believed to have been at fault but he was often “away at work” and this left him with a mother who had significant mental health issues. He had runaway from home at 12 years old and got caught up in the street level drug trade, an all too common story.

However, it would be difficult for Mero to argue that these issues were directly related to his Indigenous upbringing. One need not worry because the courts have ruled that “it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue”, as it may be “impossible to establish” a link. In other words you don’t have to prove a causal relationship.

The other aspect of this case which gave me pause was that this was a verdict by Justice Marchand. There are 26 Justices in the Appeals court, but in this instance Mr. Marchand was assigned the case.

Mr. Marchand is the son of Len Marchand Sr, the first Indigenous cabinet minister who once served under Pierre Trudeau. Len Marchand Jr. is a member of the Okanagan Indian Band having grown up in Kamloops, B.C. He articled and practised law in Kamloops with Fulton and Company. While there he spent a substantial part of his career working on “reconciliation for Indigenous people”, was pursuing historic civil claims of child abuse and represented residential school “survivors” and also served on the selection committee for the Truth and Reconciliation Committee.

There is no evidence here that Mr. Marchand had a clear bias in favour of Indigenous claims of “systemic racism”. Also, this is not to claim that all Indigenous cases need to be assigned based on their cultural background. But in this instance the appeal revolved around a Gladue application, central to which is the belief that there should be judicial favourable considerations granted to the Indigenous that are not available to others. That the application of the laws should be different because of their culture and background.

It is difficult to determine whether justice was served in Mr. Mero’s case, but I suspect he was merely a player of the system.Whether justice was served in this case we can leave to others, but does justice also need to be seen as having been done?

Should this case have been handled by someone who had spent the majority of his working life on Indigenous causes or is there a definite taint to this case.

Gladue is just one of the many pronouncements coming from the benches of the Supreme Court of Canada, the BC Supreme Court and in this case the Appeals Courts. They are germinated from the left leaning political dominance in British Columbia. It leads to favourable judicial appointments. Maybe well intentioned, but clearly with very pronounced political leanings. A left propensity to believe that government must protect all and everyone from the evils that society put upon us. Personal responsibility replaced by societal responsibility.

Maybe it is time for a return to the centre, where the vast majority of Canadians actually live. Not necessarily to the right or the left, but where common sense is the prevailing ethos.

The laws of this country are being diminished, watered down, leaving a large class of people now feeling disenfranchised. Many would not be o.k with rules and laws being applied differently depending on your cultural background. It is a difficult issue, but the current judicial climate seems destined to lead to trouble.

Photo Courtesy of Paul Sableman via Flickr Commons – Some Rights Reserved

A personal note

I apologize for the delay in the publication of this blog.

I have recently moved– swimming against the prevailing current and have moved back to the heart of the City of Vancouver leaving the quiet countryside. I have been surrounded by cardboard and the joys of re-connecting with life in the supposedly faster lane.

Thanks for your patience and your continuing support.

Pete

Burn

Posted on by Pete Cross

Everyone, like the proverbial moth, is pulled to the flames. The licking fire is often enthralling and mysterious, but we can only enjoy its satisfying glow when it is under some form of control. As the western part of this country burns without restraint, the sometimes comforting flames are now satanic; on the move and destroying all things past and present in its path. The sound comes first, then the whirling winds, and finally the advancing ox blood coloured inferno comes into view. 

Even those some distance away in the remote towns and villages are part of this theatre of fire, wholly engulfed by smoke, black strings of soot dangling in the air and falling lazily at ones feet. Thousands of kilometres away the sunsets are tainted, the smoke having migrated across the country making the sun take on an orangish hue, the colour of our often imagined doomsday.

This is mother nature in one of its dazzling incarnations. But, this is not new. It happens regularly in this part of the world, some say with more regularity, because of climate change. The last time it moved with such all-encompassing destruction was in 2017. 

Some of those fires is the coming together of dry, parched ground being struck many times over by lightning; thunder announcing the attack, mother nature venting.

Other fires are not manifestations of nature or climate change, they are our own doing.  

Negligent humans often at the root of the resulting financial and personal devastation. Flung cigarettes from car windows, sparks from work tools sparking in dry tinder, or the insufficiently doused campfire– all are “human” causes. 

The darkest of these human possibilities and the subject of this blog is that human being who feels some internal need to start his or her own fire. The criminal arsonist who lives amongst us.

Between 2016 and 2020 according to the Congressional research service in the United States 88% of wildfires are “human” caused.

The Province of British Columbia estimates that only 40% of wildfires in this Province are “human-caused”. This is a statistical difference for which there is no explanation, but may lie in the nature of the survey. Recently there were about 300 firs burning in British Columbia, so about 120 of those fires, going by the statistics of the Provincial government are in all probability “human” caused.  

Negligent behaviour aside, a portion of that 120 will be the result of the deliberate starting of fires, an arsonist at work. We can only guess at the actual number of arsons due to the nature and style of the government reporting and often because those that investigate these fires can not confirm the root cause. 

On their web site the British Columbia government laments that investigations of those fires “often take time to complete and can be very complex”; that the investigations themselves may be carried out by “one or more agencies, including the B.C. Wildfire Service, the Compliance and Enforcement Branch, the RCMP or other law enforcement agencies, and some investigations may be cross-jurisdictional”. Without a single investigatory unit, maybe therein lies part of the problem. 

Arson should not be considered a small problem. By way of comparison, in 2019 there were 678 homicides in Canada while there were 8,190 arsons. In 2014 the national rate of arsons was 23.87 per 100,000 population. Nunavut had the lowest overall total of arsons, however, the highest rate of arson in the country, three times the national rate —at 87.47 per 100,000.  

From 2010-2014 there were 38,844 fire incidents in Canada, 19,062 structural fires while 5,071 were “outdoor fires”.

So it behooves us to ask where are the resulting arson related criminal charges? What is the status of all or any investigations? Who is conducting them? Who are these arsonists? 

Psychologist Joel Dvoskia Phd. states that “the truth is, very little is known about arsonists because so few arsons are solved”. He goes on to say that when they are solved “it is because the arsonist can’t keep his mouth shut”.  When asked to analyze the California wildfires where 600,000 hectares burned and 2,000 homes were lost, and where some of the root causes pertained to arson, the Dr. says that often the “most common reason is profit” but in that case “anger is the more likely explanation”.

In 1987 the FBI studied and tried to create a profile of the typical arsonist. What they discovered in reviewing hundreds of cases was that in terms of “behavioural IQ” the typical arsonist had a mental of IQ of between 70 and 90. Seventy of course is the top level for people who are considered mentally “challenged” or deficient. 90% of all arsonists are caucasian males (as if us white males needed any more listed deficiencies—we also have a claim on serial killers). In 2012 the FBI found that 73.8% of arsonists were male. 

Half of all the arsonists profiled were under the age of 18, and the other half were most likely to be in their 20’s. These future criminals were unsurprisingly often neglected as children and had a “history of abuse and humiliation”. 

In terms of the Criminal Code and the law in this country, arson is covered in Section 433 which defines arson— and it also gets honourable mention in the murder section 230, where arson is named as a possible lead in to the charge of murder. 

When one examines this definition of arson, one discovers one of the other possible reasons that the charges for it are minimal. It states that for a charge of arson there must be a “disregard for human life” and a charge of arson is when “any person intentionally or recklessly causes damage by fire”. The operable word in the latter explanation and the one that any defence lawyer will seize upon is “recklessly”. What is “reckless” ? Recently there was a report of a car travelling down the highway pulling a broken muffler and sparking flames enroute. Is this reckless?  If one could assume that the typical arsonist is below average intelligence, proving intent may in of itself be difficult. Undefined words such as these allows lawyers to go down the rabbit hole into that subterranean world where they work and thrive. 

It is possible to charge for an arson which has been created by a “marked departure from the standard of care”. This carries a maximum sentence of five years. Again, try and define “marked”. 

When you do see criminal charges of arson, as few and far between as they are, it is often the mental health act and the nature of the act forms part of a deeper psychological problem which is very much in evidence. Here are some examples. 

The Powerview RCMP responded to a fire on Hwy 11 on Sagkeeng First Nation where a 44 year old male, Quinton Courchene tried to burn a house down with two individuals inside. He was waiting at the scene of the fire when the police arrived. 

In July of this year in West Kelowna a 36 year old male was arrested after being located in the area for setting a series of fires. The local public became enraged when a local Judge released the male back into the Glenrosa neighbourhood shortly after his arrest.  

In Port Alberni the police arrested a female who was setting fires in the city parks. 

A woman in Bonnyville Alberta was charged with 32 counts of arson after a spree of setting fires in the area. In this case there is an abundance of mental health issues. 

In June of this year the Wetaskwin RCMP arrested three males: Linden Buffalo, Jake Green and Donovan Lightning, all were charged with murder and arson after the remains of Clifford Stauffer was found inside a structure that was burned to the ground. 

In checking the literature for the last ten years in terms of court cases and case law emanating from arson charges– none of those cited were found for the lighting and starting of wildfires. 

In consideration of all this clear arson activity, should one assume that the RCMP has a dedicated arson investigation unit? Unfortunately, like many specialized investigative demands,whether it be cyber crime or fraud, once again the RCMP seems to be playing the under-funded second fiddle, often reliant on other agencies to lead the way. 

If you needed further evidence of the haphazard approach the Mounties take to arson investigation, consider the fact that this writer was once considered one of the “arson” investigators for the Surrey RCMP. This was not a dedicated unit, it was just a few of Serious Crime officers who were to work arson cases off the side of their desk. The qualifications needed were two Arson level I and II courses; one of two weeks, the other of three weeks. No experience necessary. If you could type the word “accelerant” you likely passed the test. 

Arson investigation, even more so than homicide or other serious crimes is often  heavily reliant on “good old fashion police work”. It inevitably needs a witness. Forensic evidence is needed to prove that the fire was “started”; rags in gas, matches found at scene or some other difficult to find substance, but once that was achieved, little or no definitive evidence of who may have started the fire would be found through the use of forensic science. Fire is a magnificent eliminator of physical evidence, hence the reason that gangsters burn the car or getaway vehicle often with the weapons inside. 

One would hope and think that repetitive years of extensive wildfires would elicit further investigative resources for a serious crime such as arson. That does not seem to be the case. Granted the under resourcing of many departments is at an all time high. (You may be interested to know that currently the Hwy patrol units in the Lower Mainland do not have enough resources to attend accidents now, and are asking the local detachments to attend those on the freeways—normally their mandate.) This writer has learned from more than one source that the RCMP was quietly dreading a season of wildfires due to this drastic understaffing. Just covering the evacuation areas, let alone fire investigations, has become as one officer stated a “shit show”. 

A new wildfire started as I write this on the Osoyoos Reserve in British Columbia and is now threatening the surrounding area and leading to several evacuations. No one is reporting the cause of the fire.

Two lives were lost in Lytton, British Columbian but the authorities are saying very little about the cause other than it was “likely caused by human activity”.

If that was not enough, Catholic churches are burning around the country– in Morinville, Calgary and  Edmonton Alberta; Penticton, British Columbian and Nova Scotia. The motive seems clear. It is just as clear that there are likely numerous individuals who know of the suspects but are fearful of being outed by their own community.

This lack of investigational willpower and resources is clearly Nero fiddling while Rome burns. In the meantime, helicopters will keep buzzing the lakes, dragging their long lined buckets, seemingly making very little progress. So, just maybe it’s time to start asking a few questions, rather than year after year falling to our knees and praying for rain. 

Photo Courtesy of Flickr Commons by U.S. Fish and Wildlife Service – Some Rights Reserved

Rolling the Dice in a Homicide

Posted on by Pete Cross

It was May 2011 when Samandeep Singh Gill, likely with a gangster strut, got involved in a “road rage”altercation and a “fender bender” quickly turned into a cold blooded killing. Gill (allegedly of course) shot the other driver Manbir Singh Kajla several times and Kajla died at the scene. For good measure Gill also shot at Kajla’s newly wed wife, Pavan, before disappearing.

Seven long years later, after IHIT had turned the file over to the Unsolved Homicide Unit in 2016, Gill was finally charged in 2018 with 2nd degree murder and attempted murder. Since the arrest and up to the time of the trial in 2021, Gill was simmering away in jail. The Court did not feel this gun toting Mr. Gill was safe to be allowed out to await his trial.  

However, in March 2021 it all went sideways for the police and the Crown when the presiding Justice of the Supreme Court ruled that the Integrated Homicide Team had engaged in a “systemic, flagrant disregard” for the law, and were “at best wilfully blind” to  this “egregious” behaviour,“. What had been exposed he stated was a long standing policy of “deliberate non-compliance” with the law. With these words Justice David Masuhara of the  Supreme Court then turned to the accused killer and told him he could go home; a free man. 

A good day for Mr. Gill and a horrendous day for the family of Kajla. A catch and release for IHIT and the Unsolved Homicide Team after many years of investigation. Furthermore, there was also the grim prospect that this ruling would ripple through to other cases —especially those which had been brought forward between 2007 and 2014.

The allegations of the Justice, applauded by defence counsel, were indeed troubling. However, as one read the blaring headlines, there was a tenor to the pronouncement which didn’t resonate with those of us that had worked in this field of death investigation. Really, a policy to break the law? Fracturing the law was possible, but how could one be so stupid as to make policy around it.The allegation seemed illogical. 

The answer on further review turns out to be much more understandable; albeit still wrong, but worthy of an explanation. 

The knee jerk furor of the media aside and ignoring the autonomic NDP political damage control that quickly ensued, what kick-started the panic was a low profile, somewhat innocuous section of the Criminal Code –Section 490. Twenty pages of fine print in Martin’s Criminal Code which deals with the subject matter of   “Detention of Things Seized”.  

For greater clarity, the portion in specific contention is section 490(2) which says that “Nothing shall be detained under the authority of paragraph 1 (b) for a period of more than three months after the day of seizure, or any longer period that ends when an application made… unless a justice, on the making of a summary application to him after three clear days…notice thereof to the person from whom the thing is seized, is satisfied…that its further detention is  warranted”.  

In laymen’s terms, when the police seize anything as evidence, usually under warrant, the police can hang on to the items for three months but if they wish to hold it longer they need to apply to the courts to do so. Sounds simple, but it is not. This is in fact a highly burdensome section. Arguably a largely administrative procedure which involves contacting all those from whom the items were seized,  notifying them individually of the future court proceedings where the police would be arguing to extend the exhibit(s) detention.  

But, imagine a case where there are 1200 seized exhibits (the Surrey 6 file as an example) , or a drug conspiracy case with hundreds of exhibits. Imagine an investigation taking a few years, where every 3 month period requires a court application and then you begin to see the problem. To continually comply with this section over forty cases (IHIT average) in one year alone, an army of additional officers would be needed on a full time basis.  Without doubt it is the law but it is equally largely unworkable. Remember that the law never caters or entertains an argument wherein the police or the Crown say something requires further manpower or resources.  It is a police resourcing problem they would rationalize, not a law problem. 

IHIT in this case, and apparently in several others, during the years 2007 to 2014  never complied with this Section. In fact, the Justice goes further and says that IHIT  had an actual  “policy” to contravene the Criminal Code. A written policy to intentionally break the law despite their having been legally counselled on many occasions not to do so.  

The explanation of this being “policy” is also a little more textured. 

To fully understand one must travel back in time to 2007; it was what was going on in 2007 that created the problem for the 2011 case, which was discovered in the trial of 2021.   

2007 was part of the golden era for homicide investigation. It was an atmosphere of smoke filled rooms, drinking, dark humour, and inappropriate jokes on a regular basis. It was the Mad Men years. The pace was often frenetic, demanding hours at the cost of family or relationships. But, it was good, a lifestyle choice rather than a career choice. For some reason, it also worked, with a  solvency rate that brushed against 78% in those early years, while only consisting of four teams of eight investigators.

It was also a time where the officers of early IHIT were experienced and were thus comfortable working on the high wire of the law. There was no principled argument against bending or stretching the law to meet some investigative need. Bending and not breaking was in fact the learned art. 

The Criminal Code was the only policy and guide. Crown prosecutors were trusted mentors. There were no homicide pamphlets, nor did anyone turn to an “operational manual” for any kind of guidance. Just a group of head scratching cops with a tendency to not believe anyone, trust no one, and often used a strong epithet to counter a learned argument, a disgruntled grunt serving as  a yes or no. 

Court was the stage, it was part of the game. Best player wins.  It was a small, compact and familiar group— there were the cops who investigated the murders, the Crown lawyers who prosecuted and the defence counsel who represented the “pieces of shit”.  A grudging but mutual respect built up over years.  

In 2007,  Sgt Al Ross headed one of the four IHIT investigational teams.  During a routine conversation with a  Justice of the Peace, it was pointed out to him that many officers were not complying with the provisions of Section 490, and they (the police)  needed to address the matter. Sgt Ross took it upon himself to try and find a solution to this problem; all while remaining fully aware of the logistical nightmare that this could represent. 

So he sought out and went to speak with Sr. Crown Counsel John Labossiere. Labossiere gave the correct legal answer, “there is no latitude for covert police operations” that the Criminal Code was clear in that regard. There was also discussion and recognition of the issue the police were facing —in trying to comply with this arduous section. 

Sgt Ross then goes to another Sr Crown, Terry Schultes (now a Supreme court Judge) who tells Sgt Ross that they can not ignore the law in this case. Again, there is no easy out., but informally again there was recognition that they “had to make it work”, just no solution as to how that could be done.

Sgt Ross, not known as one that gave in easily, then went to the RCMP legal counsel at the time, Les Rose, seeking yet another legal opinion. Mr. Rose one of the go-to individuals inside the RCMP had a reputation for being somewhat more pliable when it came to the policing efforts. In this case, Mr. Rose told Sgt Ross that he needed to comply, but he also opined that there was a need for “balanced risk management” and that he knew of no case where there had been an “exclusion of real evidence” based on a breach of Section 490.  

Sgt Ross met with the Officer in charge of IHIT, Wayne Rideout, and also Inspector Bill Fordy the latter being one who also leaned to the explanation of the need for a “balanced risk management”.  This was followed by “a memo” coming from the Officer in Charge telling officers not to seek extensions, if they felt that by requesting the extensions they would “attract attention to the non-compliance”.  They seemed to follow that old standard RCMP policy solution –ignore the problem, and in the meantime don’t tell anyone. 

In January 2008, Sgt Ross writes to Supt Wayne Rideout “warning of the circumstances” brought about by non-compliance however he does throw in that  “I anticipate the possibility of real evidence being excluded in a homicide is low”. He recommended that IHIT  try and obtain some further resources and manpower, absolutely needed he argued, if they were going to get some sort of ability to comply with the section.  

Fast forward now to 2011. 

S/Sgt Gorgichuk, who was then a Constable with the 2nd generation of IHIT investigators, was the file co-ordinator for the Gill attempted murder case. She appeared at the trial in 2021. Her testimony and explanation of Section 490 did not go well. 

In this case, search warrants were executed on the Gill residence. They seized nine cellphones because “they didn’t know which one was the accused”. They also seized a home security videotape (which was not included on the warrant), after getting access to the residence. Amongst the phones seized was a 60 second audio clip, captured apparently because of a “pocket dial” during the time of the shooting; which implicated Mr. Gill in the killing and therefore a central piece of evidence for the Crown. 

Unfortunately the Crown and their police witnesses ran into a very able and formidable criminal defence attorney Matt Nathanson. One could question Nathanson’s choice of high paying clients, but one could not question his experience and intelligence.  

Nathanson challenged the seizure of the video on the grounds that the home security camera was not on the warrant.  He also challenged the seizure of the phones on two primary grounds. The “over reach” of the warrant and the criminal “policy” of IHIT of not complying with Section 490 of the Criminal Code as testified to by S/Sgt Gorgichuk. Nathanson no doubt with his most theatrical voice pronounced that he had “never seen anything like this before”, this wanton disregard for the law.

Justice Masuhara agreed. The over reach or what the Justice calls “over-seizure”on the cellphone seizure and the fact that it was an unlawful search of the security camera system was what warranted exclusion of the evidence flowing from it. 

What pushed the Justice over the line seemingly was the “policy” which S/Sgt Gorgichuk “acknowledged her awareness” of —that  “direction” in 2007  not to comply with Section 490.  

Far be it for this outsider to question S/Sgt Gorgichuk, but it is difficult to believe that she did not comply with Section 490 in the Gill case— because of a remembrance of this “direction” that was issued in 2007. Gorgichuk was a Constable in 2011.

 The Justice wasn’t enamoured with her when describing her evidence: “I determined that S/Sgt Gorgichuk was not a credible witness and that she engaged in advocacy, though I did not find she intentionally misled the court…  As I have stated, I did not find S/Sgt Gorgichuk to be a credible or reliable witness …she refused to acknowledge errors in her testimony even when confronted with clear evidence..her testimony was nonetheless misleading, combative, and at times contradictory” 

S/Sgt Dwayne MacDonald (now the Officer in Charge of Federal Investigation Services and Organized Crime) was the Team Commander for the Gill case. The Justice speaks to his testimony and of his apparent cancelling of the “directive” in 2014 (worthy of noting that the Justices’ language went from calling it policy to a directive)when he says:  

“On XXXX 2011, S/Sgt Dwayne McDonald was a Team Commander at IHIT, responsible for the investigation of the murder of XXXX Kajla. Since 2007, the senior management at IHIT had provided direction with respect to applications for the extension of 5.2 Detention Orders. Specifically, that no extension of the 5.2 Extension Order would be sought upon the expiry after 3 months (I believe that the two XXXX references by A/Comm Dwayne McDonald in this email were a direct result of him not remembering the exact information);” In other words, he was guessing a bit. 

From a police perspective, is some of this understandable and even arguable? Maybe. 

This writer believes that non-compliance with this Section is rampant in every part of this country, in every police agency in the land. It is largely an unworkable Section of the Criminal Code that needs re-vamping, especially in times of limited resources and “defunding” of the police. 

It is obvious though that IHIT rolled the criminal trial game dice, and they lost, they busted.  In doing so have blemished the already burnished reputation of IHIT.  Only Mad Men would have taken the chance. 

For the record, this writer does not believe there was any “policy” of non-compliance. In fact the Acting Officer in charge Michelle Tansey of IHT recently said “this was not policy”.

David Eby the Attorney General for the Province of B.C. is “studying the viability of an appeal” even though the BC Prosecution Service has already stated that an appeal would “not likely” be successful.

To measure his chance at a successful appeal, Mr. Eby may want to go down the hall in Victoria and speak with his new hire—the Director of Police Services for the Province— Wayne Rideout– and ask him whether in fact he authored a  direct “policy” of non-compliance. Seems simple enough.

Or the NDP and the RCMP can just roll the dice again …and hope no one else goes free.

(Full disclosure: this writer was one of members of Integrated Homicide Investigation Team from its inception in 2003 to 2008. All the parties in this blog were not only known by me, but I worked and consulted with the cops and the lawyers mentioned in this blog on a relatively regular basis. In addition, as a team leader of one of the investigative teams would also have been privy to any policies within IHIT )

Photo Courtesy via Flickr Commons by PositiveCandie_N –Some Rights Reserved

Pandering

Posted on by Pete Cross

Under the cloak of COVID, while monies are raining down from on high, the Canadian government has decided that this is an opportune time to pander to the select groups who hold the Federal Liberals dear to their socially active and political hearts. Their slobbering self interest doesn’t seem to know any bounds and it is certainly not constrained by any concern for budget. 

Is it all aimed at a near future election call by the Liberals? Most likely. Is it cynical, opportunistic and ethically questionable? Yes it is. Do their actions have any merit? Possibly, but it would be difficult to measure. However, their motivations are obvious. 

On February 19th of this year, in a single day, the Prime Minister announced three items with that somber voice designed to instil righteousness and clearly aimed at those of us with Grade 8 education levels.  

The first, which is economically debatable but politically obvious, was the extension of the CERB benefits for an additional 12 weeks. Sick benefits were extended as was Employment Insurance for a cumulative total of 54 weeks. The pros and cons of doing this is one for the economists to debate. Clearly though, the handing out of funds never seems to engender any liberal or social antipathy and Mr. Trudeau seems to relish the daily ritual coverage of the doling out of monies, as he guides us to health and prosperity and implores us to save lives.

The second announcement was the re-tooling of the Official Languages Act, which Mr. Trudeau described as legislation to further enhance that “beautiful french language”. In this “modernization” of the Languages Act  as presented by Ms.Joly (a rumoured “favourite” of Mr. Trudeau) should raise some concern and debate; although admittedly no one seems to be paying close attention to an Act to do with languages. It seems like strange timing in terms of priority, until you read what the changes entail. The Bloc Quebecois and the NDP who are currently supporting the minority Liberals must be aware that Mr. Trudeau is preparing to try and pull the rug out from under them— by usurping their claim as being a better representative of the people of Quebec. 

The first amendment is to Section 83 —which states that “nothing in the Act abrogates or derogates from the rights of other languages, by explicitly mentioning Indigenous languages”.  This is lawyer inspired convoluted language but the intended results are that Nunavut and the North West Territories will officially recognize English, French and “indigenous languages as official languages”.  Surprisingly, little fanfare to announce that Canada has another “official” language? It may also seem trite but compliance to this could have profound effect on the courts and the providing of government services.

Also in this Languages Act the government is proposing to “encourage” further funding for french immersion across the country– including the hiring of more french immersion teachers, and even stream lining a “Francophone immigration corridor”. All this to aid them in their search for French speaking teachers outside of Quebec. 

No matter how meritorious this promotion of the french culture and language it is coming at a time when French as a language and culture is dwindling. Using their own statistics, the francophone population outside of Quebec in 1971 was 6.6%. It was 3.9% in 2011 and is anticipated to be at 3.0% by 2036.  One has to question whether an “immersed” Canada outside of Quebec is a relevant and achievable goal. The Liberals clearly think so, but they are likely more concerned in how it will “play” in Quebec. 

Finally, since 2016 the Government of Canada has been “committed” to appointing “only functioning bilingual judges to the Supreme Court of Canada”. However, there was an exception clause in the act under Section 16(1) which was purposefully placed there in consideration of the need for geographic representation on the courts and a possible lack of bilingual judges in the unilingual West. The Liberals are now going to remove this exemption, so that all will have to be fluently bilingual to serve on the highest court in the land. This could have a direct impact on the makeup of this highest court, more francophone than representative.

As an oblique aside, the Government says that “it will be necessary to keep in mind the importance of representativeness of Indigenous peoples in the highest institutions of our country….”. They then direct the Government to “actively envision the appointment of Indigenous judges to the Supreme Court of Canada”.  One has to admire the “actively envision” language as camouflage for a direct order.

Which brings us to the the third announcement of this busy day.

It pertained to Bill C-22, which is to deal with the “Mandatory Minimal Penalties (MMP) as outlined in the Criminal Code and the Controlled Drugs and Substances Act.  They are announcing changes to the fourteen offences in the Criminal Code and six in the Controlled Drugs and Substances Act. Why? If you follow this Liberal government you probably have already guessed. Because, minimum sentences “targets black, indigenous and racialized communities”. 

Their blatantly stated goal is to bring down the numbers of the Federally incarcerated who are there due to “systemic discrimination and racism” and a system which they believe punishes “black and indigenous people”.   Mr. Lametti seems to want us to believe that this “over representation” was some form of pointed racist selection process, not the result of persons having committed the crimes.

The statistics are bold and clear.

 From 2007-2017 they argue “black and indigenous were more likely to be admitted to federal custody for an offence punishable by a MMP”.  Although only 5% of the population is indigenous, they make up 30% of the Federal inmate population; blacks represent 3 % of the population but represent 7.2% of the incarcerated. The answer, according to the social progressives, is not to try and stem the crime by fighting the obvious crime instigators like poverty and unemployment in these communities. Their solution, if parties are caught in a criminal offence, is to promote “judicial discretion”. They are directing Judges that they “must take into consideration the individual and their experience with systemic racism”. 

They will even be funding $28 million to “social contracts training” for  Judges in case they are missing the message. 

Is there evidence that mandatory sentencing doesn’t work? Yes, but there is also evidence that it does work, so this reformation is not necessarily based on the evidence— what it is based on is playing to a certain minority.  

In 2008 the Supreme Court of Canada ruled that minimum sentencing was constitutional but maybe not an “appropriate response” to Section 12 of the Charter which deals with cruel and unusual punishment. 

The pros of minimum sentencing point out that it eliminates disparity, provides consistency, and avoids Judge shopping. If one holds that the law should reflect the peoples wishes, in 2005 —74% of Canadians felt that sentencing was too lenient. It should be remembered that the minimum sentencing was brought into effect under the dreaded Stephen Harper Conservative government in response to Canadians and their complaints about the lack of justice. 

But none of this seems to have been the motivating factor for Justice Minister Lametti. What may be more relevant is that the multi-party “black caucus” issued a call to action  and “demanded the elimination of mandatory minimums”. Mr. Lametti a signatory to this document.  

There is little doubt that Mr. Lametti has been emboldened and given comfort by the courts, which are allowing him to play to the minority audience. 

In 2016 in R vs Lloyd, when dealing with some drug offences, the court thought that the drug offences and sentencing for them did not take into account “indigenous heritage and the impact of colonialism”.  In R vs Gladue the Judges said that a different “analysis and approach is required by Judges when sentencing aboriginal offenders and that “imprisonment is a less appropriate or less useful sanction”.  

Far be it for this writer to be in disagreement with the learned judges of the Supreme Court of Canada. They are a distinguished group of scholars, but their voting records seem to have a very natural lean to the left. Mr. Lametti and the Liberals are also playing in the Biden band and trumpeting whatever is currently playing in the North American media. The riotous Trump entourage is now thankfully gone but we now have the Trudeau and Biden love-in which could prove equally destructive and divisive with its approach to social issues, or rather its dogmatic adherence to Twitter driven policies.

Having lived most of my life in the criminal world, the positions of this Liberal government when it comes to crime and minority rights, seems at times completely ludicrous. We have been traveling down this left branch of the victim road for an interminable many years now. One has to wonder and ask that with each further step— are we getting any closer to some ill-defined justice utopia ? By creating different classes of criminals with different levels of personal and cultural responsibility are we moving towards justice and fair and equal treatment, or away from it? 

The Merriam-Webster dictionary says that the definition of justice is a concept on ethics and law “that means people behave in a way that is fair, equal and balanced for everyone”. Minimum sentencing seems to fit that definition whereas the policy of Mr. Lametti feels that the principal of proportionality applies and one should allow for “the role of the social context”, which seems counter-intuitive.

The symbolic scales held by the Roman Lady of Justitia symbolizes giving fair and objective consideration to all evidence, without showing bias one way or the other. Mr. Lametti and his Liberal colleagues are unhesitatingly standing on those scales and even trying to influence who hold those scales. They are brazen in their efforts, choosing a time when debate and accountability have been Zoomed out.

The fifth estate have been completely coopted by the the social agenda, content to just count the number of COVID cases and their variants. To them, application of justice, or the breach of charter and constitutional rights are far less interesting than Oprah, Harry, and Meaghan. The pablum of celebrity successfully diverting us from worthy debate on issues of importance; and, that is what the Liberals are counting on.

Photo courtesy of DonkeyHotey via Flickr Creative Commons – Some Rights Reserved

Tinker, Tailor, Friend of Bob’s

Posted on by Pete Cross

Is he a spy? Is he a criminal?  Or was he just an academic who turned out to be not quite the wunderkind that the upper management of the RCMP purported him to be. 

Who is this 47 year old Cameron Ortis? Someone out of a le Carre novel? A dysfunctional nerd? Someone living quietly in the shadows, but craving adrenalin? A crass profiteer? It is likely that the eventual story will be some combination of all of the above. 

As John Le Carre said in his most famous of novels Tinker Tailor Soldier Spy “the more identities a man has, the more they express the person they conceal”.

But whoever he is, or was, or wanted to be, things didn’t turn out for him as well as he expected considering his somewhat blessed rise in the RCMP. 

Mr. Ortis joined the RCMP, in 2007, coming in from the academic cold; after having obtained a PhD in International Relations from the University of British Columbia. It may prove relevant to his eventual court case to note that Mr. Ortis spoke Mandarin and for his Phd had travelled extensively through China. As part of that thesis he interviewed many individuals in the underground world of hacking in China.

By 2016, nine years into his job, he had convinced many of his ability to lead, and was promoted to being the Director General of the National Intelligence Coordination Centre. 

This is also the unit responsible for the RCMP efforts against cybercrime.  As originally structured, the Cyber Crime Fusion Centre stood on its own but in 2014 was placed under the aegis of the National Intelligence Coordination Centre. This higher profile for the Centre resulted in greater funding and resourcing with the inclusion of that cybercrime responsibility. Mr.Ortis with his academic background in cybercrime was therefore, it would have been argued, a natural fit.

It was in November 2011 that Bob Paulson became the Commissioner of the RCMP.

Clearly the appointment and some level of friendship Cameron Ortis enjoyed with the new Commissioner aided in this bureaucratic re-structuring as well as his rise in status. Global News quotes four high level sources who all say that Paulson was “instrumental” in Ortis’s rapid rise in the RCMP.  It was in 2016 that Ortis was promoted to the Director of the Centre by Paulson and the Executive Committee of the RCMP. He also became the first-ever civilian director-general. 

Since the arrest of Mr. Ortis now ex-Commissioner Paulson is backing away from his relationship from Ortis; saying only that “they had a friendly relationship” and then playing with semantics said  “I never personally promoted him”…but he was “ always impressed with him”.  

The Globe and Mail reported that Paulson even attempted to convert Mr. Ortis to a cop, rather than remain a civilian member, but ran into opposition from the uniform ranks.

As the Director General Mr. Ortis would have been cleared Top Secret and he would have enjoyed access to human sources and learned covert methods of information collection; not just by Canada but by other allied agencies. He would also have had access to the Canadian top secret network often referred to as “Mandrake”. This network links twenty different Federal Departments and distills the most important and secretive information flowing between them.  

It all came to an end for Mr. Ortis in 2019 when the coy and secretive Clark Kent look a like, was officially charged with eight counts under the Security of Information Act as well as the Criminal Code for Breach of Trust and Unauthorized use of a Computer. These multiple charges concerned passing on secrets to a foreign entity in 2015 and that he was gathering information in 2018 to do the same– that he had taken “steps to access, for concealing, or surreptitiously obtaining information”.

Commissioner Lucki later described these events as “unsettling” and that she was “shaken”, but maintained that all was well in terms of the RCMP relationship to the other intelligence partners. That is probably untrue.

Canada is a member of the “Five Eyes” which is an oblique reference to the other countries to which Canada shares or receives information. The United States, Britain, Australia and New Zealand are part of the group, but it should be pointed out that Canada is usually a “net consumer” of intelligence information. A bureaucratic way of saying that they are given far more information than they provide. 

There is absolutely no way that the Americans and the others would have been pleased nor happy about going into damage control. It would have by necessity caused a long audit of all operations, some with possible major ramifications. The ripple effect of this traitorous behaviour can often be far reaching in the world of the cloak and dagger. It could have endangered lives and significant covert operations around the world. Foreign intelligence cases may have had to have been pulled after being exposed by his subterfuge. 

As a former member of the Security Service, it can be said with little hesitation by this writer, that it was always  pretty well accepted that the United States had very little faith in Canada and would often vet any information given to Canada, fearful of its leaky bureaucracy. This episode is not going to help this decades long fear that others have had with the level of security in the RCMP.  It would be completely natural for all the partners to fall back and reassess all information sharing.

To better understand how Ortis rose through the ranks, one needs to look at the history of this unit .

Ottawa and the focus on Federal policing by the RCMP, was for the most part prompted by the single event of 9/11. 

The shock and exposure that this tragic event exposed was two fold; that North America could be a target, and secondly, that the RCMP in Ottawa was severely lacking in the Federal intelligence sphere. It was discomforting to know that the hijackers came through Canada for a reason. 

The Mounties had already had the Federal Security Service  taken away from them in 1984 (and transformed into CSIS) and they were scrambling to both appear and be relevant to their political bosses.  That effort continues to this day, as the Mounties continue to struggle with the Federal versus Provincial divide. The RCMP is currently a schizophrenic organization, seemingly underpowered and overwhelmed in both mandated spheres. Spread thin many argue with an overwhelming mandate for any singular agency. 

But after 9/11, in all too typical knee jerk fashion, the RCMP began to exponentially expand its Federal presence; re-assigning both manpower and monies in an attempt to grow an FBI style policing model around intelligence gathering and dissemination. This quick expansion was often administratively cumbersome, often amateurish, and often shotgun-like in its approach. 

Some would argue that the Maher Arar episode in 2006 was evidence of this unprofessionalism and due in part to this unbridled expansion.  Suffice to say there are and were some serious growing pains that continue to this day. 

As part of this expansion and the need to demonstrate its prowess the Mounties greatly expanded its analytical role and like CSIS sought out academia. It was hoped that by plumbing the ivory tower this would at the very least add a level of educational sophistication, often difficult to find in the homegrown RCMP members. Like CSIS, the pendulum swung too far.

Management fell in love with the academics, who in turn were pushing away the investigational component and thus downplaying investigational experience. All effort was in exchange for this “enlightened” approach. Mr. Ortis climb to the top was part of this trend.

What is equally interesting is how this genius level Phd, head of an intelligence agency within the National Police Force; with a speciality in cybercrime; how you may ask did he got caught. 

To answer this question there is a great deal of evidence pointing to one individual. Mr. Vincent Ramos. 

Mr. Ramos headed a company called Phantom Secure, or Phantom Security Group. It turns out that Mr. Ramos had come under scrutiny by the Americans as he was pedalling “secure” phones to criminals. These phones allowed those intent on criminality to “go dark” –technically invisible to the authorities. This consisted of removing, using Blackberry phones, the GPS and tracking hardware and install encrypted messaging capabilities. He did this by routing the encrypted data through servers in Hong Kong and Panama while also using hidden usernames. 

To obtain one of these $4,000.00 per year phones, someone, another client, had to vouch for you. By 2018 Ramos and his company had about 10,000 subscribers. Proceeds were kept in cryptocurrencies. 

The attention Mr. Ramos garnered led to a massive investigation, made up of the FBI, the Australian Federal Police and the RCMP —the company business address was in Pickering Ontario. By the end of the American led investigation, over 25 search warrants were executed, and the RCMP had targeted Ramos using an undercover operation in Las Vegas.  

The arrest of Ramos in May of 2019, in San Diego, by the U.S FBI,  then led quite incidentally to the uncovering of an as yet unidentified individual who was  trying to pedal intelligence information to Ramos and his well-connected criminal group.   

The answer to how he got caught? Apparently, our Canadian cyber security expert and head of intelligence had sent an email to the Ramos group “offering valuable information”. 

Thus was borne “Project Ace”.  (The A in the name indicates that it was run out of A Division in Ottawa) . This investigation would therefore have been headed by the SIU in Ottawa, the same investigational group that gave us the Mike Duffy case and the Mark Norman case. One can only hope this turns out a little better.

Mr. Ramos has now been sentenced in the United States, to nine years and forfeited $80 million. 

It should be mentioned that there were other people involved with Ramos; Kim Augustus Rodd  (an Australian Thai citizen), Younes Nasri, Michael Gaboa and Christopher Poquiz. All of whom remain at large. 

After the initial headlines and the “shock” expressed by the Commissioner there have now been a couple of further developments.

Apparently Mr. Ortis had some administrative problems while heading the Intelligence unit. Three former “investigational analysts” (Francisco Chaves, Michael Vladars, and Danya Young)  have launched a civil suit against Ortis and the RCMP for “strange and controlling behaviour” under his direction.

They claim Ortis “misappropriated their work and used it for personal gain”, and further claim that Ortis and therefore complicit senior managers of the RCMP had mishandled the situation to the point that over 1/2 of the analysts had left the organization. In all they are blaming a “failure of leadership”.  

The obvious implication of this civil suit is that Mr. Ortis may have come under some level of managerial investigation prior to his attempts at being a spy. This possibility seems a little weak in terms of whether a human resources complaint would have in the end exposed Mr. Ortis.

Interestingly, neither Paulson or Lucki are named in the suit, although Paulson has already had to answer media questions as to whether he was protecting his friend from the employee complaints of mismanagement.   

The case against Mr Ortis is now before the Ontario Superior Court and by no means is a fait accompli that he will be found guilty of all these charges. There is a possibility that the demands of disclosure to a proper defence, will include presumably asking for names of witnesses and this could reveal some state secrets. Rather than expose these secrets the government could be forced to withdraw certain charges. 

The initial disclosure package contained 14,000 pages, a new normal in terms of the courts. This too could delay the process. It has also been learned that Mr.Ortis apparently kept a number of encrypted computers at home. 

There has long been a long standing saying that only the dumb ones get caught. That can be argued, but if a long history of investigations has taught this writer anything it is that even the good ones make mistakes. That being said, this academic was not that smart in terms of wanting to stray into the dark world. But he was clearly good at impressing those that needed to be impressed. 

Nor does this imply that Mr. Paulson is culpable.

It has long been known that Mr. Paulson was loyal and royally rewarded his faithful followers. (One only needs to check all the promotions his friends received just prior to his departure). Equally, Mr. Paulson in demeanour and in action seemed to want to portray and hangout with the learned academic clan. With his glasses perched at the end of his nose, he seemed intent on promoting the air and idea of being an intellectual constrained in the confines of the RCMP. It is extremely likely that he would have been enthralled with Mr. Ortis.  

It’s now been a year since Ortis’ arrest. In his last court appearance on September 4th., Crown and defence were still struggling with the large disclosure packages and arguments over what will be allowed to be introduced into court, and what will be determined to be too sensitive for the public eyes.

It is expected that the case will go well into next year.

Best bet would be that the Mounties are looking for a guilty plea. Guilty pleas are apt political camouflage and the intelligence partners will be demanding that nothing be revealed. It also seems likely that the upper management of the RCMP would like to avoid putting on display how well they were duped.

Will we ever learn the truth? More likely is that the small beam of truth when and if it finally shines through will have passed through a series of intelligence agency prisms.

Such is the world when one lives in the shadows.

Photo courtesy of Phillip Sidek via Flickr Commons – Some rights Reserved

Correction: This was recently pointed out, quite rightly, by an astute reader:

 “I enjoy your blog posts, and in general consider myself a kindred spirit. I must point out an error in your latest, however–the canard, rolled out again and again by U.S. conspiracy theorists, that “It was discomforting to know that the [9/11] hijackers came through Canada for a reason. ” 
This is incorrect. True, the LAX bomber was intercepted coming through from BC. But none of the 9/11 hijackers had circumvented US immigration controls by coming through Canada. The closest mention one can find of a Canadian connection to this atrocity is in the following article:https://www.nytimes.com/2020/01/23/magazine/9-11-saudi-arabia-fbi.html

If the 9/11 commission had identified such a Canadian loophole, it would have said so. 
Canada doesn’t have a perfect record in the intelligence and security field (with the Air India bombing being the most egregious failure on our part to date) but we’ve made some progress. With, as you point out, some backsliding.
My only suggested correction to an otherwise sharp and perceptive blog post.”