Personal Story – “Heather” Part V

Posted on by Pete Cross

It was just two days since Heather had been found, and I was sitting, head down in a concentrated effort to get through the neatly arranged stack of reports, fighting the late afternoon doldrums, when I was approached by Gary Burke. Gary, was a former troop mate of mine who was currently working for the E Division Major Crime team, and their unit had been brought in to help.

Gary always had a smile on his face, whether delivering good news or bad news,  but as he plunked himself down in front of me, his grin was a little wider, he looked like he might burst. “I think we have something good for you” he said.

He began to tell me his story. Two investigators in his unit, Laura Livingstone, and Randy Hundt had just called from the road. They had some promising information on a lead they were following up on in the Maple Ridge area.

The day before, a Maple Ridge dispatcher had called our desk. She, like everyone else it seemed had been watching the tragic news and the recovery of Heather in the Park.  She had strong recollections of the day Heather had actually disappeared, and in fact had been working in Maple Ridge on that same date, when Surrey announced the search for Heather in Cloverdale on October 1st.

Hearing that Heather had now been found in Maple Ridge, more importantly in her detachment area was numbing.  She began to replay the time and events of those days in early October, the files she may have dispatched at that time. Disconcertingly I suspect,  she thought she remembered having had a call that day, one specifically concerning  Golden Ears park. It stood out in her memory as the Park was usually quiet at that time of year.

She was hazy on the details, remembering it being something about a vehicle. As she sat home that night reflecting on the news it continued to bother her. She needed to find out more and  try and fill in the blanks for her sake even if there was nothing to it. So she drove down to the Maple Ridge detachment to try and find the dispatch ticket.

She found the ticket by scrolling through the daily dispatch tickets, but it was actually on October 2nd, not the 1st, that she had the call that involved Golden Ears park. It quickly came back to her as she re-read the information.  It was in fact a call of a reported “suspicious vehicle” that  had been called in by park staff working there.  The dispatch information was brief, but indicated that an officer had in fact been dispatched, but there was no licence plate, and the eventual patrols closed the file saying that the vehicle was G.O.A. Gone on Arrival.

Nevertheless, even though she was let down somewhat, she called our office saying that we might want to look into it further, if possible.  So a new investigative tip was created, as were many that day, and Laura and Randy had been given the assignment to see if they could do any follow up on it.

Before I go any further I should point out that Laura is an extremely affable person which often belied an intelligent and investigative mind. Randy, a big guy with a flair for practical jokes, was smart, as stubborn as I, and a no holds barred approach to investigations. Paired up as they were on this date, it could be assumed that they would not miss anything, there would be no cutting of corners, or an un-checked investigative path.

They pulled the old dispatch ticket and identified the complainants as the campground workers; Mike Zabaglia, Michelle Mackie, Kyle Johnson and Stuart Paul.

So Randy and Laura set about finding and speaking with the workers, and they learned that: on October 2nd at 0650 in the morning, the employees were driving into the park heading to their office to pick up their respective work vehicles.

As they drove in their car pool, a slow moving “big boat” of a car appeared in front of them, the driver wearing a hoodie.  It was difficult to pass, so they followed it for quite awhile, until about 1 km south of the boat launch. They thought the behaviour was rather strange, but on they went to the office, got their vehicles and headed out, some going south towards the entrance to the park; in other words back from where they had just come.

One employee, began his work assignment, and was driving back towards the entrance to the park, and is somewhat startled to see this same questionable vehicle, this time parked, also facing south. The hood was up but no driver could be seen in or around the vehicle.

So the park employee drives by but calls on his radio into the office, and reports this second sighting. It was agreed that it was too suspicious to ignore, and decided to call the local police to see if they could come and check on the vehicle.

Meanwhile a second employee around 1030 or 1100, also driving towards the entrance to the park, and after hearing the previous report of the vehicle being parked alongside the road, had driven by and noticed that the vehicle was no longer pulled over on the roadside. So he continues on, heading to do some work at the boat launch area.

As he drives into the normally deserted parking area, there is the vehicle again. This time parked on the boat ramp, again with no sign of the driver in the area. He too calls into the office via his radio, and gives them the updated information.

The Maple Ridge RCMP were now sending a police officer to check it out some the employee continues on his work schedule, and eventually leaves the boat ramp area. The vehicle was still parked and vacant on the ramp as he left.

More minutes go by and now this same employee circles back to the boat launch as much out of curiosity as anything else, but as he approaches the general vicinity of the boat launch, he meets the suspicious vehicle, now heading out of the park, this time driving at about 80 kms an hour. He later describes the vehicle as “large”, and “blue or grey” in colour.

Needless to say by the time the RCMP patrol they do not find the vehicle. Too much time had passed prior to their arrival. The officer concludes his file, typing GOA into the electronic dispatch system. A routine call had ended with little or no effort.

Laura and Randy press on with their inquiries, and they learn from one employee that he thought they had written down the plate number, possibly on one of the park log books, but he could not be certain. They decide to go back with the employee, now with their interest slightly peeked, to try and locate the logbook.  Sure enough they find the logbook. And there in a corner of the book, under the date of October 2nd, there is a hand written inscription, written at an angle along the edge of the page simply stating  “DRE -666”. Clearly a licence plate number.

Now hearing the numbers 666, if you don’t know, it is often referred to as the number of the “Beast” in the New Testament; a symbol of the devil, or used to invoke the devil, a symbol of the anti-christ.  So at this stage of the story it gives me a bit of a pause and I look at my story teller with a raised eyebrow.  To say that I was not in the mood for a black humoured prank would have been an understatement. “No, No” Gary says, picking up on my look. And then he goes on with the story.

The vehicle licence plate, now checked, comes back to a 1971 Chevrolet Impala ( a big boat of a car would be a fitting description), green, and the registered owner was one:

Shane Ertmoed, born December 22nd, 1977. making him 23 years old at this time.  The vehicle was associated through registration records to an address in Vernon.

But it got better, as Gary continued. They had learned on October 2nd, one day after the disappearance of Heather, and on the day that the vehicle was spotted in Golden Ears Park, Mr. Ertmoed had renewed his drivers licence, and dutifully provided his new address, which was now:

Unit #8 at 17700 60th Avenue, Cloverdale, British Columbia. The same address as Heather’s complex.

We both exhaled, and I sat back in the chair, Gary just looking at me. A few seconds went by in silence as if by talking we would have broken a magic spell, the news too good to be true. If I was tired before, that was now all gone. A nervous energy began to build in both Chris and I, as we began to realize the enormity of this information. We may have just caught the the break of our lives. Another mistake by the suspect may have just been uncovered, a big mistake.

Coincidence is defined as a remarkable concurrence of events or circumstances without apparent causal connection. I don’t believe in coincidences, never have, and I did not believe for a moment that this was going to turn out to be a coincidence.

Was it possible that an individual named Shane Ertmoed, who lived in the same complex as Heather, just happened to go for a drive in a park some 40 kilometres away, one day after her disappearance, and it was the same remote park where Heather was found half-naked floating face down in the lake?

Although all the neurons were now firing, I still  needed to restrain initial impulses, needed to be alive to it actually being a coincidence and nothing more. I needed to be alive to the fear of all investigators, the dreaded “tunnel vision”.

After briefing the investigative team, we all headed home around ten that night, exhausted but needing a rest from the marathon, but a marathon that now had become a head long sprint.

There was also one thought that overrode the excitement of the day, one idea, one realization that seemed to be intent on beating the investigative break Gods into submission.

There was no evidence.

We had nothing.

We had a young male that we suspected was involved, but nothing tying him to Heather. No evidence to tie him to the killing in any way, other than proximity to two separate and diverse crime scenes. To know of him, to identify a possible child killer and to not be able to prove it may be a worse fate than not knowing at all.

Exhaustion provided a few hours of sleep, but a very early morning was met with the same mangled thoughts, the testing and re-testing of investigative options, most reviewed and discarded in a few seconds.

But from this filtering and deciphering, this constant give and take, clouded with fatigue,  resuscitated by coffee, something emerged.

I now had a plan.

It was a relatively simple plan, a plan reliant on a single elemental investigative tool, but a tool relished by investigators. We still had the element of surprise.

Photo courtesy of Creative Commons via Flickr by John Lambert Pearson entitled “Clue” Some Rights Reserved

 

 

 

Diversity vs Merit…planned discrimination?

Posted on by Pete Cross

The term, affirmative action, in the 1960’s was a dictate given to the Government of the United States under then President John Kennedy to hire or give equal opportunity to the disadvantaged, to hire “without regard for race, religion and national origin”.  It was often designed to compensate for past discrimination, persecution, or exploitation by the ruling class.

A laudable goal to be sure, as the intention was to pull up those that were disadvantaged, to take away any roadblocks that kept some down and not able to compete in the economic world of the day. It was a typical liberal policy reflective of those times, it was  “Camelot” and the Kennedy era, where equality and fairness were the principle objectives and would be emblematic of the ensuing two decades of U.S. policy. It was the era in which I grew up and came to self-identify. It was the era when governmental change was an instrument of good and it was a time when people wanted to give back.

The goal of  affirmative action advocated a generational change, a lengthy process to be sure. Not to be accomplished overnight, or even over a single Presidential term. In almost all circumstances, a formative change actually requires patience, and it requires a cultural change.

If these goals outlined by Kennedy and to a smaller extent by Pearson in Canada in the 1960s were to reach fruition, then there needed to be education and time. Politicians being what they are in our democratic and fixed term systems are not patient, they want to see and boast about change in shorter windows of time. Long term planning or even projecting out for 10 years is difficult if not impossible, and there in lies the rub.

So “affirmative action” and what it came to mean began to evolve, mainly to suit political need for instant gratification.  They needed to force the issue, to put persons into roles or jobs, or education, earlier than generational change would allow.  Qualifications, or deservedness would have to take a back seat. That some tolerance be built into the selection process, that qualifications be bent and sometimes lowered so that these persons could immediately or quickly fill these roles.

In other words instead of all boats rising with the tide, it became necessary to “favour” certain groups. This re-interpretation of the meaning of affirmative action was not a subtle change, it was one which has had a massive ripple effect.

The world began to follow suit.  Some countries, including the U.S. even began to use a quota system, where a certain percentage of government jobs, political positions, and school vacancies were reserved for specific  members of certain politically chosen groups. And this continues to this day.

Of course this by definition means that not everyone is treated equally and it would be only a matter of time, before some took umbrage with a system, which by its very nature excludes certain individuals, albeit usually the more advantaged groups.

So in most recent years, it has been generally true that countries where there are laws dictating racial and gender “equality”, many of these affirmative action programs which had dictated quotas were now declared illegal. The U.S. courts in particular saying that affirmative action programs  dictate that not all persons are treated equally, and therefore should not be allowed.

However there are countries in the world where quotas are still allowed, and have been used, and continue to be used extensively.

Nathan Glazer in the Harvard Crimson argues that the quota system divides people into categories, into racial, ethnic, and gender profiles. And benefits, and penalties would now adhere to these various compartments. “People would try to advance on the basis of group membership rather than individual capacity”.

In Canada, the politicos sensing some possible rejection of affirmative action and quotas,  began to use a new term, something they believed to be less offensive.  So we now have been programmed to accept the new “diversity”. Diversity, is defined as “the condition of having or being composed of different elements”. The Miriam dictionary then goes on to say that it can mean”the inclusion of different types of people, (such as people of different races or culture)”.

It is government speak for affirmative action in general, and they have replaced the likely illegal “quotas”, with “goals” or “targets”. They play to the “disadvantaged” groups, to try and counter balance a legally tenuous position. There is little argument to the fact that affirmative action is in fact discriminatory. Discrimination defined as “treatment or consideration of, or making a distinction in favour of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather on individual merit”.

But whether one agrees or not, we have a government who has become fixated with the need for “diversification.”

Of course the real balancing act is how far does one swing the pendulum, how far and to what level  is for instance, is one prepared to ignore merit in favour of ethnicity, or gender, or a visible minority.  Practically, in terms of hiring or university admissions, it is difficult to give specific policy or guidance as to how one needs to approach the problem without stepping over the line. How does one apply goals or targets without imposing quotas? Very few politicians and bureaucrats seem capable of reflection, they approach it like a quota, easier to apply, and easier to boast about their numbers.

In 2016, the Federal government announced a new appointment process for boards, agencies, tribunals, officers of Parliament and Crown Corporations. It specified that “diversity” was the goal, while it opened up the applications to the public. In other words, it did not set or say the word “quota”  per se but encouraged the government mandarins, and put them on notice that they would be measured by their attempts and delivery of “diversity”.

According to this same article, the Privy Counsel office has now released its numbers so that of the 429 appointments that have been made to date since 2016; 56.6 per cent women, 11.2 per cent were visible minorities, and 9.6 per cent were indigenous.

It then goes on to prove its point by counting the numbers:  48.3 % women, 16.1 per cent minorities, and 6.5 per cent indigenous. In Canada it points out, there is actually 50.9 per cent women, 22.3 per cent visible minorities, and 4.9 per cent indigenous. They are not arguing a generational change, they are pointing to their targeted “goals”, their “quotas” having been met. There is no other way of explaining it. Are we to believe that in one year, more indigenous people, or more visible minorities have been in a position to apply for more governmental posts because of improvements in their education or in their qualifications. That would be difficult to believe. It is far more likely they have been pulled up to fulfill a quota.

Justin Trudeau often brags about his “diverse cabinet”.  What he actually means is that his cabinet has been chosen in a quota system. Today in the news, the CBC headlines the fact that the Canadian government is now beginning to be as “diverse as Canada”.

Wendy Cukier, who is the director of Ryerson University “Diversity Institute” is happy with the numbers and lauds PM Trudeau for having made “great strides on gender”. She would like us to believe that in a year period, more females became more qualified for various jobs because there was “equal opportunity” got those jobs. Or is it possible that they were told to fill more positions with women regardless of merit?

This is playing out in every walk of governmental life. In policing we went through the quota hiring of women, and various visible minorities over the years. Every government department Provincially and Federally has fallen in line with this type of quota hiring.

Persons are gaining management positions, or being accepted into specialized jobs, not because they are the best person for the job, but by the fact there application is being skewed in their favour, sometimes to a large degree; skewed by their colour of their skin or their gender. It is troubling, for example, if a hospital is hiring a doctor, should merit not be the only single factor?

There are those that would put a strong argument in favour of “quota” hiring as a way of righting the wrongs of the past. If one accepts this principle, one is in effect accepting and proposing one level of discrimination, to right the wrongs of a historical discrimination. But be it as it may, my argument is that if the government of the day feels that this is acceptable, then at the very least they should be honest in their intentions.  It should not be allowed to be portrayed as an equal playing field to the general public. It is not.

Where “diversity” is a stated goal and gender or sex is part of the selection criteria it should be stated clearly. People should know that if you are applying for a police force as an example, other factors are coming into play, including the colour of your skin and your gender, and they should be told what is the given priority, and how it would affect their application.

An issue that also naturally evolves from this process is the growing need to determine if there are some significant after effects to this practise. If one continues to hire under qualified people, does the job suffer, does the output suffer? If they are not the best people for the job, is the job being done in the proper manner? If one throws out merit, or lessens merit in a bureaucratic system, does advancement and morale suffer?

We are now in a position where we have to question both the deserved and the undeserved. When you know the hiring process, and the priorities of government, it makes one question, why or how someone was chosen for this job. It may reflect badly on the person holding the job, tainted by this quota policy, even in cases where in fact it was deserved.

Were members of Trudeau’s cabinet chosen because they were the best for the job, or because they met his mandated quotas and play to his constituencies for whom he wants to be seen as the saviour. Women voters, non-visible minorities, and the up and coming indigenous groups are the stronghold of the Liberals, the bastion they hope to win over in future elections. The answer seems obvious.  Trudeau and the Liberals are engaging in obvious vote buying, and the Conservatives and the NDP are trying to do the same and get in on the action.

They are all playing politics to a high level, and it is costing this country. Merit has been given a back seat, “diversity” is the mantra being extolled by every politician from every pulpit. Do not challenge or you will be portrayed as a racist.

One could point out that the apartheid government in South Africa, as a matter of state policy favoured white-owned, especially Afrikaner owned companies.  It was clearly in place  to prolong white rule and power, and this quota system was discriminatory and the world celebrated its eventual downfall. But any quota system is discriminatory, the only thing that changes is the target of that discrimination.

I believe that when merit is given such short shrift, when merit becomes secondary to optics, everyone loses. We become compartmentalized. My stand is the one echoed by Nathan Glazer in that affirmative action, as it was originally intended is still a worthwhile intention. However,  quotas, thinly disguised as “targets” or “goals” should not be acceptable at any level, whether being practised by your government or your workplace.

And if you think some level of discrimination is o.k., then at least have the backbone to articulate and specify who in society you wish to treat as more equal than others. And then let the public decide.

 

Photo Courtesy of Creative Commons via Flckr by Edyta Mazur – Some Rights Reserved

Merry Xmas to All….

Posted on by Pete Cross

To my few readers, first I wish to thank you for your interest and feedback over the last several months, as I indulge in this fantasy of trying to be a writer.

It has been a busy year, and like all of you I’m sure, one filled with the ups and downs of life. The good, the inconsequential, and the fearful, in this era of the Trump shadow. As Xmas day gallops toward us, for some reason it tends to make me look back with a poignant but peculiar nostalgia.

I always remember the Xmas’s lost, the Xmas’s where I worked, coming home to the kids, but sometimes coming home to an empty house.

The Xmas where I was the only officer in the town of Bella Coola, British Columbia, nestled in the middle of nowhere on the British Columbia coast. Rain poured in sheets, almost hurting as it hit the skin. I ate Xmas dinner with the only openly gay couple in town. They had recently purchased the local bowling alley, escaping and hiding from the city life they left in Vancouver. They took me in that Xmas, and served me a goose dinner in the attached coffee shop, while the rain lashed the windows in the restaurant while the dimly lit bowling lanes acted as a backdrop. It is a great and fond memory. I went home to the detachment, and then realized that the Xmas tree that I had cut was still on the back porch of the police residence, never making it into the warmth of the house.

There was the many Xmas’ working in uniform, where by three or four in the morning you found yourself parked along side another officer, smoking, or drinking coffee, yawning uncontrollably, and wondering how you were going to be able to stay up when you got home. Praying that there was not another call coming your way and you could bask in the nothingness of pre-dawn.

There was the  Xmas in Newcastle New Brunswick where I answered the domestic disturbance call. I pulled into the driveway on Xmas eve, just as the overwrought husband through the Xmas tree through the front window, landing in the front yard still adorned with bulbs and lights. I arrested Dad, but I still wonder how and where those children are now, what kind of adults they became and I hope they are ok now.

Now that I think of it, I think I spent more Xmas’ with criminals. This is not intended to imply that this was always negative.  People seem to change a bit over the holidays, even the eight per cent of the population that we dealt with routinely as police officers.  A lot of laughs were shared over the cellblock counter, despite the often desperate situation they found themselves in, and it was not unusual to see goodwill extended to others while there. As they feasted on the government supplied meat pie, slice of white bread, and instant coffee they were pretty far removed from the turkey extravaganza but they seemed to appreciate you being there in some sort of misplaced way.

There  was also something emotional about being out in the middle of the night, patrolling, sometimes alone, standing herd over the darkened houses. It gave you a sense of real, measurable worth. Things always seemed pretty good.

So to those of you who find yourself sitting in those same police cars, biding time, counting the hours until dawn, sneaking into the radio room to scoff down Xmas cake and cookies brought by considerate dispatchers; enjoy it, as it is a fleeting feeling.  It is a Xmas not experienced by most, and it highlights the sometime and somewhat elusive purpose to your profession. Police officers in Toronto, in New York, and in Brandon, Manitoba are all having and sharing that same feeling, as they stretch, and look up at the brightening sky.

Then go home and hug your kids if you have them, if you don’t, hug someone else’s kids. Yours was the night, but now the day belongs to them.

Merry Xmas everyone….may you always come home to a full house….

Pete

Image Courtesy of Creative Commons by Coral Lacey entitled “Deerly beloved” Some Rights Reserved

Personal Story – “Heather” – Part III

Posted on by Pete Cross

It was now 0500 in the morning of the next day. So with the third or fourth coffee in hand, and we were back in the Surrey detachment main office, anticipating what was to come, somehow knowing that this office, this desk, and these walls could be my home for the foreseeable future.

Although it was distant from Cloverdale and the search areas, I also knew that this place, once daybreak arrived would begin to take on an atmosphere of its own. There is an ill-defined energy which any homicide generates in a police office. People coming and going in various stages of fatigue, an air of practised urgency, and every once in awhile it would be interrupted with sporadic shots of adrenalin due to some unexpected turn in the evidence.

This early inherent urgency, or drive, can sometimes be short-lived.  There seems to be a direct correlation between victim type and the length as to how long an investigator can keep a file moving.  In this case, a small girl was a possible homicide victim, and she was still missing, in some senses an investigators nightmare.  Twenty hour days would be the norm. There would be less bitching, more cigarettes, less week-ends off, less time with one’s own family, and pizza would be the culinary favourite.  It is not like the television shows in that it is not as emotional as some would like to portray it; it is more of a machine kicking into a higher gear, but like a marathoner, where one had to control pace, and hold focus.

This first quiet moment between Chris and I was therefore likely to be the last for awhile, just a momentary pause.

This of course was the “old days”. So this investigation done on paper.  Hand written reports, forms and notes, would become the 8″ x 10″ medium through which the investigation would take shape. Paper would be filling cardboard boxes, and those boxes would eventually take up spaces around us, giving a bit of a warehouse feel. Often Librarian skills would be more advantageous than investigative skills.

Each piece of paper being assigned a number, each piece of paper being a separate piece of information. If an officer filled in a report, and it addressed or revealed four pieces of other information, then four separate reports would then be generated, then all wold be put in four different folders pertaining to each item. Laborious? You bet. Efficient? We thought so. But of course the coming digital electronic age would make this all seem comically archaic.

For instance, if we had to  search for a single item. Well we had to remember where we had seen it, and in what folder. So, as an example, if someone mentioned a white Ford pickup, we would have to remember where we read it, and in what folder. It worked well when the file may be only a couple of hundred folders and a couple of hundred pages. It relied on a good memory and a concentrated effort.

However, when the file reached thousands of pages, as this one would, it became an exercise in re-reading, duplicated efforts, and it was often frustrating. Overlaying it all,  like Poe’s Raven, was the inherent fear of missing something key to the investigation.

As the days came and went, in amoebic fashion the paper would grow, taking on a life of its own. Everything found, every person spoken to, every news item mentioned, every tip called in would need to be read, documented and filed. It was a mind numbing process and complacency was the enemy. Any follow up was hand-written and forwarded to the individual investigators. An increase in investigators naturally led to an increase in paper, the Catch-22 of police bureaucracy. In a few short days, the investigative team would grow from two of us to over forty or fifty individual investigators, borrowing from Robbery, Serious Crime, and other sections within the detachment.

Decisions big and small, would need to be made as fast as the questions could be uttered, answered more by instinct than a layered thought process. There would be no time for routine debate, or second-guessing, hoping beyond hope that somehow we had learned something over the years that would not let us down, or cause us to overlook something in our needed haste.

And of course there was numerous calls from the general public, which led to the establishment of a “Tip Line”. My immediate boss, Sgt. Mel Trekofski, wanted to pitch in, and offered to take up the monitoring of the tip line, a thankless task at the best of times. It required “carding” each individual, call-backs to verify the information, and therefore seemingly endless conversations with persons, some good, some ridiculous.

As the file went on, over five thousand tips would eventually be received, with over forty psychic callers alone. The self-described “professional” psychics would all offer up where the body of Heather could be found. So you heard the “Woods”, the “water”, and “buried in a shallow grave”. There were many calls where they went on to say who was responsible,  and in many instances it was “the father”.  But, if not then a “white individual” who “worked with his hands.”  Some even offered to take investigators to the body, something we couldn’t ignore, but of course these did not pan out, but did extend my belief that there were a lot of “crazies” in the world. I never had a paranormal observer, if Im being kind, solve a file for me, and this wasn’t going to be the first.

The logistical jigsaw puzzle continued as we needed to address staffing issues and all the usual secondary administrative issues, at times like a Rubik’s cube, multi-dimensional, spinning on the singular axis of trying to keep the investigation on track.

As the searches ended, the neighbourhood inquiries continued in earnest, as did the forensic examination of objects which had been found. Investigators were assigned to each parent, and other investigators began criminal record checks, as well as local police record checks, on all individuals spoken with or identified as part of the investigation.

Panties, jeans, shirts, jackets, socks, sandals, some of which were in dumpsters were shown to the parents in the event that they had belonged to Heather, and if not, catalogued and maintained in any event.

Neighbourhood personalities, like “Pedophile Darcy”, surfaced through the townhouse inquiries as we began to dredge through the individuals in the Cloverdale complex, and the other people in the neighbourhood. “Darcy”, was typical of the type who surfaced. Darcy, of course, drove a white van, and in his past had been caught masturbating on a child’s  bed, and had a record of sexual assault. So he became a subject of our surveillance team, and in the end we were able to eliminate him from any involvement. There were others similar to Darcy, and each took time, each tip had to be ground out, and it took several days to eliminate Darcy and the other archetypes as they surfaced.

Checks through our VICLAS (An RCMP victim Classification software) system for this area of Cloverdale surfaced a possible fifteen individuals of interest because of their sexual predations. Each of these individuals would be located, interviewed, and reported on. Each would need to provide an alibi.

Checks of all those with criminal records for sexual assault and now free in the broader City of Surrey of which Cloverdale was just a suburb, revealed another five hundred possible “individuals of interest”. It would take years to eliminate that many so we had to narrow the search, at least in the short term, to just those that had violently offended on pre-pubescent children living in the Cloverdale area. This still gave us twenty-seven names. Investigators were assigned to each.  It may surprise some to realize that in most cases these individuals co-operated, and were expecting us. When the investigators arrived some had even already prepared their statements and had their alibis in order.

Others, of course would try an investigators patience, testing their emotional mettle, and you could not help but be pulled you down into the dark reaches of sexual perversion.  In matter of fact voices, they would describe how it couldn’t be them involved, as their method was different in terms of the suffering they would inflict in their need for sexual satisfaction. Some described why she could be alive, to be kept as a sexual play toy.  Any killing of her would have be only to get rid of the evidence, and a “waste”,  and any killing of her would be a signal that things must have gone wrong. This insight would later prove to be accurate.

A crack dealer living in the complex, who had been described by persons in the complex as coming and going in another  “white van”  became an obvious possible suspect. Once identified, he admitted to dealing drugs, and offered up his sales notations, his “crib” sheets as evidence of where he was at the time of Heather’s disappearance. No “normal” criminal he explained likes sex offenders; whether in jail or on the street and the drug dealer wanted to help.

As the investigative team grew, briefings, and de-briefings were our life-blood. Every morning at about 0630 I would brief upper Surrey detachment management, and then at 0730 I would brief the investigative group as to any developments or any change in focus. At 4:30 in the afternoon a de-briefing would be held with these same officers to learn of any highlights. In between of course there was the media to deal with; calls dealing with expenses, computer check results, surveillance assignments, tip line results, and other more sundry items.

By 6:00 pm, as things slowed a little, I would sit in front of a stack of reports, about 2′ high, and begin reading. Chris would then read the same paper after me, just to insure there were a second set of eyes. We would check for any cross references, then the paper would be filed, new follow ups drafted and assigned. Coffee was my particular drug, and stretching for the long walk to the bathroom began to be a highlight which broke up the trance like nature of our task.

Three or four hours fitful sleep a night would be our routine.  Upon returning to work, the process started again. Days drifted into nights. Nights became sunrises.

Suspects surfaced and then drifted away after examination; mounds of dirt reported as shallow graves were examined and dug out; clothes continued to be turned in; suspect vehicles were identified from having been seen in the area; and the psychics from around the world persisted on being heard, each with their own, but similar investigative theories.

Americas Most Wanted called wanting to profile the case. That in turn generated two tips that proved of no value. Europe, and parts of North America were all now paying attention.

We read, often re-read, re-shuffled, and then sometimes re-assigned.

And of course, there was the ever present media, their trucks stationed inside the complex itself,  giving nightly broadcasts and voicing the concerns of the general public. With Halloween getting near, they often regurgitated the growing parents concerns with a killer “on the loose” and asking whether they would let their children go out trick or treating.

As the investigation wore on I kept remembering how I was once told (by who I can not remember) that in every murder there are five mistakes made, its just a matter of finding out those mistakes. Simple really.

Of course every murder is different, every set of circumstances different. In this case we believed that this had been an “opportunity killing” by a stranger, and likely sexually motivated. Statistically, at least, the most difficult of all types of murders as these things go. Many remain unsolved. For instance, in 1996 only 14% of homicides were committed by a stranger. In 1976 it was only 18.4%, and in 1985 17.3%. Consistently low numbers.

If you looked further, and included the age of the victim, in a U.S. study only 3% of homicides were committed by strangers of victims under the age of 12. When a sexual related offence was the motivation, it drops even further down to 1% of the cases.

In checking with the FBI on this case, we learned that there had been only 4 or 5 of these cases in Western North America at the time of Heather’s disappearance in the year 2000.  So although abduction of a child is a parents greatest fear, it is actually an extremely unlikely event. Patterns are harder to detect, as there is insufficient historical data. A serial offence on children was almost unheard of, but of course none of the statistical data, or lack of data was of much consolation for the mother and father of Heather.

Investigative pressure does grow, from the public and from within. Maybe not at the levels of the tv drama series, but it is there. The greatest pressure is put on by the investigators themselves. At some point you begin to realize, rightly or wrongly, whether solved or unsolved, that this investigation will be attached to your name, especially in police circles. You will be perceived in a different light in the future.

A sense of pride takes over, the not wanting to be beaten. The emotions shut down, as the  constant images of the victim is too disarming, too distracting. One could not function coherently if you allowed yourself to become fixated on the depravity of it all, the senselessness of it all, the speculation as to whether Heather was alive or dead. To contemplate her alive and being held was in some ways an outcome that could be worse than death.

As a bit of an escape, a need at the very least to breathe fresh air, both Chris and I took a few hours on a Sunday to step away from the office. It was day twenty-two, and I decided to drive up the Coquihalla highway, a lonely stretch of highway in the middle of British Columbia, surrounded only by trees and rivers, just in an effort to clear the fog which had permeated my nerve endings. I stopped at the only rest stop, perched at a 3000′ elevation, three hours from Surrey. It was cold and gloomy, but I went into the darkened men’s washroom in this remote part of British Columbia. There at the urinal, staring at me was the Missing poster of Heather, eye level. I had always taken pride in my ability to disassociate from files when away from work. But clearly, this file was not going to let me do that. There could be no escape, not now anyways, so I decided to head back.

As I drove down the steep decline through the highway snow-sheds, once again I began to fruitlessly re-trace all that had been done, despite my blaring radio trying to change my obsessed thought process. I kept coming back to the fact that we needed to find one of those proverbial “mistakes”. I was not greedy, not all five, just give me one.

As I approached the Detachment in the darkening hours of the afternoon, just to check in, that I got a phone call. I needed to get back a little faster, because they think they had “found” Heather.

Photo Courtesy of Creative Commons by TrixSigio Some Rights Reserved

Personal Story – “Heather” – Part I

Posted on by Pete Cross

I received a “page”, seventeen years ago, that irritating incessant beep which kept repeating every few seconds. The message was always a phone number to call and receiving it implied by its very nature a sense of urgency. In some messages the phone number would be followed by a -911, to further underline the urgent request, which was the case in this instance.

As a member of the Serious Crime Section of Surrey RCMP Detachment, it usually meant that there had been a death, or somebody was barely hanging on, closer to death than life; and that it was likely violent, but above all else, that it was somehow “suspicious”.

It was 10:15 pm, on October 1st, 2000 when I got the page from my Sargent in charge of Serious Crime, Mel Trekofski and he in turn asked that I call to “partner” with me that night, Constable Chris Drotar, also a member of our Serious Crime Section.

Unbeknownst to us at the time, this particular page would change our lives, it would alter our perceptions of man’s inhumanity to man, and it would test our physical and mental abilities to a limit that we likely didn’t feel possible at that time. And thankfully, it would not be often repeated through the course of our careers.

We knew from the initial information that a girl had gone missing, a 10 year old girl, in fact.  Her name was Heather, and she was the daughter of Patrick Thomas who lived at the address. It was a little discomfiting to learn that she had in fact gone missing around 5:30 that afternoon. Already we would be starting with a time disadvantage, which in our world can sometimes mean the difference to success or failure.

The mother, Jodie Thomas was estranged from Patrick and lived in a different part of Surrey and would not be at the house.

Heather and her brother were at their fathers in Cloverdale,  as part of that common suburban divorce dance of shared custody. It was his week-end, but this was Sunday, and the kids were due back at Mom’s. But then things changed.

Search and Rescue had been and were still involved, along with all the neighbours who lived in the complex. Nothing of significance had been found as of yet, but the officers who were in attendance felt that “Dad” was acting strangely, and it was for that reason that we were being called; to interview Dad. The implications were obvious and unstated.

It was a typical October night, wind slighting blowing, leaves beginning to fall but not yet in full decomposition, coloured, but still clinging to the trees. We were asked to attend to Unit 26 at 17722 60th Avenue, in the usually quiet suburban area of Cloverdale, part of the not so quiet City of Surrey, B.C.

As we arrived in the dimly lit complex it was quickly noted that directly across the street was the Cloverdale Fairgrounds and the Racetrack. This was a Sunday, and on this particular day the expansive parking lot during the afternoon became a massive flea market involving hundreds of people. At the time of Heather’s disappearance there could have been thousands within a few hundred yards of the housing complex.

The wood construction of the worn town homes showed the usual green tinge along the edge and rooftops, mold that comes with incessant rains. It was an older complex, u-shaped so you could drive in a semi-circle and go out the other side.  It showed no signs of recent care, just the wear of years of  many children, a complex of about 50 units, who through its life was mostly populated with single parents and young couples starting families. Blue collar, trying to make ends meet, with a tinge of a criminal underbelly always found skirting the edges of poverty flecked neighbourhoods.

As we arrived,  it was quiet, as the people of the complex had by now retreated into their individual homes, no doubt staring out from behind partially closed kitchen venetian blinds.  Almost all had been searching for Heather around dinner time, all likely knew that she had not been located, so one can imagine the variety of explanations given to curious children as they got ready for bed that night.

As we drove up to the residence, with that usual mixture of adrenalin and apprehension, we were fearing the worst, but not quite prepared for that being the case.

The greeting uniform officers, who were unusually quiet, told us that they had searched the residence thoroughly, which is the first place to look for a child. Dad’s vehicle was parked out front, and it too had been searched with nothing found.

Inside the town home, it was like hundreds of others I had been in; some worn furniture, some new, usually a prominent t.v. and the usual evidence of active children. Right at the door, in clear view, was a knapsack, clearly a girls adorned with the usual hanging customized knick knacks which signalled that a girl owned and cherished it. It was in a position clearly in anticipation of heading out of the residence. It was clearly Heather’s and clearly untouched from hours before.

Chris and I introduced ourselves to the father, who sat in the living room, emotionless, wearing jeans and a collared shirt. Blonde, and blue eyed, of average height and build, a good looking man, he was staring straight ahead, saying little, no tears, no anger. There was little in his eyes, which is almost always the giveaway.  Nothing in his composure which indicated a reaction to  the most hellish of torments for a father. So, it was quickly apparent what the original attending officers thought was “unusual”.

I asked Dad if it was o.k. if we conducted another search of the residence, and his vehicle and he quickly and quietly agreed. He did not question why we were being this thorough. I also asked Dad if he would come to the police office, where we could take a statement, which he also readily agreed to, with no questions.

So at quarter to one in the morning, we sat in the interview room with Pat, whose demeanour remain unchanged.

Pat’s story was this.

Pat had been working on some carpentry in his residence. The two kids, Heather and her 8 year old brother Chris had asked around 4:30 to go out and play around the complex while they waited to go to their Mom’s. He said yes, but told them that they had to be back by 5:30 so that he could keep to the proscribed schedule.

Around 5 Chris came into the house, but without Heather, and Pat told him to go get his sister so that they could get ready to leave. Chris went out, could not find Heather, and came back a few minutes later saying exactly that.

Showing the usual parent frustration, Pat packed up and went out into the complex.  He began looking, talking to the various kids and parents as to whether they had seen Heather. It was learned after a short time from some of those parents, that she was last seen riding a 2- wheeled bike that she had borrowed from one of the other children.

A few minutes later, the borrowed bike was found, but no sign of Heather.  According to one witness, the bike tire was still spinning when they found it, near the front of the complex, in a parking stall on its side.

After we finished the interview around 2 in the morning, we were still just as confused as to Dad’s reaction, or more accurately, his non-reaction. Throughout he was totally co-operative, but he never mentioned the proverbial elephant in the room, which was whether we suspected him as doing something to his daughter. He just answered our questions, calmly and without hesitation.

We left the room, and dropped Pat back at the now growing Search and Rescue group on the Cloverdale Fairgrounds.  Still somewhat unsatisfied about Pat, however, we had come to one conclusion. The time-line, both drawn by the original officers, the neighbours, and our interview we felt excluded Pat from being involved. The circumstantial evidence did not leave any room or time for him to commit what would be an unthinkable act. Granted we were leaning on some years of experience and training, and trusting our judgement. Not always a comfortable feeling. And we were about to alter the scope or focus of an investigation as a result. If we were wrong, with the stakes this high, with the focus both within the police and the public that only a 10 year old girl victim can generate, it would be a decision that could haunt or taunt us for the rest of our lives.

In our opinion, we believed that Heather had disappeared, silently, although surrounded by thousands of possible witnesses.

Statistically, if this was a “stranger” abduction as we feared, the chance of Heather being alive was minimal, as too much time had passed since her disappearance. We also knew that there were only a couple of probabilities in terms of motive as to why a young girl is abducted.

If the suspect was not a family member, which was now our investigational theory, then we were now in our own personal criminal investigational nightmare. We were now looking for the needle in the haystack.

To be continued…….

Photo Courtesy of the Surrey Leader newspaper, a picture released to the public during the Search for Heather.

 

 

 

Personal Story #3 – “Bob”

Posted on by Pete Cross

We rushed through the darkness, eerily dark, in the only way a garbage dump could be at 2 in the morning. The lights of the police car, shone on hundreds of pairs of eyes, ground level, looking up at us.

Hundreds of rats disturbed by this single car, who had the temerity to enter into their feasting playground. A dump with rats is quite commonplace, of course, and the rats would stare normally, but the fact that I was sitting on the hood of the car as we drove, my leg wrapped around the Ford emblem in some weird safety pre-caution, poised with my trusty .38 revolver and firing randomly clearly caused them further discomfort.

The driver was my supervisor, Bob, who took great relish in circling back several times on the dirt and garbage covered dump, trying to run over them as well, as he did not want to be left out. Scaring me was not enough excitement for him. As I slid around on the hood, I could hear him laughing that barrel chested laugh, quite unsympathetic.

If the rats were hit by my bullets, in their death throes, they bounced up in the air, as if in a grisly attempt to not go down without some glory. This would also allow us to claim those that we hit. A way of keeping score.

Then it would be Bob’s turn. Bob was a better shot than I.  He always claimed that he kept track of the numbers, and that he always had more than me, and therefore I needed to buy coffee. I always believed him, why would a police officer lie.

Of course, our big game hunt only lasted a few minutes before persons living near to the dump, would call the police dispatch, saying that they are hearing gunfire nearby.  We would wait until dispatch assigned us the file, telling them we would handle it, and wait the necessary few minutes to show that we were some distance away, and then tell dispatch that when we got there, there was nothing around, and the file could be concluded. No harm done. Lesson learned.

Bob, my somewhat reluctant supervisor at this time is a 6’3″, dark curly haired fellow with a rudimentary moustache which does not reach the corner of his lips. I am being kind saying that he is 240 lbs. with a little bit of a belly. But somewhat deceptively, farmer strong, with boxer hands, and one of the only men I know who truly had no fear.

He was a practical joker, never took off his patrol jacket, even in the office, feet up, continually laughing or harassing who ever fell under his view. Smoked Players light, as did I, so of course we got along. Always clean, but always a bit scruffy, with unshone boots, and he never wore his hat, explaining that it was “just something to lose”.

He drove with one finger, easily guiding a heavy police cruiser through backroads at 160 kms if necessary, but I had no fear of his ability to keep us on the road. He could have driven at Nascar, but chose the New Brunswick rural roads instead. But, it was at those times that I did put on my seatbelt.

It was Bob that showed me that you could take mosquitos off the windshield of the cruiser with Coke.

It was Bob that showed me how to fingerprint a dead body, which is not an easy task. As rigour had set in on one body, he showed me how he could use the rigored splayed fingers, to hold your cigarette while you went about your task. Good lesson, but one I could never bring myself to fully incorporate.

It was Bob, who introduced me to the Coroner. “$25.00 Cowie” was his nickname, because for $25.00 he would pronounce anyone dead, and it was always the same cause, “heart failure”. Which when you think of it is never far from being the truth.

Bob and I had a call one time of a suicide, a depressed fellow had gassed himself in his own car, and we brought him into the morgue, his skin matched the blue colour of our police cars, and a clear sign of asphyxiation. Bob told the Coroner that we had found him in a ditch rather than in his car in the garage, and Bob had  “no idea” how he died; just to test the “heart failure” theory. He came through for us, pronouncing heart failure, but when we told him the actual details, he cursed and cursed at Bob, but changed the cause of death, to one which was more appropriate.

In another call, Bob showed me another trait.

A fellow swinging an axe like Paul Bunyon in the middle of the street had now holed himself up in his residence, and was demanding that the police attend, or he was going to kill someone. As we approached the now quiet ramshackle residence, nothing seemed out of order. I knocked on the door, when a male, clearly distraught, wrenched open the door, dressed as if he had been wrestling on the floor with some imaginary foe, saw me and quickly slammed the door again.

Again I knocked, and again he answered, but this time as he swore and slammed the door, unknowing that Bob had placed his .38 revolver in the door so it wouldn’t close, and allowed me to force the the door. Ten feet back from the door, the male glared, holding the axe with both hands over his head. I held him at gunpoint for a few seconds, and clearly the male did not have any intention of dropping the axe. It was a standoff. After a few seconds, I felt hands on my back, and gently Bob eased me to the side, so that he was the first in line, saying “if someone has to be shooting somebody, it might as well be me, you are just starting your career”. It ended peacefully and we took him into custody, where he lay crying in the back seat all the way back to the jail. No police suicide that day.

It was Bob who summed up who provided a succinct summation of police protocol when it came to officer safety, and threat assessment; “let them always throw the first punch”. Many subsequent mandatory RCMP courses on the same subject never quite captured the simplicity of Bob’s policy.  We fought a lot in that detachment, and I was never seriously hurt, but until I caught on a little better, I did get hit a few times. The more times I got hit, the quicker I seemed to learn.

Bob was clearly a street cop, but beneath the gruff exterior was a smart cop. He wrote clear, concise reports in the beautiful long hand of the day. He knew how far he could go, how far the envelope could be stretched, knew when the basis of the charge was there and could be proven. He and I would visit the local Crown on a weekly basis. Not necessarily to discuss Bob and my files, but to say hello, to let them know that there were faces behind these reports. He did it instinctively, I think unaware of how the humanizing of the process could only lead to good things in court, building a trust, and a friendship.

The question I am often ponder is whether Bob would have survived in this current age of policing. I am not so sure. Would he even get into the RCMP today? A Nova Scotia fellow with a high school education, and not fitting any current hiring priorities, it definitely would have taken a long time. And patience was not his virtue.

He lamented and threatened to quit when the Charter of Rights came in. He thought it would disadvantage the cops, the power would go to the wrong side. In his cop world, the police were trusted, but they were even-handed, their respect for higher management authority was minimal, and they had no problem saying what they thought. What was right was right. He did not look for backup, did not rely on or quote policy, common sense was his guide. He wasn’t infallible or ever wrong, but he admitted when he was. The thought of staying away from work for a sprained ankle, or a headache he would not even comprehend. He did not see colour or gender, but he was able to distinguish between right and wrong, and that was all that mattered. The general public if they had been wronged knew they were in good hands.

Bob was diagnosed with a terminal illness a number of years ago which led to him, to liquidate all his assets, getting a permanent tracheotomy, only to find out it was a misdiagnosis, and he is alive and kicking, and maybe just a little gruffer than before.

We have known and kept in touch with each other for close to 40 years now. He is part of me, and who I was as a cop. It is an interminable bond, and when we wordlessly hugged goodbye a year ago, we both knew it.  Nothing needed to be said.

 

 

 

 

Getting away with murder..there is a “substantial likelihood”

Posted on by Pete Cross

In October 2014, Theoren Gregory Poitras, 25 years old,  was found dead in Richmond, B.C.. Poitras, chose to re-locate to Richmond British Columbia from Edmonton, Alberta in what sounds like the proverbial “get out of town” scenario. Allegedly he was involved in the drug world there.

It was then  “alleged” that Sean Jacob Lee Jennings and David Nguyen also ended up in Richmond, also originally from the drug world of Edmonton, and in typical gang style killed Poitras, leaving him in his own blood, in front of an Elementary school.

The pair were charged with 1st degree murder. But in June 2017, three years later, Crown Counsel in British Columbia, very quietly, days before the trial, stayed all charges. They cited that “further evidence had been received…and there was no substantial likelihood of conviction”.

There it is, the statement, which like the Damocles sword is held over the police for each and every case which has been forwarded for charge approval. The police submit the evidence, and the Crown decides whether there is a “substantial” chance of convicting the accused.

Over the past number of years, local scuttle butt amongst investigators )there is no measurement of this statistic to reference) ; say that fewer and fewer cases are making it to trial.

Judges have even lamented to me that it seems that no one is willing to take cases to the trial stage. Add in the affinity for plea bargains, and there seems to be little seeming to work its way through an incredibly slow moving court system and actually be decided at a trial.

Is the Crown office “trying” the cases in the reports, and not in front of the courts? Is the bureaucratic need to avoid public controversy, or god forbid, the fear of losing in court, and are exposed in the public eye, keeping them from pursuing charges, when in fact charges are warranted.

We will probably never know. Crown can make these decisions in private, out of the public eye, and so far never seem to be held accountable for these decisions, or more accurately these non-decisions.

The Poitras investigation was part of a large IHIT, CFSEU, Edmonton Police and the Alberta Law Enforcement Response Team investigation. It seems Mr Jennings, upstanding citizen,  was also allegedly involved in a murder in Alberta; where he has also been charged with 2nd degree murder in a street shooting death of Alor Deng in Edmonton in July 2014.

Millions of dollars were no doubt spent in this Project, and numerous resources employed. When Jennings was arrested  for the Poitras murder, CFSEU and IHIT called a press conference to announce their successes. Now that the charge has been stayed in the Poitras murder there is now deafening silence from Crown, CFSEU and IHIT as to why this particular case has been dropped.

No one feels a need to explain.

The public will never know what “new evidence” was learned, new evidence which apparently was so significant that their case had been blown up. Did they charge the wrong guy? Did witnesses fall by the way side? Did the police contaminate evidence? Did the Crown drop the ball? This lack of openness helps no one. In fact it leads to greater distrust.

Which leads me back to this “substantial likelihood of conviction” phrase. It is used every day. Every police officer knows the phrase, from the earliest days on the job when they have been pursuing charges, submitting reports to the Crown, and awaiting their decisions. There is little questioning of the eventual decision, and more often than not there is no detailed rationale given.

All cases involve this process. As the more serious cases unfold; murder, extortion, or kidnapping for example, this same process is followed. The police meet with Crown but ultimately Crown decides with the ill-defined “substantial likelihood..” being the most significant criteria, and being their ultimate measure. I personally spent hours in Crown offices disagreeing with a lack of charge, arguing that the merits of the evidence warranted charges. Sometimes you were able to convince, but other times you were not. Sometimes you were wrong, and in my opinion sometimes they were wrong. I was fortunate to have a good relationship with most, and there were no ill-feelings even though sometimes these meetings would become quite heated. We would often leave frustrated, shaking our heads at the level of proof that was being demanded.

By way of example. Our team was investigating a shooting in Port Moody in the middle of the night between two groups of equally criminal gangsters. One was trying to “rip” the drugs of the other. It led to one group opening fire on the others, and a stray bullet went through a residence striking a lady who was laying on a couch watching television. The bullet entered her head through her eye. She awoke in a hospital with brain damage, with no idea how she got there. Many years later she is still recovering, but will never be the same.

The only witnesses in this case at this time of date were the gangsters themselves. There was no changing this fact.  After months of investigation we managed to turn one of the “victim” gang members to assist us. He agreed to testify even as to who was the “shooter”. This, now witness, did not want anything in exchange. No preferential treatment.

Crown refused to use his evidence, due to his lack of credibility since he was an admitted gangster. We argued in over three meetings that we met the threshold of charge approval, that they needed to put him on the stand and let the courts decide if he was credible. We lost all arguments, with the Crown wanting a credible witness which did not exist. The Crown and I remain friends and understand each others argument, but totally disagree with the not laying of charges. The “shooter” in this case went on to further criminal activities.

The problem of course is obvious. How do you define “substantial”? And because it is such a subjective measure, different Crown lawyers could  give different answers. It seemed to me that the more experienced, the more willing they were to go to trial, and therefore the more willing to have less of a hurdle for the evidence to jump over. I have had certain Crown Counsel say that on a scale they want a 90 % success rate. This is high and therefore to maintain that level, the cases that are maybe a 60 % or 70 % probability are pushed to the bottom and not chanced.

Substantial is defined partially as “having a solid basis in reality or fact”.  Pretty general one would have to say, which whether planned or not has led Crown lawyers in to an obvious way to side step the difficult cases. And of course some of the more difficult cases are the gang style killings.

BC has developed a reputation of a place where gangsters can free wheel (we have not even been successful in having the Hells Angels designated as a criminal organization), and I believe part of that blame falls on a Crown Counsel not willing to push with the more difficult cases. There is no incentive for them to do so, but they are contributing to an endangered public. A safety issue because there is a lessened fear of prosecution.

It has also created an us versus them relationship between the police and the Crown. There is an element of distrust, and in many cases now, Crown will not even make a decision without full disclosure of the entire case, in other words not trusting the police to deliver what they say is in the Crown submission. This too is causing grief and public safety issues (but that is for another blog).

The police of course will not criticize the Crown. They still have to live with them on a daily basis, as many Crown reports are forwarded and any criticism may be met with even further intransigence.

The decisions of the Crown are done without any oversight and accountability, other than by their peers in their own offices, or a possible appeal up the chain into the Attorney Generals office. And like all government offices, when the bureaucracy decides to turtle, it is more difficult to dig down through the layers, or find someone willing to buck the system. Their future promotion or judge appointment is decided by these very same people.

The American system, of politically elected District Attorneys is quite the opposite. Those elected want to make a name for themselves, they want to take on the big cases, they are less worried about losing in exchange. Now, before I go further, this is not an ideal system where political gain can be a factor in deciding charges, but it does make one pause.

Preet Bharara, the recently fired District Attorney of New York (fired by Trump which may make him a martyr rather than a villain) led over 100 prosecutions of Wall Street executives for insider trading, he reached settlements with the four biggest banks, conducted public corruption investigations into both Democratic and Republican officials, and was known for its terrorism cases that reached around the world.

Do you think such prosecution is a possibility in any Province in Canada? Is it because we have no crime here, no white collar crime or terrorism cases? Of course not, quite the opposite, Canada is developing quite a reputation for harbouring white collar crime in fact.

In Canada, we are seeing some prosecutions which they do go forward with blown completely out of the water, and criticism being directed at Crown and the police. Look no further than the Duffy case where he was acquitted of all 31 charges, and now there is a lawsuit against all involved for $8 million.

The Supreme Court of Canada Jordan decision which put a time limit on trials getting to court is putting added pressure on the Crown across the country, and causing apoplectic fits.

Apparently 30 months, once the charges are layed, and Crown has all the evidential material, and now need to get it into court, is beyond their capabilities.

The Supreme Court called the current Crown system a “culture of complacency”.  High Judge speak for a slow and dull bureaucracy, and one apparently not that interested. I don’t think anyone who has worked in any Federal or Provincial bureaucracy would be surprised by this description.

In this day and age, can we afford to have no accountability in such crucial matters. Maybe an independent oversight of Crown is necessary, we certainly don’t seem to be reluctant to have oversight of the police. Remember the police are only half of the judicial process, maybe its time to demand some answers from the other half of the equation.

Our Crown system needs to be subjected to a complete managerial overhaul.

Is Solicitor General Jody Wilson-Raybould the one to lead us out of this morass?  It seems unlikely.

She says that there is nothing gained by “appointing blame”. and really it is a problem for the Provinces. Sounds like a statement from a bureaucrat who has been rolling in the clover of a Federal system. Someone willing to accept complacency.

The Jordan problems are now beginning to surface. It was recently announced that notorious, full patch Hells Angel Larry Amero has just been released by judicial authorities in Quebec, due to the time it has taken to get him into court. He was arrested in November 2012 under Project Loquace, one of 100 arrested,  being one of the primary targets of the extensive investigation. He was released from organized crime charges and cocaine importation. You will remember him as being one of the victims of the shooting in Kelowna in 2011 where Jonathan Bacon was killed.  Of course this was because of the Jordan decision.

He will probably come back to work on the Vancouver docks where he is a card carrying longshoreman, that is if he is not too busy with his other life.

Clearly five years was not enough time for the Quebec prosecutors.

But hey, there is no sense in appointing blame.

 

Image courtesy of the_whiteness via Creative Commons with some Rights Reserved

 

 

 

 

 

An apology to my faithful but few readers

Posted on by Pete Cross

In the last few weeks there has been a lack of output from your faithful scribe, for two reasons.  The first is the inability to force myself to sit in front of a computer, which is  a human fraility, the failure to be disciplined. Instead, I have been enjoying the comforts of a warm summer; bbq’s, still and sultry nights, family members coming together, shorts and flip flops. But in my defence, I did feel a twinge of guilt.

The second reason is that about mid-August, just as I was being pulled back to the laptop, unannounced,  I was forced to undertake an investigation into the Canadian medical health care system; having being literally forced to my knees by sudden acute sciatica. A few weeks of intense pain has a way of taking away your ability to concentrate, and did not even allow me to sit in front of the afore mentioned computer. I am not looking for sympathy, just trying to justify my lack of written output.

My medical investigation so far by the way, has revealed that although better than the third world without a doubt, I have some serious questions on the costs of our system, and the eventual medical outcomes. I have concluded that you are your own best diagnostician, and the enormous monies being spent are feeding some segments but not others.  After two emergency room visits surrounded by crying babies, alcoholics, and drug addicts with their often ill-defined problems, and an ambulance ride where we discussed poor pay and our mutual dislike of firemen, I was left wondering where all the money that goes into health care. Is it really finding its way to where it is needed? But that is for another time and blog.

So now, still on crutches, and probably destined for a life style change which incorporates physiotherapy for the duration of it, I have been re-defined, and find myself in need of the succour of writing. When I first started this sometimes moving target blog I wondered if I would find enough issues which would inspire me to undertake and dedicate myself to a daily writing process.

Rest assured. That has not been the case. Quite the opposite actually as I, like you, are continuously being bombarded by “breaking news”.

There is the continual distraction of the bombastic, idiotic, and war mongering U.S. President, who can not put a grammatical sentence together. But that aside here are the few things that are of interest to me.

Hurricane Harvey in Houston happened a few weeks after BC was declaring the whole province a state of Emergency due to wildfires. Stunning photographs from Houston, while here, thousands of people evacuated under growing frustration with the process itself. Emergency planning as exercised in this Province, I think needs to be placed under a microscope. Hidden behind the “rescues” and the “hero” stories there is a need for an audit, a need for some non-emotional analysis.

In Ottawa, the Indigenous inquiry is proving to be a political disaster and at the very least, as predicted, will be an ineffectual exercise. But the Liberals push on, now making two departments in the Federal government to deal with indigenous affairs, rather than INAC.  Billions of dollars in expenditures seem to be on the horizon, apparently without a smidgen of opposition.

Also in Ottawa, Senator Mike Duffy, guilty of gouging the system legally and lacking any ethical and moral compass, he is now suing the RCMP and the Federal Government for $8 million. I suspect he is going to get a payout, due to an inferior RCMP investigation of which I have some personal knowledge, and an investigation which was wrapped in political interference.

Locally, Surrey and the surrounding areas seem to have a new drug war developing. So what else is new you ask?  Meanwhile, IHIT (Integrated Homicide and Investigation Team) at last count solving only 6 out of 36 murders this year.  I am hearing rumblings that the officers in the Unit itself, are now questioning the effectiveness of their own organization.

The daily Fentanyl news coverage has now dwindled from public view, the news agencies finally running out of variations on the theme of reporting the “crisis”.  A sense of acceptance seems to have taken hold in the general public.

The Mounties still have no Commissioner, still awaiting for a large committee of eight politicos led by ex-Premier Frank McKenna to render their decision. I wonder what that will all cost, and what direction will the new Commissioner take this organization.

And in a more comic and reflective vein, the CBC, could not make a decision on who to replace the venerable Peter Mansbridge. Instead, and I can just picture the boardroom meeting, they have chosen to not pick a singular person, but to pick four possible persons.  Why use one, when you can use four for the same job? And the genius of course, is that the four will represent the gender and ethnic groups that are now championed throughout the Federal government.

So there are just a few of the things that interest me and my wandering mind (and it may be the medication) …. I will keep you posted.

Photo courtesy of Enric Fradera via Flickr at Creative Commons 

 

Personal Story #2 – “Nick”

Posted on by Pete Cross

As I went up the dirt and tree lined driveway,  I became aware of people following on foot in the wake of the slow moving police car. It was forty-five minutes after midnight on a relatively warm August 15th, 1979, when I arrived at 282 Brown Road.

The call was to some vaguely described “fight” which had happened according to dispatch, at this rather broken down residence, and that someone had been “hurt badly” As I pulled up, with only my headlights leading the way, an eerie sense came over me, a sense of something not being right, of sides closing in, of my mind involuntarily narrowing its focus. A survival sense in some ways. A sense of being acutely alone even though there were clearly people gathering now,  watching my every move, which in itself was rather unexpected.

Parking in front of the small dwelling, I walked up the couple of steps to the front door.

I found out later that this was the well worn, dilapidated residence, of a male named Nick Dugay, but there were many other transients who often sought shelter here for all the usual homeless reasons.  As I walked the two steps up to the porch, the battered screen door was slightly ajar, and the inner, once white door, was open slightly, angling and pointing inside. I called out, but there was no answer coming from the darkened rooms. There was no electricity, no lights to turn on.

My shiny yellow plastic RCMP issued flashlight, provided a dim beam, but it was enough to show the first five feet inside.  On the floor in front of me, my beam caught what appeared to be a human form, in the middle of the room. Two open imploring eyes stared at me. It took a couple of seconds, as my brain tried to absorb what I was seeing. Focus and process. But the eyes didn’t seem human.

As my eyes  slowly adjusted to the darkness, and the dank room smell alerted my other senses, the form became more distinct.  In fact what I was staring at was not a pair of eyes, but two nostril holes, part of a mostly disappeared nose. I assumed the nostrils were still attached to a head but I could not even be certain of that because of the state of what was before me.  I forced myself to look away a bit, and take in the rest of the rummaged room. As my light struggled to light up the rest of the residence, the single bedroom residence had obvious red splatter everywhere. It was as if a child had got out of control finger painting. On the walls, with no design, in some haphazard, helter-skelter styled message. In every corner, and on all the dirty white wall space, literally every square foot, including the ceiling, had what I now realized was blood, in various stages of drying. Coagulated, blackened blood was pooled around and pointed to the ravaged body.

My eyes continually returned to the body as some sort of reflex. It looked like a scarecrow with its stuffing mostly removed, and weirdly disjointed, as if the legs and arms were trying to get away from the torso. There were marks on the floor like incisions. The head was virtually gone except for some brownish curly hair, and one arm looked like it had been dissected from the body.

As my breathing slowed, at least to a more manageable  pace, my eyes began to tell my head what to process. I spotted an axe near the door, somewhat propped up against the wall, quite distinguishable from the sparse furniture.

I made an effort to check the rest of the very bare residence, although the house was very small and it was unlikely that anyone else could have been in there. There was no sound other than my now bloodied footsteps as I walked through the spartanly furnished house.

Just as I finished checking the single bedroom, Constable Renaud Bourdages came through the only door, and the one that I had entered, making me jump slightly. He looked at me with an apprehensive and nervous smirk; taking in the scene which I stood in the middle of, and then in his heavy French accent, and resorting to the usual black humour of policing declared, to me, his captive audience, that “this ain’t no suicide!”

His presence and statement was reassuring, and now made me realize that I was there for a reason, everything was indeed real, and not some grotesque dream. I stepped over the body, and I passed the axe, and went outside to my police vehicle to radio for assistance.

So how did I get to this place, looking over this horrific scene?

I arrived in the area in February 1978 fresh from the RCMP Training Center in Regina. Leon Spinks had just gone 15 rounds and defeated Mohammed Ali; Ted Bundy had just been re-captured in Pensacola Florida; and Roman Polanski had just skipped bail and headed for France after pleading to having sex with a 13 year old girl.

I was freshly scrubbed and had been now schooled in the finer points of the RCMP.  Of course that wasn’t true, I wasn’t really prepared for anything other than maybe an ability to follow orders and maybe some cursory knowledge of theoretical law.

This is where for me, police theory as it existed back then, and the law would meet reality for the first time.

It was an impoverished area with layers of religion mixing with unemployment,  and lives revolving around the expansive Miramichi river and the bridges that went over it. A small society enveloped in poverty, and as is often the case, it had become a petrie dish for violence and crime.

Unemployment rates were broaching 20% throughout the Province of New Brunswick, but this Miramichi region was the poorest of the poor. The religious overtones created a perversive warp, which cannot be easily identified, but was palatable to those policing it.

David Adams Richards, a celebrated novelist and a former resident of the area, writes about an “underlying anger” which infuses the area.

Just outside Newcastle, sits the small village of Chatham Head, where I found myself this particular night.  A bailey bridge spanned the Miramichi river and connected Newcastle to Chatham Head. If Newcastle and the nearby town of Chatham seemed to be a simmering melange of the criminal elements, then the small community of Chatham Head which lay in between the two major town sites, would be one of the boiling points. It was termed at the time by the locals as “little Chicago”.

The use of fire to cover ones criminal tracks was common, and knives, and axes were often a weapon of choice. Of course, hunting rifles were prevalent whether in a corner of the house or in a rack at the back of a truck.

Liquor and drugs, the usual fallback panacea for the poor, were often acting as the motivation, or providing the courage to fight, or steal. It was a time when driving while impaired was not a stigma.

Fighting was a rite of passage both for the public and the police. Physical policing, unlike now, was a prerequisite, considered by some to be a necessary characteristic of any self-respecting officer. “Community Policing” had not been heard of or imagined. The Charter of Rights and Freedoms had not yet been passed.

So this was my environment, with its underlying community futility, and a distrust of the police that I faced in emerging from the house.

There was little I could do now with just the two of us, other than protecting the crime scene, stringing the usual yellow “Police” tape, and await for reinforcements. By now quite a few people had surrounded my police car, but they were not wanting to get any closer; almost as if they knew something further was going to happen. No one was saying anything, they just watched in silence. They seemed to be anticipating something, but what that was, certainly wasn’t obvious to me.

While standing there, I did find and spoke briefly with a man named Art Leblanc, who was part of the crowd, and as it turned out was the one who had directed me up the lane to the house.  Also there was Jean-Guy Savoie, who I later learned was the person who had called the police.

As I approached Jean-Guy and began speaking, he answered, but in hushed subdued tones, clearly not wanting to have the others hear what he was saying. This was not abnormal, and to be seen to be talking to the police, especially in Chatham Head could bring about some problems for you. So I had to bend down to hear him.

He said that a woman had called him asking for a flashlight.

More significantly, he went on to say that a teenager named “Robbie Cunningham” had told him that “someone” had “attacked him” and that he “hit back” and the guy was bleeding and ‘hurt”.

Now I happened to know Robbie Cunningham, even though I had only been policing the area for about a year. About a week before, Cpl Ben Walsh and I had picked him up for firing off a rifle in a Provincial Park, and we had transported him to the local jail.

Robbie Cunningham, was a petty thief, always in trouble, and had grown up hard as they used to say. He was only 18 years old.

As I scanned the crowd there stood Robbie Cunningham; trying to blend in it seemed, standing by his father Vince. Vince was a well known local character in his own right. Allegedly,  Vince would often employ his sons in the passed down tradition of thievery. One of the “godfathers” of Chatham Head so to speak.

“Come her Robbie” I said as I walked over to where he stood, on the other side of the yellow tape.

He stared at me and didn’t respond.

The crowd of people present seemed to fall silent. A group imposed hush, no doubt wanting to also hear what was being said by this young police officer. I could feel all eyes watching and following me as I approached Robbie.

Now,  Vince, normally is a very vocal supporter of his kids, and would have no problem under any circumstance telling the the local police to fuck off, and then would quickly transition into a lecture as to his rights. But Vince didn’t say anything.

“Robbie come here” I said a little more emphatically.

Robbie looked straight ahead, seeming to twitch a bit,  agitated, but still refusing to look toward me.

“Robbie come here” I said once again.

I got closer to him but this time, I reached out, grabbing his arm, and began to pull him towards me. I was expecting a possible full out fight as I steered him to the car but it never materialized. He feigned resistance as would a small child, but he came under the tape, and once back at the car got in the back seat. Vince maybe tellingly continued to remain quiet.

Once in the back of the car, Robbie seemed to feel free to talk. His speech was somewhat slurred, but not the common fuzziness brought about by alcohol.  He launched into a running monologue, of mostly indiscernible mutterings, incomprehensible statements not following any particular thought process. Our conversation, if one could call it that was not helped by the plexiglass shield which separated us. I opened the small window insert, and Robbie continued to go on, clearly only making sense to himself.  He was clearly distressed. But I furiously and dutifully wrote down what I could. But then, out of the ramblings, Robbie said something about an “axe”.  There was no mistake that he said it, it was clear and concise. And I had never mentioned an axe.

Staff Sargent Dale Swansburg, and Corporal Ben Walsh arrived, just as I was beginning to conclude that a coherent conversation with Robbie was out of the question, and I could no longer keep pace in any event with what he was saying.

Leaving Robbie in the car, I re-visited the scene (somewhat reluctantly I will admit) inside the house with Dale and Ben, pointing out what I could.

Dale was the head of my detachment, smoked a pipe, and reminded me of the stereotypical absent-minded professor. One time he had even set his paper money in his pocket on fire while walking around the office after sticking a too hot pipe into his pants. More importantly I looked up to him, and saw him as a mentor.

Years before, he was the primary investigator along with Greg Kalhoon who had solved the murder of two Moncton city police officers, a sensational and horrific case that had rattled the entire country. The two officers had been killed in front of each other and buried in shallow graves.

He was calm, unshakeable despite the carnage, and puffing on his ever present pipe as he surveyed the scene; like an architect or landscaper, quite unlike the rookie cop who was almost bouncing beside him.

He asked who I had in the back of the police car, and I told him Robbie Cunningham and that I thought he had something to do with it; describing the initial call, and Robbie’s blurting of the word “axe”. Dale asked that Ben Walsh and I take Robbie back to our office, and that we should try and get a statement from him, so at 1:20 in the morning we headed back to the office. This may not seem like much, but to have a senior officer with the reputation of Dale, allow me, a rookie cop, to continue to be involved in this way was a true signal of confidence, which I remember to this day.

Once back at the office, as I predicted, trying to take a statement from Robbie was an exercise in futility; Robbie at times falling out of his chair. The ramblings continued, and I continued my futile attempt to write down anything that I thought could prove significant. Clearly he was high, but he did not smell of alcohol or of marihuana. I booked him into the cells for the homicide of Nick Dugay, but I will admit the grounds to arrest and keep him were thin, based on a a single word, and his presence and mention by others at the house.

But the case continued to grow, as they sometimes do when the Gods are smiling down on you. Cst Bourdages who remembered that Robbie had a sister in the area, went to the house, and recovered Robbie’s bloody clothes which he had gotten rid of, inside their washing machine. The washing machine had not been turned on, and the clothes were in a pile on top of other dirty laundry.

The usual flow of statements obtained by other officers, placed Robbie at the scene, and one theory that had surfaced was that Robbie had stored stolen property at the residence which Dugay had pawned or sold, and an argument over the monies led to the one-sided “fight”. In the parlance of the day, Nick was a “wino” who would often let the various thieves in the area hide their property at his place, in exchange for the odd bottle of booze.

It was estimated that Nick probably lived for 60 seconds of this attack. That is hard to imagine.  This was my purest example of the inhumanity of man as he had in fact been struck by the axe a total of  87 times; as those were the number of axe marks that went through his flesh and into the floor boards of the residence. The cuts in the body made it appear that at some point the killer had tried to dissect the body, striking several times were the limbs joined, in an attempt to dismember it.  We also found burned out matches on parts of the body.

As the evidence rolled in, over the next few weeks, Dale continued to allow me to be the presenter of the case,  prepare the reports, while he discreetly looked over my shoulder. Typed reports with carbon copies, hammering away on the single Smith-Corona available to investigators. All the reports were eventually submitted to Crown Counsel Fred Ferguson.

There were two difficulties with the case. Identifying that the body which was found was in fact Nick Dugay; and putting Robbie at the scene of the homicide. The case was weak in terms of putting Robbie swinging the axe.

We were able to eventually prove it to be Nick Dugay because of an operating room staple that we could see on X-Rays, and then were able to compare it to an operation he had undergone years before.

As to the second more perplexing problem as to how we could put Mr Cunningham at the crime scene we learned of a “new” investigative technique, which was being explored by a Doctor Bastarache in the Toronto Metro Police Crime Lab.

He was experimenting with blood “spatter” and what it could tell you. He was doing this by scientifically measuring the results of throwing blood on walls, and on floors, walls and floors made of differing materials. Dr Bastarache, would become our final witness at our trial, and testified that Robbie Cunningham, judging from his bloody clothes, was either swinging the axe, or was leaning over the body while someone else was swinging the axe.

Robbie was convicted of 1st degree murder, but in 1981 had the case reduced to “manslaughter” due to his level of intoxication. His sentence was reduced to 12 years rather than the 25.

My first directly involved homicide was over with a successful conclusion. The thrill under these circumstances is hard to explain. It is a combination of relief, anxiety and exhilaration which I never have been able to match unless under these same circumstances. It is this adrenaline which is addictive. Although in after thoughts and the usual press scrum, investigators talk about the welfare of the family, and the ability to bring closure to the family, for me, and if others are honest, it was much more, it is visceral.

Like many homicides there are a lot of side-stories, but in the interest of brevity I will not go into a lot of them in great detail at this time.

The most significant one worthy of mention is that Robbie Cunningham, in his defence, and in a later book, blamed the murder on a fellow named Allan Legere. Legere was Cunningham’s criminal mentor, Legere’s runner or go to boy, for menial tasks and criminal assistance.

This was not an insignificant person to point the finger at.

Legere would become infamous. He was convicted of killing a store owner in Black River by beating him to death, along with a Scott Curtis in 1986. However, while serving time for murder, he escaped from Sheriffs during a transfer. He would go on a killing rampage while on the loose, starting 25 days after his escape, with killing Annie Flam of Chatham. Five months later, he would kill Donna and Linda Daughney, and then five weeks after that would kill Father James Smith of the Chatham Head church rectory.  He was re-captured after a 201 day manhunt and  became known as the  “Monster of the Miramichi”. He was one of the first persons convicted of murder through the use of DNA.

So Robbie, by having Legere as a criminal partner gained misplaced stature in the community.

Five years before the Dugay killing, Cunningham and Legere were two of the suspects in the still unsolved murder of Mary Beatrice Redmond,  murdered in 1974, after coming home from church.

The 56 year old woman was stabbed over 80 times on her porch, never making it inside. In the same neighbourhood as Dugay.

Could Legere  have had something to do with the planning or execution of Dugay? It is quite possible that he may have orchestrated the event, but there is no evidence that he was at the scene of the crime during the murder.

The defence counsel for Cunningham trial for the killing of Dugay, also well known for his tenacious and sometimes impolite cross-examination, was Frank McKenna. McKenna would go on to be the Premier of the Province, and is now head of a committee seeking to determine the best candidate for the job of RCMP Commissioner.

Dale Swansburg, retired, is alive and well in New Brunswick, and in the last few months I had a chance to speak with him once again, and remind him of his impression upon me. He is diagnosed with Multiple Sclerosis, but maintains a good spirit and is still as humble as he was some 40 years ago.

Ben Walsh, also retired,  is still going strong in Regina, but sadly lost his son to friendly fire while with the Canadian Forces. He will never be the same as the man who helped me on this case, but he too remains strong.

Cst Bourdages is still living in New Brunswick, having just recently retired, and having been a long serving member of the RCMP dive team; and he still speaks with the heavy warm French accent that I grew to truly appreciate.

I, on the other hand, after this case, had been instilled with a desire to do homicide investigations. This was my first where I could point to playing a meaningful role, and now I had the bug.

They had instilled in me confidence, made me believe that I could do the job. To see beyond the obvious, to look beneath the surface of the human condition. They showed me that there was a need to speak for the victim, as sometimes there was no one else who put any value on their life. It was a job that would take you to dark places, places where most people will never go.

They had shown me a team of people who wordlessly without direction came together; often with humour, a pride in their job, and with unbridled loyalty to their fellow officers. It was an environment of overwork, with each pulling its share without a negative word or comment, and then often helping the others without a need for applause. You needed to win at trial, there was no other option.

So, I did pursue this goal and would eventually be involved directly in over a couple of hundred homicides during my career. But, there is nothing like the first, and I always tried to mimic that unheralded crew who showed me the way.

Photo courtesy of the Author on a recent return to the area….the “new” bridge to Chatham Head from Newcastle over the Miramichi river..

 

 

 

 

 

lawyers, judges, and the need for a speed

Posted on by Pete Cross

 

In  2016 the Supreme Court threw out its previous guidelines on trial delays, and in a 5-4 decision they said that the previous rules of 1992 had created a “culture of delay and complacency”. In other words, the previous rules had given the lawyers and the judges to much leeway, allowed them to go beyond a reasonable time limit for cases to get before the courts.  So in 2016,  they are now saying that there should be a limit, and have now put in place a guideline to put a limit of 18 months for a Provincial case, and 30 months for a Supreme Court matter.

Interestingly, when the guidelines were announced, there was a hue and cry from the lawyers. Even the minority group on the Supreme Court wrote that it was “wrong in principle and unwise in practise”.  So anytime lawyers get angry or judges speak up, I tend to perk up and take note, and in this day and age, this usually means that someone has cut into someones pay cheque.

At first blush, I thought that this 18 month parameter for Provincial Court seemed reasonable as did the 30 month parameter for Supreme Court matters.  I struggled to try and remember a Provincial court matter that took me longer than 18 months to put together; nor can I remember a Supreme Court matter, such as a homicide file which took me longer than 30 months to get before the courts once a charge had been approved.  That being said I can think of a few horrendous public files that seem to be taking forever to get to some settlement; for example the Surrey 6 file will be going on 10 years before Mr Bacon sees inside a Courtroom.  Why are these long winded affairs different than the others, is there some commonality to certain cases being a marathon more than a sprint?

How many cases are actually being  constrained by these timelines, how many are in jeopardy because of this ruling?

Statistics Canada measures the length of time for trials and the types of cases which are “completed” in adult court. So here are some of the things which stand out when you delve into the numbers:

In 2014/2015 in terms of all adult cases in Canada; 49% were completed in less than four months; 42 % between four and eighteen months; 6% between eighteen and thirty months; and 3% were greater than thirty months. So of all the adult cases in Canada, there is a potential for 9% of those cases be in some sort of time jeopardy.

Now one must also remember that this is when you lump all the adult cases both Provincial and Superior Courts into one envelope. An overwhelming 99% of all adult cases in Canada are at the Provincial level.

And 77% of those 99% adult cases are “non-violent” which include such things as impaired driving, theft, breach of probation and similar type offences.

The findings of these cases show that 63% of all cases are settled by a finding of guilt, or by guilty pleas. Probation is by far the most common sentence. Only 37% of cases end in custodial sentences, and 88% of those custodial sentences,  the average sentence was 6 months or less.

In terms of how long these cases take, the average or median length of time for the vast majority of Provincial cases is 120 days or 4 months. Clearly, these cases are falling inside the time parameters that have now been outlined, however, despite this decent average, 23,850 cases in Provincial court took in excess of 18 months.

One measurement of movement of a case through the courts would be how many times there is a court appearance, how many times are counsel and accused appearing, only to have the matter set further over. On average, again according to Statistics Canada, these Provincial matters took 5 court appearances, roughly the same amount of appearances that it took 10 years ago. So not much has changed in that regard.

That being said those matters going to a Superior Court took on average 565 days and over 15 court appearances. That is about 18 months, still in reasonable time considering these cases now have a 30 month window. (Homicide cases take an average of 493 days and 19 appearances)

In reviewing these numbers, there is one item that stands out, in terms of length of trials. That is the use of the Preliminary inquiry. For those unaware, a preliminary inquiry in effect is a trial before the main trial, where the Crown is obligated there is enough evidence to go ahead. One must keep in mind that this is a court option if you have been charged with an indictable offence, or a more serious offence under the law.

In Regina vs Hynes, the preliminary inquiry was described by Justice McLachlin as : “…the preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. It’s paramount purpose is to protect the accused from a needless, indeed improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.”

What is happened over the years is that Crown to avoid being rejected for trial often errs on the side of caution,  and produces its case in its entirety. In three decades of going to Court, I never experienced a case being rejected at the Preliminary inquiry stage. Its unlikely that I was lucky, the simple matter is that few cases get rejected at this stage. As a result there are two trials of similar duration and length. Now before one says that maybe it is time to get rid of what seems to be an increasing waste of time and effort for a minimal advantage to the accused, one must realize that the Preliminary inquiry as a process is fully codified in the Criminal Code of Canada beginning at Section 535.

Is there a chance it could be amended? Yes, but keep in mind lawyers in Parliament make up the vast majority of the House, so what is the chance that they are going to cut into a segment of the law society that benefits and is able to monetize some extra court work? Like the Charter of Rights a preliminary inquiry is a costly process, but make no mistake about it, it is something that benefits lawyers.

But lets at least consider the figures for those cases involving a Preliminary hearing. There were 9179 adult cases that were completed after having gone through a preliminary; 7432 were completed in less than 30 months; however, 1747 of those cases took over 30 months.

If we total those possible files that may be in jeopardy due to the length of the cases, there is clearly a problem, with just a rudimentary examination of the stats showing that in Canada there could be 25,000 cases both at the Provincial and the Superior court level.

The damage is now beginning to come to the fore and several cases have been dismissed by the courts for not meeting the now imposed deadlines. In a recent murder case in Alberta the case against the accused was dismissed, but the case had taken five years to get to court. The accused killer walked free of the charge. Is this not as damaging to the legal system as an improperly convicted accused?

A little closer to home, as another example, the police officers charged in the Surrey 6 case with four officers facing over 20 charges has yet to go trial, and that was six years ago.

The Willy Pickton case took three years to go from the preliminary hearing to the trial itself.

All countries don’t seem to share our problem, it does seem to be part of a Canadian narrative.

For instance, in comparison, the Oklahoma bombing perpetrated by Tim McVeigh and Terry Nichols, which killed 168 people, took place in April 1995 and was the deadliest terror attack prior to the World Trade Centre. The FBI conducted 28,000 interviews, and collected close to a billion pieces of evidence. Both parties were tried and convicted in 1997, just two years after the event.

There are many other U.S. examples but suffice to say, none seem to match the turtle like pace of Canada. And yes, their laws are different than ours in some respects, but in terms of getting the case into court and tried our Canadian courts are,  as now outlined by the Supreme Court, clearly built on delay.

More judges are clearly needed. Walk through the Surrey Courts anytime, and count the number of unused courtrooms if you want to see it for yourself. At a glance it would appear that at least half the courtrooms are empty. In a busy place like Surrey or Vancouver, should we not also be thinking of an evening court?

It is obvious to those who participate in this judicial system on a regular basis that the goings on inside these hallowed buildings is askew. The roosters are guarding the henhouse; what the Supreme Court calls “complacency” is actually a system well suited to lawyers, a system which is slow but lucrative. Every police officer who has spent endless hours sitting around a courtroom, can easily testify to the length of trials, the constant delays, the constant abuse of the system which seems to only aid the lawyers, and of course the accused.

There are many well known cases that seemingly drag on for months, even years. The delays are almost invariably the justice system itself, which in essence is the lawyers and judges, and to a lesser degree the Sheriffs.  (A recent case in Victoria was thrown out because there were insufficient sheriffs to get the accused to the courtroom, which after having spent 3 decades going to court was a new one on me)

Ask anyone who has had to be a witness to a case recently, and ask them what they thought of their experience there. To a person, I am betting, they will say that they will never get involved again, as they sit there day after day, delay after delay, usually all in aid of the accused. They sit on hard benches for hours on end, often taking time off work, only to have the case dismissed; or to be told to come back another day. Meanwhile the lawyers seem to be always scurrying about with a practised harried look on their faces.

It is a system that must change. Eliminate endless court appearances, look at getting rid of the Preliminary inquiry, appoint more Judges and Sheriffs. Always keep in mind that a wronged person going to jail is a horrible outcome that must be avoided at all costs, but the accused person walking free because of simple inefficiency is equally in-excusable in this 21st century.  Lawyers undoubtedly will be in favour of more judges, but don’t expect them to be carrying the torch for remedies which impinge on their livelihood. It will be interesting to see how many cases get dismissed before someone steps in to push things forward.

Photo Courtesy of the Author

Epilogue: On Wednesday the Senate Committee on Legal and Constitutional Affairs issued a 205 page report on legal reform in light of the Jordan decision. Not surprisingly they say that the justice system is in “urgent need of reform”. They say the courts need to do a better job of managing files (you think?) and they point out after numerous interviews of judges and lawyers in the system; that it takes 5 to 10 times longer for cases to get through the system compared to the U.K. , Australia, and New Zealand. They point to the Stinchcombe decision and the need for more urgent disclosure (see previous blog) and they also say that lawyers need to shorten the number of motions etc. They also affirm the “culture of complacency”. The Liberal government, and in particular Jody Wilson-Raybould are offering up no solutions yet, and in fact they are farther behind in Judicial appointments then ever.