Ombudsman in the News

Ombudsman slams police oversight agency; Ontario’s SIU

(National Post)

(Ombudsman Ontario website)

Wednesday 01 October 2008

By: Shannon Kari

TORONTO – Civilian oversight of police in Ontario was yesterday portayed as “toothless,” “timid” and biased in practice by the provincial ombudsman.

André Marin described the Special Investigations Unit as ineffectual, and steeped in “police culture” even though it is supposed to investigate officers.

The ombudsman made 46 recommendations to improve the agency in a report entitled “Oversight Unseen,” which was released yesterday after a more than year-long probe.

“The SIU has become so timid and fearful in its watchdog role that police oversight has hit rock bottom in Ontario,” said Mr. Marin. The ombudsman, who also headed the SIU between 1995 and 1998, suggested there is a pro-police bias among staff that hampers the effectiveness of its investigations.

“There is no doubt in my mind that SIU investigators look through blue-coloured glasses,” said Mr. Marin.

The SIU, which reports to the provincial Ministry of the Attorney-General, investigates all incidents with police in Ontario that result in serious injury or death to a civilian. It is the only civilian agency in Canada with the authority to lay charges against police officers.

Rarely are charges laid. In 2006, the SIU investigated 226 incidents and laid charges against officers in two cases.

The creation of the SIU in 1990 was a “testament” to the “strength of democratic principles” in Ontario, Mr. Marin said.

Yet he suggested its operations fall far short of its goals of “one law” for police and civilians.

The recommendations included calls for the SIU to “be more rigorous and stop tolerating delays and police resistance,” Mr. Marin said.

The SIU should be more transparent and its director’s reports should be made public, Mr. Marin said.

James Cornish, the outgoing director of the SIU, declined a request for an interview yesterday. He issued a videotaped response to the report that was posted online. The SIU will give “full and careful consideration” to the ombudsman’s report, said Mr. Cornish in the statement.

The ombudsman was critical of the Ministry of the Attorney-General and suggested it has “micro-managed” the SIU, without providing the tools for it to properly carry out its mandate. “It is kept on a very short leash by the Ministry,” said Mr. Marin.

The province recently named Ian D. Scott as the new head of the SIU, just days before Mr. Marin issued his report.

Mr. Scott is the third straight director of the SIU who was a Crown attorney within the Ontario Ministry of the Attorney-General.

Toronto lawyer Julian Falconer, who has represented many families in civil actions against police, suggested that some of the blame for the SIU needs to be attributed to senior bureaucrats and he singled out Deputy Attorney-General Murray Segal (the director of the SIU reports to Mr. Segal, the report noted).

“Hiding behind the politicians are the ministry officials who have failed dramatically,” Mr. Falconer said.

The lawyer held up a photo of a bloodied and bruised Hafeez Mohammed, who Mr. Falconer said was beaten by Durham Region police during an impaired-driving traffic stop in 2006.

Police contacted the SIU and said there was no serious injury that warranted investigation.

The ombudsman’s report noted that Mr. Mohammed was taken to hospital suffering from broken bones in his face. He ended up spending 42 days in hospital. The SIU ultimately found that police used reasonable force.

“What they did to me was wrong,” said Mr. Mohammed at a news conference yesterday.

Rob Maltar, whose 45-year-old brother was shot dead in custody in September, 2005 after a struggle with officers in Port Credit, said “it was like winning the [Lotto] 6/49 in reverse” when the SIU told him that there would be no charges against police.

Mr. Maltar said the director of the SIU refused to meet with his brother’s family and they received a heavily edited report of the agency’s investigation.

Ontario Attorney-General Chris Bentley stressed that there was no finding of wrongdoing by the SIU in any specific case, in the ombudsman’s report. He explained that while the SIU reports to his ministry, its operational decisions are made independently.

The province announced various measures in response to the report, including $700,000 to hire more staff and a promise to “lead a discussion with justice sector partners,” was made by Mr. Bentley.

The decision to hire Mr. Scott by the Attorney-General was made after a nationwide search Mr. Bentley said. He described Mr. Scott as the best candidate to lead the SIU. “He will make the tough decisions,” Mr. Bentley said.

SIU AT A GLANCE – The SIU, which reports to the provincial Ministry of the Attorney-General, investigates all incidents with police in Ontario that result in serious injury or death to a civilian. – It is the only civilian agency in Canada with the authority to lay charges against police officers. – In 2006, the SIU investigated 226 incidents and laid charges against officers in two cases.

Ontario judge orders author to relinquish Bernardo files:

Writer charged over posting of data on Web site must give Crown material he received about notorious murder case

Globe and Mail

06 May 2003

By KIRK MAKIN, JUSTICE REPORTER

An Ontario judge has ordered the author of books about Paul Bernardo and Karla Homolka to hand over tens of thousands of pages of sensitive material to the Crown after a secret hearing.

Author Stephen Williams, who was charged Sunday with violating a publication ban by posting allegedly illegal information on his Web site, said his lawyers are scrambling to overturn the order before it takes effect on Friday.

“It means to me that I’m going to be forced to give up everything I spent 10 years accumulating,” Mr. Williams said in an interview after his release from jail yesterday. “The time frame they have given us is tremendously short.”

The material includes hundreds of transcripts, interviews with witnesses, and videotapes that depict Mr. Bernardo and Ms. Homolka doing everything from touring their home to engaging in bizarre sex practices.

“What they are trying to do is get it all back,” Mr. Williams said. “And once they do, we’ll never get it again. The bulk of this material is not in contravention of any publication order and I’m not in possession of it illegally.”

Mr. Williams was released on $25,000 bail yesterday in connection with two charges of violating a publication ban. The Crown alleges that he disclosed the identities of some “complainants and victims” in the Bernardo-Homolka case — probably some of the victims of Mr. Bernardo’s so-called Scarborough rapes.

The material comes from a Crown disclosure package prepared prior to Mr. Bernardo’s trial for the murders of schoolgirls Kristen French and Leslie Mahaffy.

Mr. Williams said the Crown seems determined to ferret out the identity of the person who gave him the disclosure package.

“I would never give up a source,” Mr. Williams said.

“If it ever came to that, I think if you give somebody your word, you have to die by it.”

As he was kept in the dark about the proceeding on the weekend, Mr. Williams had no lawyers on hand to challenge Crown arguments that he hand over the material.

The series of events began last Tuesday, when Mr. Williams told The Globe and Mail of his plan to post most of the material on his Web site. Within hours of him starting to do so, police spotted the names they say cannot be published.

The 53-year-old man was arrested at his rural Ontario farm on Sunday morning and held in jail overnight. Mr. Williams, who has claustrophobia and high blood pressure, said medics were called when he began hyperventilating.

His lawyer, Edward Greenspan, was highly critical of the police and Crown yesterday for arresting a writer and keeping him in jail unnecessarily. He said Mr. Williams would have voluntarily surrendered himself to the police.

“This happens in totalitarian countries, but it shouldn’t happen in Canada,” Mr. Greenspan said.

He also questioned the fact that prosecutor Michal Fairburn conducted yesterday’s bail hearing despite having been depicted “in a light she cannot have enjoyed” in Mr. Williams’s book, Invisible Darkness .

The book told of how Murray Segal, director of the criminal branch of Ontario’s Crown Law Office, left his wife and three children during the Bernardo case to live with Ms. Fairburn.

“I would have thought that Crown would not be involved in this case,” Mr. Greenspan remarked.

Asked about the issue yesterday, Ms. Fairburn said: “No comment. It’s before the courts.”

Several years ago, Mr. Williams was charged with a similar offence in connection with banned videotapes of the murder victims. After almost 18 months of pretrial skirmishing, the Crown withdrew the charge. The Crown made a successful attempt to force him to reveal his sources in that case as well. However, it never went so far as to get an order to seize his files.

Mr. Williams said yesterday that he and Mr. Greenspan still don’t know what he posted on his Web site last week that was illegal.

“I find the whole process alarming, astonishing; unacceptable in a democracy,” Mr. Greenspan said. “You would expect this in Iran. I think the Attorney-General of this province has a lot of explaining to do. I think it has to do with the fact that he wrote a book critical of the police and critical of the Crown,” he said.

“This is a free country. If you want to set up a Web site, you can set up a Web site.”

© 2003 Bell Globemedia Interactive Inc. All Rights Reserved.

The Senate

Tuesday, 19 March 1996

Criminal Code

BILL TO AMEND—SECOND READING—DEBATE ADJOURNED

Hon. Anne C. Cools moved second reading of Bill S-3, to amend the Criminal Code (plea bargaining).

She said:

Honourable senators, I rise to speak to my motion for second reading of Bill S-3, to amend the plea bargaining provisions of the Criminal Code and thereby asking the Senate to take conclusive action to excise a legal and political malignancy which has grown in our midst. My Bill S-3 is necessary because Canadians are shocked at the depravity and brutality of the brutal sexual slayings of three teen-age girls by Karla Homolka and her husband Paul Bernardo, and because Homolka’s prison sentence is inadequate to her crimes, and finally because her sentence and her secret trial and her secret plea bargain deals with the Crown prosecutors have created moral and political doubts in the public’s mind. Most importantly, these doubts and uncertainties have resulted in a crisis of confidence in the administration of criminal justice in Canada. This Senate action will restore stability and public confidence. The object of Bill S-3 is the dismantling of the Homolka plea bargain deal and the imposition of a more representative sentence that fits her crimes. In forming the Homolka plea bargain agreement, prosecutorial discretion was exercised by Crown prosecutors in a flawed manner and founded on unsound ground. Simply put, the prosecutors chose to favour Homolka over Bernardo, for reasons which I shall show.

This plea bargain agreement and any plea bargain agreement is not a contract in the ordinary sense. It is not a contract in law, the breach of which could result in a civil suit for damages. It is unclear whether this or any plea bargain agreement is a contract at all. The force behind this agreement is not the law of contract but the honour of the Crown. No judge is bound by such agreements. The question before Parliament is whether such an agreement and its protection and its benefits to Homolka is a valid agreement in law and whether such agreement should continue to receive the force of law and the support and honour of the sovereign.

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The plea bargaining process is new to the administration of criminal justice in Canada. Such agreements are at the discretion of the Crown prosecutor, and their development largely follows no formal procedure. This informal process needs some light shed on it. Parliament should investigate.

Plea bargain negotiations contain the potential for collision between judicial independence and prosecutorial discretion, and an enormous collision between Parliament and the courts. Consideration of Bill S-3 will inform Parliament on the state of this process, its workings and results, and even the proportion of these agreements that miscarry or misfire.

The Homolka deal is a terrible mischief. This deal and its consequences are unconscionable and intolerable, and must be amended by statute. I propose, honourable senators, that we the Senate correct this terrible public mischief that has been visited upon the people of Canada; that we correct this very public and obvious miscarriage of justice. We must pass this law redressing this menace and insult offered to the families of these girls, to the people and to the Crown of Canada.

Honourable senators, there were two Homolka deals: The first deal was fixed in May of 1993, the second in May of 1995, two years apart. The first Homolka deal was negotiated and consented to by Murray Segal, Director of the Crown’s criminal law office, on behalf of then Ontario Attorney General, the Honourable Marion Boyd. It received judicial action and approval by Mr. Justice Francis Kovacs of the Ontario Court General Division on July 6, 1993, in the short, speedy trial of Homolka. The trial lasted mere minutes. The deal was weighted heavily in Homolka’s favour and was strictly adhered to by Mr. Justice Kovacs. The joint submission of both the Crown and defence counsel, and Mr. Justice Kovacs’ reasons on sentencing, laid bare the horror of this case and the Ontario Attorney General’s handling of it.

Mr. Justice Kovacs’ adjudication and ruling complied with the intent of the prosecution’s deal and its forgiveness of Homolka. As an experienced justice of the Ontario court, Mr. Justice Kovacs’ judgments and judicial action are enigmatic. His adjudication had the effect of largely exonerating Homolka, exempting her from punishment. Judicial action shielded her and insulated her from the penalty suited to her crimes.

Mr. Justice Kovacs deferred to prosecutorial discretion, which deployed the concept of the battered woman’s syndrome to diminish Homolka’s culpability. Honourable senators should understand that this is unusual, because the battered woman’s syndrome is frequently offered as a defence, never by the prosecution; very unusual.

Parliament must uphold two fundamental principles of sentencing: The first principle is the specific deterrence of the accused, namely that the length of a sentence must prevent the individual from committing another crime. The second is the protection of society in that the sentence must be sufficiently long to protect society from danger from the accused. Moreover, sentence length reflects society’s abhorrence of the crime.

In sentencing Homolka, Mr. Justice Kovacs acknowledged this principle. He said:

I keenly appreciate the community must be satisfied the sentence reflects the necessity for the protection and safety of the community. … I understand the righteous outrage which the community feels, and properly so.

Remember that this is 1993.

Having declared these principles, Mr. Justice Kovacs immediately abandoned them, in deference to certain other considerations, saying:

It is the Court’s responsibility to be objective and to consider the very special circumstances of this case and this accused. There are serious unsolved crimes, here… There can be no room for error in the successful prosecution of the offender… Clearly, Homolka is not the offender.

The prosecution of Paul Bernardo, the offender, was a mitigating factor for Mr. Justice Kovacs.

Honourable senators, a judge’s role is the adjudication of the person charged and the application of the principles of sentencing to the charges in the case. His primary concern is the case at bar and not other “circumstances.” In addition, the independence of the judiciary was questioned as Mr. Justice Kovacs allowed his judicial discretion to be fettered by prosecutorial deference and prosecutorial discretion. He deferred. This encumbrance on his judicial obligation is made clear in the submissions of Mr. Murray Segal, the Crown prosecutor during the Homolka trial, who said that:

… the Crown is satisfied that Karla Bernardo had the necessary intent and involvement to found murder charges,… but as a matter of prosecutorial discretion, you have before you manslaughter charges…

Honourable senators, there was not one Homolka deal but two. At the time Mr. Justice Kovacs adjudicated the trial of Homolka, there was one. During the trial of Paul Bernardo, Homolka’s true involvement and culpability were revealed, and her true role in these terrible offences was made manifest to all Canadians.

Canadians must know the extent of the Honourable Marion Boyd’s personal role and interventions in this affair. Ms. Homolka was exceptionally well treated by the Attorney General’s office, which treatment is curious and troubling. The first deal, made in 1993, granted Homolka immunity from certain prosecutions, fixed a lenient sentence, and forgave certain offences, including culpability in the death of her own sister, Tammy.

Though she was never charged with this killing, an extremely unusual procedure happened that day in court. Her court hearing documents her culpability, thereby precluding charges from ever being laid. All the circumstances of her culpability in her sister’s death were read into the record.

The second deal, two years later in May of 1995, granted additional immunity for other crimes, and forgave other offences undisclosed in the first plea bargain.

A disturbing fact is that Bernardo’s lawyer, Ken Murray, acquired and secretly kept certain video tapes, critical evidence in the prosecution’s case, and failed to give them over to the police. Consideration of this bill will allow us to cross-examine Mr. Murray. His activities are no internal matter reserved exclusively to the preserve of the legal profession and the law society. This is a matter for Parliament. Parliament should decide a fitting penalty for such activity by an officer of the court.

In The Toronto Sun newspaper on October 10, 1995, Christie Blatchford, regarding Crown attorney Jim Treleaven’s memo dated May 26, 1995, reported that:

“Had Murray turned the tapes over to police as he, as a lawyer, was obliged to do,” Treleaven wrote, ongoing plea bargain talks with Walker likely “would have ceased”… Prosecutor Treleaven’s statements are belied by the fact that the Crown prosecutor made the second deal in May, 1995, four days before Bernardo’s trial and Homolka’s testimony for the Crown in that trial. Coincidentally, that took place minutes before a provincial election as well. Everyone has forgotten that. The Crown made this second deal to shield her from prosecution for other undisclosed criminal acts perpetrated against Jane Doe, another teenager.

This second deal is even more suspicious. Christie Blatchford in The Toronto Sun tells us why on October 10, 1995, saying:

Four of Ontario’s highest-ranking law officials unanimously agreed that there was “a proper basis in law” for charging Karla Homolka with aggravated sexual assault in the “extremely grievous” attack on a young woman who can be identified only as Jane Doe…

Blatchford continued: …

despite the fact there was evidence to charge the 25-year-old, now serving the 12-year sentence that is the result of her original plea bargain, the senior officials advised the police not to bother. … when one of them, Niagara Regional Police Chief Grant Waddell, indicated he was prepared to lay a charge regardless of the high-powered advice, … he was told the government would “stay” the charge – in effect refuse to prosecute it.

Blatchford also reported that, in Treleaven’s memo addressed to Inspector Vince Bevan and Detective-Sergeant Tony Warr, Treleaven made it clear that:

… he was writing on behalf of Assistant Deputy Attorney General Michael Code and his two fellow regional Crowns, Leo McGuigan and Jerry Wiley, and that he had assistance from Murray Segal, … and George Walker, Homolka’s lawyer.

The secret document shines some light on the way government officials were thinking of Homolka, shows that she and her lawyer were still playing hardball last May, and provides the first solid evidence that the Jane Doe decision came out of myriad concerns – some political, some practical, and most having little to do either with the law or the strength of the case against Homolka.

Blatchford suggests that the second agreement was a second miscarriage of justice, executed to sanitize and justify the first, therein to protect their political position.

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Homolka’s trial before Mr. Justice Kovacs was riddled with extraordinary circumstances and statements that reveal the special treatment accorded Karla Homolka. Crown prosecutor Murray Segal, in his submissions on sentencing, articulated the Crown’s position:

The Crown’s assessment, based on a review of such psychiatric evidence, is that absent the influence and association of someone whose behaviour bears the characteristics of what truly may be one of this province’s and the country’s most feared individuals, she is unlikely to re-offend.

In his submission, Karla Homolka’s lawyer, Mr. George Walker, mirrored Segal and stated:

Now, she’s going to be placed in a penitentiary setting. She is going to have some difficulties, that’s obvious. Twelve years is not an insignificant period of time, given the fact that she’s 23. She’s certainly not street wise nor is she institution wise.

A characteristic of this case has been the intelligence and brain power that these people employed to escape detection. Yet, here we are in a court of justice, with people telling us she is not street wise.

Mr. Justice Kovacs, in his reasons on sentencing, reveals his thinking. He was very careful in what he said. If you read the judgment, you will see that every single word that came out of the judge’s mouth was very careful. He said:

I have read carefully the reports of:

(a) Dr. A. I. Malcolm, a psychiatrist, dated May 28, 1993.

(b) Dr. H.J. Arndt, a psychiatrist, dated May 30, 1993.

(c) Dr. J.A. Long, a clinical psychologist, dated June 3, 1993, in respect to the accused.

Mr. Justice Kovacs read from these reports into the record:

Dr. Malcolm’s opinion is…at page 7: “Now my opinion is that Karla is not a dangerous person.” …and at page 4, he said, “I had no doubt that Karla was a passive, non-violent person…”

And:

Dr. Arndt, in saying that she is not a danger to society, said in his report as well: … “I do not see her as being a danger now or ever again to society,…”

Further:

Dr. Long, after administering numerous psychological tests on the accused, said at page 10 in his report: “… she is not a danger to herself nor to anyone else…”

You should read this transcript. It is exceptional.

Mr. Justice Kovacs relied on the unanimity of these three doctors’ opinions that Karla Homolka was not a dangerous person. Yet, in his comments on the aggravating factors, he admitted to the conduct of the accused, saying:

It was not isolated conduct. The acts leading to the abduction of Kristen French were coldly and calculatingly planned, with full participation of the accused. … The facts leading to the death of her own sister indicated planning on her part. The accused obtained the anaesthetic which was used to keep the victim unconscious…

He also stated:

The careful attempt to cover up the circumstances of the death of Tammy Homolka and the meticulous and planned attempts by the accused to eliminate evidence of the deaths of Leslie Mahaffy and Kristen French…. It goes to the consciousness of evil thought processes of the accused.

Of course, we must wonder why three girls are dead if Homolka was not dangerous. Despite the horrendous crimes requiring his judicial scrutiny, Mr. Justice Kovacs deferred to prosecutorial discretion. Simply put, the Crown prosecutors favoured Homolka over Bernardo because she was a woman, and such seemed politically appropriate in the political atmosphere of May 1993.

Mr. Justice Kovacs declined to use his powers to delay Homolka’s parole, saying: I make no order under s. 741.2 of the Code for an increase in the time of a parole ineligibility. I make no such order because the length of sentence is the most important factor in the Crown’s submission, and I agree. … I do not wish to hamper the treatment of the accused by imposing a period of ineligibility for parole.

The prosecutors’ position in shielding Homolka from responsibility and punishment for these heinous crimes because of gender and the prosecution’s advancement of the claim of Homolka’s “battered woman’s syndrome” was diabolical. During the Bernardo trial in 1995, Mr. Justice Patrick LeSage, unlike Mr. Justice Kovacs in 1993, resisted this characterization.

Honourable senators, the Senate should know why the Crown made these assertions of battered woman’s syndrome in this nefarious case of this notorious and obvious multiple murderer. It is perplexing that the Ontario Attorney General’s office and its experienced Crown prosecutors have been participants in this deceit. Homolka’s deceit is a stark example of a peculiar female criminal aggression conjoint with deadly craftiness and deception.

Honourable senators, experienced Crown prosecutors and criminal justice officials are informed that the deceit and the manipulation by certain particular female aggressors upon the judicial system is quite common and very well known to those of us who have worked in the system. I shall cite two cases briefly.

The first case is the Charles Manson case. Linda Kasabian, a former girlfriend of Charles Manson, whose idea it was to commit the Sharon Tate murders, escaped trial because she agreed to testify against Manson and the other defendants. Consequently, she enjoyed immunity from prosecution.

The second case is the infamous and horrible Moors murder case in England. Myra Hindley and her boyfriend raped and killed five children. Before they murdered a 10-year old girl, they took pornographic photographs of this poor child and made tape recordings of her screams for mercy. One writer, a brilliant writer whom I recommend, Alix Kirsta, in her book, Deadlier Than the Male, described Myra Hindley as an “archdemon” saying that: …she remains… a salutary reminder of corrupt femininity…

Writers Christie Blatchford of the Toronto Sun and Patricia Pearson of The Globe and Mail have exposed Homolka’s successful deceits. They have probed the peculiar aggression and deception of the Homolka type of offender. In August 1993, Pearson wrote in an article entitled, “How Women Can Get Away With Murder”:

According to studies done in both England and the United States, women who commit violent crimes receive lighter sentences than their male counterparts.

And:

Females who kill in league with male partners are often seen as “nice girls” who were forced into it. That’s why their sentences are lighter.

She quoted Candice Skrapec, a scholar in the field of serial homicide, who said:

I believe…that many homicide cases remain unsolved… because the offender was falsely assumed to be male.

Patricia Pearson was prophetic about Homolka when she said in August 1993:

The issue has come to the fore again with the manslaughter conviction of Karla Homolka in the killings of Ontario teen-agers … Whether Ms Homolka is one of these “nice girls” remains an open question.

Honourable senators, our committee must hear from both Blatchford and Pearson. Honourable senators, the two Homolka deals, the Attorney General’s alleged interference with police, the activities of the Crown prosecutors and the judicial compliance of Mr. Justice Kovacs, the fact of the coalescence of these errors, oversights, deceits, in combination with the public’s sense of abandonment are sufficient and compelling reasons for parliamentary action. Clearly, the Crown, counsel and the judiciary have failed. I ask honourable senators to support this initiative and to pass Bill S-3.

On motion of Senator Graham, for Senator Wood, debate adjourned.

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