The Missing Women Commission of Inquiry has issued Practice Management Directive No. 5, setting a schedule for the next (and last) few weeks of hearings.  In doing so, it has refused to hear from many of the witnesses our clients, the families of 25 murdered women, requested over four months ago.  The Commission is refusing to hear evidence from Ross Caldwell, Lynn Ellingsen, David Pickton, Brian Oger, Bev Hyacinthe, Peter Ritchie, Peder Gulbransen, VPD members Darcy Sarra, Brian Honeybourne, Gord Spencer, Phil Little and RCMP members Dave Strachan, Nathan Wells and Robert Paulson.  The Commission has also inexplicably dropped RCMP Sgt Daryl Pollock from its own witness list.

However, the Commission has added some new witnesses, apparently at the behest of the VPD and RCMP.  They are Dorothy McKee, Frank Henley, Doug Fell, Mark Wolthers, Kenny Holmberg and Jim McKnight.

Excerpts from our written submission for additional witnesses, dated December 23, 2011, are set out below:

…..

PROPOSED ADDITIONS TO THE WITNESS LIST

 WRITTEN SUBMISSIONS

 Submitted to Commission Counsel December 23, 2011

These submissions are made on behalf of the families of Dianne Rock, Georgina Papin, Marnie Frey, Cynthia Dawn Feliks, Cara Ellis, Mona Wilson, Helen May Hallmark, Dawn Crey, Angela Hazel Williams, Jacqueline Murdock, Brenda Wolfe, Andrea Joesbury, Elsie Sebastian, Heather Bottomley, Andrea Borhaven, Tiffany Drew, Angela Jardine, Stephanie Lane, Tanya Holyk, Olivia Williams, Debra Jones, Janet Henry, Maria Laura Laliberte, Serena Abotsway, and Diana Melnick (the “Families”), many of which have lobbied for more than a decade to have the opportunity to participate in this Commission of Inquiry. These submissions are made in response to the request of Commissioner Oppal following the hearing on December 14, 2011, on the understanding that they will assist Commission Counsel with the task of generating a formal “witness list” for the balance of this Inquiry.

 This Inquiry, like others before it, was established by government to exemplify the essential features of public inquiries identified by Prof. Ratushny: independence; effectiveness; a mandate; investigative powers that enable it to follow the evidence where it may lead and transparency or openness.

            Ratushny, The Conduct of Public Inquiries, Irwin Law, 2009, pp. 16-20

The Families submit they are entitled to a thorough public inquiry that will strive to provide them with a meaningful answer to the following critical question: how was it that over a five year period, scores of women disappeared within a few blocks of the VPD headquarters and were murdered within a few kilometers of the Coquitlam RCMP detachment, without the police detecting and stopping the crimes?

It is clear that illegal activities on the Pickton brothers’ properties came to the attention of the RCMP in 1996, when the City took legal action to attempt to shut Piggy’s Palace, and that over the next five years more information came to them that should have prompted more significant action on their part. The decision to stay serious charges against Willy Pickton after his near fatal attack on Anderson on March 23, 1997 was a significant event, significant enough to form the basis of one of the terms of reference for this Inquiry. From the families’ perspective, the criminal justice system failed to work as it should have, enabling Pickton to continue murdering women for nearly five more years, even as the police received credible information that he was responsible for more crimes. How could this happen?

We submit that the Commission was convened to answer this important question and that it has an obligation to investigate these matters independently and openly, following the evidence wherever it might lead.

Commission Counsel has prepared a witness list that we feel is incomplete. Our analysis and these submissions are based on a review of the records that have been made available to date. We accept that, as the hearing unfolds, the attendance of some of the witnesses on the Commission Counsel’s current list may become unnecessary and that more people may surface as having material evidence to offer.

We accept that most, but not all, of the key police officers from both the Vancouver Police Department and the Coquitlam RCMP have been included on Commission Counsel’s current witness list, and agree that, at least from our current vantage point, this Commission should hear from all of the witnesses on that list.

The witnesses we hereby propose should be added to the list are primarily non-police witnesses, whose evidence may complement or contradict the anticipated evidence from police witnesses. We submit that if this Commission is to properly achieve its mandate it must hear all sides of the “story”, not merely the police version. As any criminal lawyer or judge would be aware, there is often a substantial difference between police and civilian accounts of an event. It would be extremely presumptuous, and probably inaccurate, to make findings of fact concerning any transaction between police and civilians without hearing the civilians’ version of the event.

On December 6, 2011 we delivered a Schedule to all counsel including the names of our proposed additions to the witness list. The following is a slightly revised version of a current list of witnesses we propose to be added to Commission Counsel’s list, with our submissions supporting these additions.

ROSS CALDWELL

Mr. Caldwell was reportedly the second person to provide significant information to police about Pickton. In mid-July, 1999, Mr. Caldwell provided information to Det. Cst. Chernoff of the VPD that Lynn Ellingson had told him that she had been witness to Pickton hanging a women in the barn on the Picktons’ property and stripping flesh off her legs. Further, Pickton had told Mr. Caldwell personally that he could dispose of a body “without a trace” if needed.

At the end of July, 1999, Caldwell told Chernoff and Lepine that he had observed handcuffs and a semi-automatic rifle in Pickton’s trailer and a “special” freezer in Pickton’s barn, from which he had been served a strange meat he came to believe was human. He further advised that Pickton had regular cock fighting events in the barn. This information became the catalyst for an in-depth investigation into Pickton.

In early August, 1999, Mr. Caldwell advised Chernoff and Lepine that Ellingson was extorting Pickton by threatening to go to police with her information. Caldwell apparently agreed to be an “agent” for police to further the investigation.

On August 5, 1999, Mr. Caldwell was brought into the Coquitlam detachment for an interview. The interview did not go well, allegedly because of Mr. Caldwell’s “lack of sleep and substance abuse”, as noted in DC LePard’s report [p. 26].

DC Evans writes in her report that August, 1999 was a “critical time for both the VPD and Coquitlam RCMP. The investigation did not proceed because investigators could not corroborate what Mr. Caldwell was saying to the satisfaction of all…” [p. 8-4].

Ultimately, Corporal Henley and Det. Ballantyne of the Provincial Unsolved Homicide Unit and members the VPD’s Major Crime Section negatively assessed Caldwell’s credibility, effectively derailing the missing women investigation [LePard p. 41].

 DC LePard writes: “Detective Constable Mark Chernoff and Detective Ron Lepine demonstrated great skill and dedication in their work with informant Caldwell.”

 We will be hearing the evidence of Det. Cst. Chernoff, and possibly Det. Lepine; and we submit that Mr. Caldwell should be called as a witness to give his version of events during the early stages of the missing women investigation.

 LYNN ELLINGSEN

 Ms. Ellingsen lived on Pickton’s property in 1999 and was witness to the incident involving a woman hanging in Pickton’s barn. She would eventually become the source of the information provided to police by informants Caldwell, Best, and Menard.

 RCMP Corp. Henley and VPD Det. Ballentyne interviewed Ms. Ellingsen for the first time on August 10, 1999, and accepted her denial of the information brought to police by the informants, and concluded that the informants must have been lying. In his report, DC LePard writes that Ms. Ellingsen’s denial was “utterly lacking in credibility – she did not simply deny seeing the body, but denied telling anyone the story of seeing the body, and this flew in the face of direct evidence from three witnesses.” [p. 26]

On August 26, 1999 Det. Lepine and Cst. Yurkiw attempted a second interview of Ellingsen. DC Evans writes: “Henley and Ballentyne did not give the investigation or the interview of Ellingsen the time and effort that it required” [p. 8-23]. The interview lasted only 12 minutes.

On August 31, 1999 Ms. Ellingsen failed to show up for a polygraph test. DC Evans concludes that more should have been done in response to her failure to show up. [p. 8-30]

Ellingsen would later become a key witness at Pickton’s murder trial.

DAVID PICKTON

David Pickton lived at 953 Dominion Ave. with his brother Willy throughout the entire time period defined by the terms of reference. He was well known to police, and was considered a person of interest during the missing women investigations. He co-owned the Picktons’ properties on Dominion Ave. and Burns Rd. which were known by the police to be hives of illegal activity, including cockfighting, illicit alcohol and drug use, prostitution and petty theft.

Willy Pickton apparently deferred to his brother on their dealings with the police. For example, it was David Pickton who persuaded investigators to wait until the rainy season before conducting interviews.

On October 22, 2001, Dave Pickton apparently spoke with police who attended Robert Pickton’s trailer following a 9-1-1 hangup. Few details are known about this incident [Nancy Plasman interview].

Despite all this unlawful activity at the Picktons’ properties,  and despite the RCMP’s frequent attendances at there, possibly as many as 49 murders were perpetrated. Women’s remains and DNA were found on land that David Pickton occupied with his brother. The families believe David Pickton could shed a great deal of light on the questions that are central to this Commission’s mandate and terms of reference. A proper inquiry must include testimony from this central character, to answer these questions.

 Pickton should be able to assist this Commission if compelled to answer the following questions:

1. When, where, and how many times was he interviewed by police?
2. What dealings did he have with members of the RCMP and who were they?
3. What was the nature of his and his brother’s relationship with Bev Hyacinthe, the civilian employee who worked at the RCMP’s Coquitlam detachment?
4. What did he know about the women’s murders and the disposal of their remains on his property?
5. If he knew that as many as 49 women’s bodies were being disposed of on property he owned, did he report that to the police?
6. Was he aware, and if so, when did he first become aware that the police were conducting surveillance on the Pickton property?
7. What does he recall about the RCMP search of the Pickton property and its investigation following the Anderson incident in 1997?
8. What does he know about the decision to stay his brother’s charges?
9. What does he recall about the police attendance at the farm on October 22, 2001, following the 9-1-1 hangup?
10. What does he recall about the conversation with RCMP Cst. Yurkiw on September 22, 1999, in which he allegedly told police to come back in the rainy season?
11. Did off duty police officers, politicians or other high-profile members of the community attend events at the infamous Piggy’s Palace?

 We submit that David Pickton is certainly a necessary witness and that the Commission must obtain his sworn answers to these and other questions if it is to comply with its mandate.

BRIAN OGER

Brian Oger was a civilian employee with Project Evenhanded during the relevant time period. During the course of his assigned work in data entry, Mr. Oger made insightful observations about the ongoing missing women investigations. He was sufficiently troubled by what he observed that he was stimulated to write a 15-page report entitled “The Serial Killer Theory: A Report on the Downtown East-side Missing Prostitutes”, while still employed with Project Evenhanded.

While his report was written for the purpose of internal discussion, it made its way up the chain of command faster than anticipated, and Oger soon became the subject of reprimand and criticism by some members of both police departments.

In his essay, Oger questioned the strategy underlying the ongoing missing women investigations, and tried to raise awareness about the continued disappearences of women, and the possibility of a serial killer.

While Deputy Chief LePard makes almost no mention of Oger’s essay in his report, DC Jennifer Evans describes Oger’s essay as “one of the most compelling documents reviewed” in the course of her work for this Commission [page 8-35].

Mr. Oger has provided us with an insightful review of the missing women investigations at an instant in time and from his unique perspective. His motives to write this report, and the response he got to his report, ought to be heard by this Commission. His report offers a unique perspective on the conduct of the missing women investigations from a non-police “insider”, and must be properly before this Commission.

BEV HYACINTHE

Bev Hyacinthe was a civilian employee at the Coquitlam RCMP Detachment during the terms of reference. She was employed as a telecoms operator.

Ms. Hyacinthe knew the Picktons personally and provided information to Mike Connor in September, 1998 and August, 1999 that assisted in the missing women investigations, including information about the character of Lisa Yelds, and the cock fighting that took place on the farm.

Ms. Hyacinthe apparently told Connor that Pickton was aware the police were conducting surveillance on him. Evans notes in her report at p. 8-97 that Connor forgot to include this piece of information in his Continuation Report.

On February 1, 2002 – just days before Pickton’s arrest – Ms. Hyacinthe was interviewed by Bill Fordy. She provided him with significant information about the Picktons. In her interview she mentions that her son had found bloody clothing in Willy Pickton’s truck.

After Pickton’s arrest in 2002, Ms. Hyacinthe told investigators that she had seen Pickton hanging around with Dawn Crey at Piggy’s Palace at a New Years Eve party in 1999. Apparently she read in the paper a couple of weeks later that Dawn Crey had been reported missing.

Ms. Hyancinthe ought to be called to this Inquiry to answer the following questions, among others:

1. What more did she know about the Picktons that would have assisted the missing women investigations?
2. How much more information did she provide to the RCMP about the Picktons’ activities?
3. What does she know about why the RCMP did not follow up on their investigative leads before February 4, 2002?
4. Did she report her sighting of of Dawn Crey on New Years Eve, 1999, to investigators, and if not, why not?
5. Did police ever discuss with her the possibility of her becoming a police agent?

PETER RITCHIE

After the March 23, 1997 incident, Willy Pickton first retained Crossin & Scouten, the law firm that was acting for him and his siblings in the civil litigation surrounding Piggy’s Palace. About a week later, he hired lawyer Peter Ritchie, who attended  with his client when he was booked and fingerprinted. In January, 1998, the Crown stayed all five serious charges against Pickton. The Crown file was subsequently destroyed.

Mr. Ritchie may have been involved in the decision to stay the charges and would have communicated with the Crown about the decision. Any communications between Mr. Ritchie and the Crown would not be privileged and would likely be recorded on Mr. Ritchie’s file, if it exists. Mr. Ritchie was obliged to retain the file for at least six years, meaning it would have been in his possession when his client was arrested for murder in 2002.

It is respectfully submitted that the Commission must hear from both sides involved in the file if it is to discharge its fact-finding obligation with respect to the stay decision.

PEDER GULBRANSEN

In August, 1999, Mr. Gulbransen was the Crown Counsel assigned to the Pickton investigation. Around that time, Mr. Gulbransen advised Cpl. Connor that he would require a warrant in order to conduct video/electronic surveillance of Pickton’s property. No warrants were obtained.

In 2002, Mr. Gulbransen was involved in advising Cpl. Conner with respect to the search warrant for Pickton’s trailer.

It is submitted that Crown Counsel’s handling of the RCMP’ requests for a warrant is an integral part of the factual matrix. It may be that questions of privilege arise, but they can be addressed when the witness is to testify. Our position is that communications between Crown and police are not privileged from disclosure at this Commission.

We turn now to submissions on a short list of police officers who we feel have relevant and unique evidence to bring to this Commission, and who should be added to the witness list.

VPD Det. Cst. DARCY SARRA

On October 18, 2002, Chief Constable Jamie Graham distributed an email to all VPD sworn and civilian staff with the subject line “Preparation Regarding Pickton Civil Litigation” . This document has been disclosed to us on the Concordance database as VPD-001-000834. In this email, the Chief Constable identifies Sarra as being the officer tasked with “gathering all documents that might relate to this matter.”

As the Commission is well aware, the families of 25 murdered and missing women, our clients, remain concerned about the adequacy of disclosure by the VPD in this Inquiry. We submit that Det. Cst. Sarra should be called to testify regarding the adequacy of disclosure by the VPD and obstacles faced in collecting all relevant materials.

Sarra is in a unique position to describe what actions were taken to ensure all relevant documents were collected and preserved. Sarra might be aware of documents that were known to have existed but which could not be located. Sarra might be able to provide evidence of what steps were employed to ensure that critical documents were not destroyed.

VPD Sgt. BRIAN HONEYBOURNE

Sgt. Honeybourne was seconded to the Provincial Unsolved Homicide Unit during the relevant time period. He appears to have been the only member of that Unit to have attended the February 10, 1999 meeting with the Missing Women Review Team, at which it was determined that no assistance of that Unit would be provided. The Unsolved Homicide Unit refused to get involved in the missing women investigation at that time as there were “no bodies”, and Sgt. Honeybourne may be in the best position to explain that decision.

Sgt. Honeybourne also attended the September 16, 1999 meeting at which media strategy was discussed and tempers erupted over an alleged leak and the press release proposed by Rossmo.

For unknown reasons, neither DC LePard nor DC Evans interviewed Sgt. Honeybourne in the preparation of their reports. As such, we have very little information directly from Sgt. Honeybourne, further supporting his addition to the witness list.

Sgt. Honeybourne alone is in the best position to answer the following questions:

1. Why did the Provincial Homicide Unit refuse assistance to the missing women investigations in February, 1999, despite the request for assistance made by Connor, Shenher and other missing women investigators?
2. If the refusal was made on the basis of a “lack of bodies” – from where did this requirement come? Was this a matter of policy?

 VPD Insp. GORD SPENCER

 In April, 2000, Insp. Spencer replaced A/Insp. Dureau as the head of the VPD’s Major Crimes Section. At that time Spencer was overseeing the Home Invasion Task Force and the Missing Women investigation.

 In November, 2000, Insp. Spencer recieved a memo from Sgt. Field requesting a third Sergeant on the missing women investigation. Sgt. Field wrote:

 “The Missing Women Investigation is probably a year behind in reaching a conclusion due to lack of adequate supervision and manpower. We have had a high burnout factor from the limited staff that worked on this project. We also may have a killer out there that has gone undetected for a year or longer. Liability is a concern that is often overlooked but has huge implications” [Evans page 8-153].

 On January 21, 2001 Sgt. Field wrote a memo to Insp. Spencer noting that the Missing Women file had suffered from “lack of a full time assigned supervisor, lack of staffing to follow up leads on suspects . . . ” among other concerns [page 8-156].

Given these desperate requests for resources, why were more staff and resources not made available by Insp. Spencer? Did he request any additional resources from higher up the command chain?

VPD Det. PHIL LITTLE

Det. Little was assigned the role of suspect review and prioritization with the JFO in February, 2001, and ought to be in a position to provide evidence with respect to the prioritization of Pickton during the relevant time period. Det. Little created a ranking system and ranked “persons of interest” during the Project Evenhanded phase of the investigation. Det. Little is uniquely positioned to explain how suspects were prioritized, what factors were considered and how these factors were weighed.

Det. Little’s notes indicate that Pickton was not always considered to be the top-priority suspect and that Pickton was lower on draft lists than in the final lists. The VPD has withheld all information about other suspects under consideration during the time period defined by the Terms of Reference. Det. Little ought to be best positioned to explain why, in the face of incredible evidence implicating him, Pickton was not always the top priority suspect, without infringing the privilege the police department has asserted over the documents.

RCMP Cst. DAVE STRACHAN

Cst. Strachan was a member of the RCMP Serious Crimes Section in 1997 when the “Anderson” incident occurred, and his evidence would primarily be relevant to article 4 (b) of the Commission’s Terms of Reference.

Cst. Strachan conducted the search of Pickton’s trailer following the “Anderson” incident, and ought to be able to provide relevant evidence with respect to that search.

Cst. Strachan was also one of two officers who interviewed VIC97 after the attack. He ought to be able to provide evidence with respect to her description of the event and his assessment of her credibility.

This evidence is directly relevant to article 4 (b) of the Commission’s Terms of Reference, and ought to assist with the Commission’s mandate.

RCMP Cst. NATHAN WELLS

On February 5, 2002, Coquitlam RCMP Constable Wells executed a search warrant on the Pickton trailer for an unrelated criminal offence. He was apparently acting on a tip. He was a very junior member who presumably may have sought assistance from his colleagues. Questions for him include:

1. What did he learn about the Picktons?
2. Was he influenced in seeking a warrant by any knowledge of the missing women’s investigations?
3. How easy (or how difficult) was the warrant to obtain?

The last question is the critical one. If the warrant was easy to get, that fact is material to addressing why the RCMP did not act much earlier.

  RCMP Sgt. (now Commissioner) ROBERT PAULSON

 As a member of the RCMP’s Southwest Major Crime group, then Sgt. Paulson was extensively involved in the missing women’s investigations. (His name appears hundreds of times, perhaps up to about one thousand times, in the documents loaded into the Concordance database for use by the Commission) More recently, of course, he has been appointed Commissioner.

According to DC Evans, in March of 2000, Sgt. Paulson and Sgt. Davidson “approached Chief Superintendent Bass with a proposal to create a coordinated effort to review the unsolved homicides and the Missing Women”. [pp. 8-32, 33]  Despite these efforts, it was about another year before the JFO was formed.

Commissioner Paulson has a unique perspective from which to testify about the stumbling blocks encountered in the investigations and, as new Commissioner, to provide evidence on how the RCMP will address similar issues in the future.

 ALL OF WHICH IS RESPECTFULLY SUBMITTED

 “A. Cameron Ward”                                    

Counsel for the families of Dianne Rock, Georgina Papin, Marnie Frey, Cynthia Dawn Feliks, Cara Ellis, Mona Wilson, Helen May Hallmark, Dawn Crey, Angela Hazel Williams, Jacqueline Murdock, Brenda Wolfe, Andrea Joesbury, Elsie Sebastian, Heather Bottomley, Andrea Borhaven, Tiffany Drew, Angela Jardine, Stephanie Lane, Tanya Holyk, Olivia Williams, Debra Jones, Janet Henry, Maria Laura Laliberte, Serena Abotsway, and Diana Melnick