As another week of the Missing Women Commission of Inquiry ends and we still haven’t heard from any police officer involved in the investigations of the disappearances, it may be useful to revisit the purpose of public inquiries.  As Supreme Court of Canada Justice Peter Cory put it, “One of the primary functions of public inquiries is fact-finding.  They are often convened in the wake of public shock, horror, disillusionment or scepticism, in order to uncover ‘the truth’…”

My former administrative law professor, Ed Ratushny, emphasizes the importance of the public nature of the hearings in his book, “The Conduct of Public Inquiries: Law, Policy and Practice” at p. 18: “Another feature that enhances public confidence is the transparency of the proceedings.  Most inquiries receive detailed coverage in the media, some are televised, and most now have websites with access to the hearings.  The process of conducting open and public hearings is an important component of restoring public confidence.”

The openness and transparency is an essential element of the process that distinguishes inquiries from civil or criminal trials.  There aren’t any, nor should there be, constraints on the participants in explaining issues to the media.  The media plays the very important role of telling the public what is going on in the inquiry convened for their benefit.

Professor Ratushny also writes, “a commissioner also has broad investigative powers to compel the testimony of witnesses and the production of documents.  The commissioner is not a passive observer, as in a trial, but may ‘go where the evidence leads'”.

This Commission’s first two terms of reference are:

“(a) to conduct hearings, in or near the City of Vancouver, to inquire into and make findings of fact respecting the conduct of the missing women investigations;

(b) consistent with the British Columbia (Attorney General) v. Davies, 2009 BCCA 337, to inquire into and make findings of fact respecting the decision of the Criminal Justice Branch on January 27, 1998, to enter a stay of proceedings on charges against Robert William Pickton of attempted murder, assault with a weapon, forcible confinement and aggravated assault;”

Our clients, the families of twenty women who were likely murdered by convicted serial killer Robert William Pickton, are vitally interested in these issues.  They consider the Crown’s 1998 decision to be of crucial importance, because the dropping of those charges allowed Pickton to remain at large for the next four years, killing more women at will.

Here we are near the end of November and there is not yet any indication as to when the police or Crown personnel who actually had the responsibilities for the issues set out in the terms of reference will take the stand.  We’re told that, for reasons that are unclear, the hearings will have to conclude by April 30, 2012.  For the last seven days, we heard evidence from VPD spokesman Doug LePard and after that we are apparently going to hear testimony from two more police reviewers, Inspector Williams and Deputy Chief Evans.  These two police officers weren’t involved in the missing women cases, but just looked at the filesand talked to a few investigators after the fact.

With the clock ticking, there is a real risk in this proceeding that the police review reports, those of LePard, Williams and Evans, will receive much more weight and credence than they deserve.  The families of the victims need this inquiry to fulfil its purpose of conducting a thorough, rigorous and uncompromising search for the truth.  It is high time that the police officers and Crown lawyers involved in these matters started explaining what they were thinking and doing.

Most police officers are dedicated public servants who do very difficult work in trying and sometimes dangerous circumstances.  Sometimes, despite one’s best efforts and intentions, mistakes are made.  Although police mistakes may have serious consequences, like causing the deaths of innocent people, it’s not fair for police to be criticized for their errors, or worse, to face discipline or other punishment.

As a result of my professional experience as counsel for aggrieved citizens in numerous civil cases against police agencies, a dozen coroners’ inquests into police-involved deaths, several formal complaints made to the Commission for Public Complaints Against the RCMP and British Columbia’s Office of the Police Complaint Commissioner, the APEC hearings, the Frank Paul Inquiry and the current Missing Women Commission of Inquiry, I think I’m qualified to recognise the hallmarks of police coverups. 

Here’s a quick primer for the benefit of any police officers who may not be well versed in the art, on how to whitewash incidents of potential police misconduct, provided as a free public service*:

1) Control the investigation. Investigate the matter yourself if you can.  If you can’t, find another police agency to do it for you.

2) Don’t make notes or talk to investigators right away.  Loose lips sink ships. Take your time. See your union rep and get help from everyone you can before making any statements to anyone.

3) Lawyer up!  The taxpayers give you unlimited funds for the best lawyers money can buy.  Take advantage of their largesse and go see experienced legal counsel right away to get their help in preparing your version of what happened.

4)  Get on the same page.  Make sure all your police union brothers and sisters also have their stories straight and that they take their time too.

5)  Conceal key documents.  Don’t reveal things like contemporaneous handwritten notes, transcripts of radio broadcasts, computer assisted dispatch (CAD) records, etc. unless someone forces you to.

6)  If you are forced to reveal important documents to some sort of tribunal, hold onto them as long as you can before dumping them, in a random and disorganized fashion, on anyone who may be trying to understand what actually happened.

7)  Before flooding the tribunal with paper, liberally edit or redact the documents, taking out anything that you think might be harmful.  Make sure you don’t turn over candid email communications-they can be particularly damning.

8)  If police testimony is required, try to find the smoothest, most experienced witness you can to give your side of the story, preferably as an “expert opinion”. 

9)  If you yourself have to testify about something really serious, have a memory lapse on crucial points.  It’s really hard for a lawyer to get behind a statement like, “It happened a long time ago and I can’t remember.  I wish I had some notes to assist my recollection but I lost them/didn’t make any” (choose the most applicable).

10)  If all else fails, get sick or quit.  If you resign your position to avoid the consequences of serious misconduct, you can’t be discipined and you’ll get that nice pension you’ve earned.  If you don’t have a vested pension, take stress leave and draw your full pay until you qualify for the pension.  Your union rep will help you with this process. 

*The foregoing constitutes my Charter-protected free expression of opinion and is not to be construed as legal advice.  For legal advice on any matter, please see a qualified lawyer in your own jurisdiction.

The Missing Women Commission of Inquiry will resume its hearings at 10:00 a.m. on Monday, November 21, 2011, after an 11 day break.

The report of Peel Deputy Chief Evans, who was engaged by the Commission in November 2010, is supposed to be made available tomorrow, November 14, 2011, according to media reports.

The Commission has heard from 14 witnesses over 18 days, but none of the dozens of police investigators who worked on the case have yet been called.

Vancouver Police Department Deputy Chief Lepard, who released a departmental review of the case in 2010, is expected to resume his testimony when the hearings resume.

This photo says it all...

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With thanks to www.bourque.org

Dianne Rock

As readers of this blog may know, Neil Chantler and I are 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 and Olivia Williams at the Missing Women Commission of Inquiry.

Dianne Rock’s sister, Lilliane Beaudoin, has travelled from Welland, Ontario with her husband Rene, who has taken time off his job as a mobile crane operator to be here.  They have attended, no, endured, every moment of the hearings, which began on October 11, 2011.  Lilliane herself testified and described how her sister, a beautiful and vivacious young woman with three children and a good job as a health care aide looking after quadriplegics, fell on hard times in 2000 when her second marriage ended.  She turned to cocaine and was last seen on October 19, 2001.  Dianne’s family was dealt a cruel blow when her DNA was discovered on property owned by Robert William Pickton and his brother.  Pickton was charged with Dianne’s murder, but in another cruel blow, the charge was stayed after the Attorney General determined that it would not be in the public interest to spend money on a second trial if Pickton’s six convictions were upheld by the Supreme Court of Canada.

Rene and Lilliane have watched and listened as a litany of police investigative errors have been exposed.  They must be in agony each time they hear that Pickton was the prime suspect in a string of women’s disappearances as early as August of 1998, but the VPD and RCMP failed to act on the credible information in their possession.  It wasn’t until February 5, 2002 that a junior RCMP officer, Nathan Wells, found evidence of some of the missing women in Pickton’s trailer while he was executing a search warrant on an unrelated matter.  Rene and Lilliane’s pain must be unimaginable each time they hear a reference to Pickton’s “grinder” or to the bone fragments found on the property.

How could the police have apparently failed so miserably?  That is the question at the heart of this public inquiry, and Rene and Lilliane Beaudoin have been patiently waiting for the police investigators to take the stand, so we can ask the many questions the family has on their behalf.  They will have to be even more patient, as it looks like no police investigator will appear on the stand until some time in January, 2012.  Dianne Rock’s sister is trying to process today’s news that, to meet a self – imposed deadline of April 30, 2012, Commission Counsel may decide not to call important witnesses and the Commission may limit cross-examination.

This family doesn’t deserve any more cruelty.  It would be a shame if now, after a wait of more than a decade for this opportunity, Rene and Lilliane are denied the truth, justice and accountability they need when it isso  nearly within their grasp.