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.

This photo says it all...

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With thanks to www.bourque.org

According to media reports, the City of Vancouver will be in B.C. Supreme Court later today to apply for an injunction that would have the effect of evicting the Occupy Vancouver crowd from the Art Gallery grounds.  City Manager Penny Ballem is treating the matter as a fait accompli, and she’s probably right to do so, for the British Columbia courts have rarely shied away from granting such orders to government or corporate applicants.

However, in my humble opinion, using the civil court processes of injunction orders coupled with the prospect of contempt of court sanctions to control public behaviour is a wrongful abdication of responsibility.

It was wrong to use the courts to enjoin and punish Martin Luther King Jr. for marching in the streets of Birmingham in the 1960’s and it’s just as wrong today to invoke that process to clamp down on the Occupy Vancouver activists, no matter how misguided their movement may seem to be.

The problem with this approach is, as some courageous B.C. judges have pointed out*, that the court is forced to enter the fray, rather than fill its traditional role as an impartial arbiter.  A judge will be asked to craft a sort of criminal law of general application, then invite the police to enforce it and then punish those who disobey the court’s injunction order with extraordinary contempt of court sanctions.

This is completely wrong headed.  In a democratic society governed by the rule of law, our elected representatives are supposed to make the laws and see that they are enforced.  Here, the City and its law enforcement personnel have all the necessary authority to do maintain public order by enforcing existing laws and they shouldn’t be shirking their responsibility by treating the court as some kind of emergency responder.

This has the potential to get very messy, as ws the case when injunctions were granted to MacMillan Bloedel to prevent environmentalists from protesting against clearcut logging in Clayoquot Sound in the early 1990’s.  Hundreds of well-intentioned folks from all walks of life were tried en masse and jailed for expressing their opinions peacefully, in what I concluded, as a lawyer involved in the process, were some of the darkest days our legal system endured.

It remains to be seen whether history will repeat itself.

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*Notably, Wood J.A. (as he then was, dissenting in Greenpeace Canada v. MacMillan Bloedel Ltd., appeal to SCC dismissed) and McEwan J. (in Slocan Forest Products Ltd. v. Doe, 2000 BCSC 150 and Regional District of Central Kootenay v. Doe, 2003 BCSC 836)

“We don’t do anything by ambush here…” – Commissioner Oppal, October 27, 2011, Transcript, p. 134

The fourth week of the Missing Women Commission of Inquiry hearings ended oddly, with Commission Counsel Art Vertlieb, Q.C. opening the day by unexpectedly reading correspondence between him and I into the record for forty minutes.  The object of the exercise was unclear, but he established that I had been seeking full disclosure of documents and a witness list since early this year.  (At this point, we still have neither).  I responded by wondering out loud why Jennifer Evans of Ontario was given access to all the files last December, while I, the lawyer for the families of this missing and murdered women, wasn’t able to see them for another six months.  Mr. Vertlieb didn’t really have an answer to that question, saying, “I don’t know when she was given access to the documents” and “maybe different considerations applied” to her.  All very puzzling.

The hearing ended at about noon.  Next week, the first police witness, Vancouver Deputy Chief Doug LePard, is scheduled to testify.