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Commentary on maladministration at all levels of government

by André Marin André Marin No Comments

SIU misses the mark

Thursday we had the gift of a timely Special Investigations Unit annual report which, bonus, had some meat in it, even though some was hard to swallow.

For the last few years, the SIU’s reports came in many months late. In typical bureaucratic speak, both the SIU and its mother ministry, the Ministry of the Attorney General both pointed to the lack of legal requirement to even deliver an annual report. Where is the common sense in that? Must every good practice be legislated?

In investigating the SIU in my prior position as Ombudsman of Ontario, I found that the SIU had had its report, on at least one occasion, nixed or shelved by MAG because they were too explosive, i.e. too likely to rattle cops’ thin skin. In another SIU report, the unit attempted to duck controversy by cleverly distracting us away from the work the unit actually did.

For example, the SIU’s 2006-2007 annual report could have easily been mistaken for a glossy brochure for the Mountain Equipment Coop. Although it was ominously titled “One Law”, the message from dreary-looking, bow-tied former director James Cornish is juxtaposed by shining light through lush green woods.

On page 3, we see a bunch of happy kids white water rafting. What exactly does that have to do with investigating the police when serious injury or death occurs? Next we’re shown a picture of a woman rock-climbing with a serious look on her face.

Finally, Part 3 of the SIU annual report titled “Looking Forward” has someone in a Rocky-like pose with his victorious arms with clenched fists in the air. Hey, you’re located in Mississauga, not Philadelphia.

This particularly weird report made light of the seriousness of the SIU’s job. Investigating the police when they’ve caused serious injury or killed a civilian shouldn’t look like a fun outdoor adventure.

Ten years later, the SIU’s report is thankfully more serious and substantive. But a caveat about SIU reform in the Director’s Message shows that the SIU still has a propensity to shoot itself in the foot. SIU Director Tony Laparco appears to laud proposed reforms which would make individual case reports public when no charges are laid, but quickly points out that “significant issues are likely to arise if law enforcement agencies such as the SIU release information that has historically been implicitly confidential as per common law practice.”

Loparco talks of scary things like the impact on “criminal proceedings, other court processes, civil litigation, a coroner’s inquest or parallel investigations.” He then warns about the impact of potential witnesses who may think twice about coming forward if they think they’ll see their name in a public report.

All of this, of course, is hogwash. If no charge is laid by the SIU, it won’t affect its court proceedings as the report won’t be public. Currently SIU files are not protected from civil discoveries, nor are SIU staff immune from being subpoenaed or sued, so why be concerned about releasing a report? If the police have a parallel investigation that reaches different conclusions, it will justifiably raise red flags. Too bad. And there is no need to name witnesses. The report could easily be anonymized.

The SIU missed an opportunity to fully embrace reform. Instead, it preferred to raise bogeymen scenarios that do little but reinforce the notions it likes, the secretive status quo.

by André Marin André Marin No Comments

Stop Listening to Toadies

It didn’t have to be this way, Kathleen. You could have shown a bit of humility when you knew things were going south. You could have done like Dalton did when he realized not winning the next election was a no-brainer.

You could have quit months ago, paving the way for a leadership convention and maybe, just maybe, a fresh face, someone like the unctuous and vainglorious Yasir Naqvi could have won the leadership and created some distance from you and pulled off an election win and saved the great liberal party of Ontario.

But no, you even ignored the advice of former minister Greg Sorbara who’s career spanned 30 years in politics as finance minister, Ontario Liberal party president and campaign chair. He told you last month you were dead in the water. It’s not as if Sorbara had any animus towards you Kathleen. He lobbied for you to become leader and was on your transition team. You took the advice you wanted to hear, for example, from toady Deputy Premier Deb Matthews.

Another yes man, current Liberal campaign co-chair Tim Murphy said with a straight face that he talked with “lots of Liberals and not one of them wants her to go. Not a single one.” Right, drink the Kool-aid.

Look at yourself in the mirror, Kathleen. You have less than 1/3 of Donald Trump’s popular support. You’re sitting at 11%. And you think he’s a loser.

You’ve dragged your party down to 23% of decided and leaning voters. For months now you’ve been bribing the electorate with their own money in a spending frenzy. There’s been a ton of new vote-getting spending. Free drugs, discounted energy, a huge hike in minimum wage and the list goes on…The cupboard’s bare. And you keep insisting hubristically, Kathleen that all of this has nothing to do with the pending election.

Even firebrand OPSEU president Warren (Smokey) Thomas called the scope of the latest contract extension offer “unprecedented” and said he suspects it is related to the June 2018 election. “I’m kind of shocked the government actually made us any kind of an offer,” Thomas said. “It’s no secret that my union and myself, my executive board, we’re always in a battle with the government…We’re at odds with them on a lot of fronts.” Heck, just take it and run.

There’s an old legal expression that the “jury is never wrong.” In this case, I’d say the voters are never wrong. They saw through the stink of your orgy of spending. They might have taken the goodies you were throwing out, but they weren’t fooled by your cynical politics.

If an election were held today, the Liberals would be reduced to all of 9 seats. They’re even in trouble in Toronto and the GTA where popular mayor John Tory is waging war against what he sees are Liberals’ neglect of housing and transit.

I know you see yourself as some kind of rainmaker flying with the Gods and that you’ll pull a miracle and be back as Premier, Kathleen. But this time you’re going to have to be truly magical. Countless streams of puff pieces by the Star’s Liberal-in-residence columnist Martin Regg Cohn that you walk on water just won’t do it.

by André Marin André Marin No Comments

Theatrics matter to BLM

When my kids were in high school, I remember being asked to sign a petition to get rid of Wi-Fi, as according to these parent-agitators, it apparently caused a great health concern – all our kids would get cancer. No kidding. That’s how whacky it was.

An equally whacky bunch of agitators are at it again but this time they’re going after cops. In Toronto and the Greater Toronto Area, Black Lives Matter have decided that we need to get rid of the School Resource Officer program, where for the last 9 years, uniform cops are assigned to work in schools. There are 36 cops in 75 Toronto schools. The issue emerged out of nowhere or out of no particular circumstance. But it did – likely because BLM got just got bored and needed to stir the pot a bit.

These cops are paid for by the police services and fulfil a multitude of tasks such as building trust between the police and students. All of Ottawa’s schools have SROs.

At Toronto area’s C.W. Jefferys, where a large population of racialized students go to school, for example, an alumni basketball tournament was recently held, partly set-up by the SRO including alumni, students, staff and police teams.

The school’s principal, Monday Gala, said: “If you come into Jefferys today and see the positivity that is going on organized by this partnership with the police, you can’t deny the fact that there is a place for the police in the school.”

At a Thursday Toronto Police Service Board meeting where the matter was to be discussed among 74 speakers all hell broke loose as the session began, courtesy of BLM’s bullying tactics. The meeting was abruptly put off.

From many angles, the SRO programme is a success, according to school principals, teachers and students from diverse racial backgrounds and neighbourhoods.

BLM’s objections to the SRO’s background appears to be on the flimsiest grounds. Don’t let evidence stand in the way of a good publicity stunt.

Their spokesman, Syrus Marcus Ware, said it had a negative impact on some vulnerable students afraid of speaking publicly. Responding to the chorus of those giving example of good deeds performed by cops, such as organizing basketball and barbeques, he said that’s all fine, but shouldn’t be done by cops.

And this is what the problem is with BLM. They are slowly turning themselves into perpetual police persecutors. Whether the police are doing something positive, like walking in support of the PRIDE parade or hanging out with students trying to bridge the gap and develop positive relationships, their role is to be rabble rousers and create mayhem, just for the fun of it. The more circus-like, the better. For example, at the beginning of the Board meeting in Toronto BLM unraveled a large scroll reading in part: “the police harass and brutalize people from our communities – and get away without being held to account for their actions. How can we accept police in our schools to “build relationships”.” Perhaps because building relationships could actually build trust between both parties?

Even when solutions are presented to reform the system, they pout and refuse to rationality contribute. Their critical reaction to the recently released report from Justice Michael Tulloch’s far-reaching police reforms is even more proof that BLM is interested more into the theatrics than solutions.

So let’s park the hysteria over school Wi-Fi and police rubbing shoulders in school hallways and get back to getting ready for the new school year.

by André Marin André Marin No Comments

Modern justice is the only way to keep pace with crime

To walk into a modern courthouse in 2017 is to realize that, well, there’s really not much modern about it. More security, more accessibility for people suffering from a disability and computer displays in courtrooms. That’s pretty much it.

The pace of justice is glacial. You can practicality feel it in the air. It’s that “culture of complacency” that the Supreme Court of Canada referred to in the recent Jordan case setting out a new framework for determining whether a criminal trial has been unreasonably delayed, thereby breaching the accused’s constitutional right to expeditious justice and having the charges stayed.

While it’s framed as the accused’s Charter right to be tried within a reasonable time, we all benefit. Victims certainly don’t want to be burdened with testifying many months or years after they were stolen from or assaulted. Witnesses also want to get it over with. And the sooner a case makes its way to trial, the fresher are the memories and the closer we’ll get to justice.

So why has the justice system been so indifferent to delays and for so long? As I said, this is nothing new. The day after I was called to the bar in 1991, I was prosecuting in a courtroom as an assistant Crown Attorney. I was hastily (but happily) appointed as an “Askov Crown”, the result of a case bearing the name Askov, which you might have guessed was the Jordan of 1990, leading to tens of thousands of criminal cases being thrown out for undue delay.

My boss at the time told me “all I require of you is a warm body in the courtroom on time and I’ll have your back.” There was a clear panic at playing catch-up to prevent courts from continuing to stay languishing cases.

So why are we back to square one, 26 years later? While investing in front line policing is sexy – think gang-fighting TAVIS units in Toronto and DART units in Ottawa, and those silly tank-like vehicles cops refer to as “rescue vehicles”, they are also vote-getting, as in “see what we’ll do to protect you.” But investing in court technology, hiring Crowns, appointing judges and providing resources for the proper administration of justice is not by any means a sexy, vote-getting scheme.

A Senate committee released a report Wednesday providing its recommendations to the problem. There are several recommendations listed as “priority” ones which make a lot of sense such as building a bank of readily appointable judges to fill vacancies as they become available, improving case management and creating a new category of judicial officers to free-up judges from handling pre-trial procedural matters.

But the committee also suggests a reference to the Supreme Court to decide on the constitutionality of reducing a sentence or awarding costs if trial is not in a reasonable time. First, just as you can’t be half pregnant, we shouldn’t have to settle for a partial remedy to a full breach. Second, awarding costs against the Crown means you and I have to reach into our pockets to pay off an accused who might well be guilty of a serious criminal offence. I don’t think so. Getting off should do just fine.

What’s my recommendation? How about a contempt proceeding for a derelict attorney general who has failed to live to his “judicial-like” and “guardian of the public interest” functions, as his role is described on the Ontario AG’s website. Now that would be a long-lasting message against complacency.

by André Marin André Marin No Comments

What is next for Comey?

There was a moment during former FBI Director James B. Comey’s testimony before a Senate panel that brought jubilation to President Donald Trump and his croneys.

The apparent “gotcha moment” was when Comey testified that he passed on his typed-written statement prepared in his SUV to a “friend” while being whisked away from his meeting with Trump. Those notes were his recollection of a meeting with Trump where the president asked him to shut down an FBI investigation into former National Security Advisor Michael Flynn. Comey refused.

That friend, we later learned, was Prof. Daniel Richman, a lawyer and law professor with Columbia. Richman later passed it on to the media. “Aha!” proclaimed the Trump camp, Comey leaked confidential information, thus breaching executive privilege and guilty of some kind of malfeasance or even of breaking the law.

The president’s lawyer, Marc Kasowitz, originally even contemplated invoking executive privilege to prevent Comey from testifying in the first place. He ultimately allowed the proceedings to take place. Now he wants to complain, but to who is anyone’s guess as Comey’s got no boss anymore.

After Comey testified, Kasowitz also not so subtly suggested that Comey could face an investigation on the matter “along with all those others being investigated.”

Privileges are not always absolute. They can be waived directly, or indirectly by behaviour. The Comey memos were leaked a full week after Trump fired Comey on May 9. To be sure, they were not classified information of any kind, just a recollection of a conversation. Between May 9 and May 16 Trump and his gang were all over the map when trying to explain why he sacked Comey.

Consider the wildly varying reasons for getting rid of Comey. First, the firing was recommended by the Deputy Attorney General. Then in a tweetstorm Trump said he was just doing what the Democrats had long wanted to do. Later he said Comey wasn’t doing a good job. Trump staff accused Comey of committing “basic atrocities” during his Clinton investigation. (Brings up images of mass genocide.) Then came the excuse that the FBI had lost confidence in him. Trump also said that he would have fired Comey “regardless” of any recommendation.

The final straw came on May 15 when Trump said: “When I decided to just do it, I said to myself, I said ‘you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won’.”

Would it come to any surprise that Comey finally decided to tell his side of the story? Clearly Trump waived his right to invoke privilege over his discussions with Comey by blabbing incoherently and almost non-stop about why he fired him. Going through a lawyer to get the information out to the public domain was also a clever way for Comey to insulate against any legal reprisals for leaking the information. Comey didn’t leak anything. His lawyer made public Comey’s notes.

Trump tweeted Friday morning that “WOW Comey is a leaker”.

One of the reasons Comey gave for passing on his notes was that it “might prompt the appointment of a special counsel.” It did just that and now we have a better chance of getting to the bottom of things.

If ever the ends justify the needs, this has to be the case.