An ominous number

Ivan Radocaj, left, in a dated picture. (The Great Canadian Talk Show Podcast)

When Rita Cushnie showed up at the RCMP detachment nearly four years ago and was interviewed in regards to the killing of John Radocaj, she had exactly $1.87 in her purse.

Over the four-year life of the criminal case, she reported to RCMP for bail management exactly 187 times, her lawyer, Mike Cook told Justice Colleen Suche last night.

It was a coincidence revealed just before Suche handed the 57-year-old a life sentence without parole for 25 years after a jury convicted her of first-degree murder and conspiracy to commit murder.

One-Eight-Seven: The cold irony for Cushnie, I guess, exists in how those digits have also been co-opted by the gangster underworld as a kind of shorthand for the crime of murder.

The slang use stems from the California Penal Code, where capital murder with malice falls under section 187 (a).

Winnipeg has already woken up to the news that Cushnie, her (former?) friend Melody Sanford and her son, Donald Richard were found guilty of the brutal murder of the man once known as “The Croatian Giant” in the wrestler’s ring.

I’m told it’s been a number of years since Radocaj — a large man standing 6’ 8” — ever stepped into the fray. Since the late ‘80’s.

As it is with the media, the ‘ former pro wrestler’ angle became a kind of thin trope to familiarize the public with the case and try to keep their interest (mea culpa).

But at the end of the day, ‘Big John’s’ murder had nothing to do with the faded glare of the spotlight or past athletic acclaim.

Instead, what I can surmise is that Radocaj was just a man who was duped into possibly believing he could have a second chance at love with a woman he had known for years who clearly now hated him for some still-unknown reason.

That’s the story of this trial that largely went untold.

As always, the “why” is elusive when it comes to crime and trials. For prosecutors, the “why” is seldom a question worth delving into, because that’s not really the job. The “who,” “when” and “how” are all that’s needed to secure a conviction, it seems.

It’s probably safe to say Radocaj’s belief in redemption cost him his life in the most brutal way.

A life lost for the promise of a few (and I do mean but a few) bucks and a TV set.

His estranged wife, Sanford and Richard (The orchestrator and executioner) each had the insight to recognize early on that they were culpable in the man’s death.

Their lawyers even admitted as much in closing arguments where they each said in open court manslaughter convictions were probably a foregone conclusion.

In Cushnie’s case, however, she had the most to lose, and obviously felt she was sucked into to something that spun out of any sort of control she may have had over things.

From @deanatwpgsun’s story about the verdict coming down:

Cushnie appeared to break down prior to the jury entering the courtroom. Once the verdict was delivered and the jury had left the room, her tears turned to rage.

“Look what you did to me you little bastard,” Cushnie said while looking at her son as sheriff’s officers moved to handcuff her. “You’re dead to me.”

As the public were escorted out of the gallery and Cushnie was taken into custody for the first time since her arrest, her anxiety spilled over.

“No!” the elderly and frail-looking woman exclaimed, apparently in sheer fright as the female Sheriff approached with the handcuffs.

“Stop it,” the Sheriff barked back at her.

To her credit, Cushnie was the only one of the trio who addressed Radocaj’s grieving mother directly prior to being sentenced:

“I didn’t encourage him,” she said, an obvious reference to her son.

“I feel for you as a mother.”

If her conviction is ultimately upheld (I’d expect a swift appeal) she won’t be eligible for parole until age 82.

Other notes:

At least two jurors — one in particular — were visibly distraught as their decision was read by the foreman last night. By my count, all but two stayed for the sentencing portion and reading of the victim impact statements.

From behind the jury room door upon their exit, loud sobbing could be heard.

Justice Suche declined a request from the defence to poll the individual jurors as to the unanimity of their decision.

It’s in her discretion to do so, and she stated she had no reason to question the verdict.

The decision sparked a short exchange between her and John McAmmond (Richard’s lawyer), who seemed adamant to put the discomfort of the two jurors on the record.

Just moments before the jury portion of the trial got underway roughly two weeks ago, the defence rose to raise a point.

Radocaj’s mother had come to court wearing a photo of her son and either a shirt or a sign stating “Justice for Ivan.”

Suche ordered her to cover it up prior to the jury seeing it, deeming it prejudicial.

I point readers of this blog to this curious story I wrote regarding the case dating back to May 2009.

Even at that time, Sanford was ready to accept responsibility for the conspiracy, possibly explaining the resigned expression she wore during much of the trial that I was able to witness.

From what ever could tell, no abuse of process argument went forward from her lawyers, or it was done in the background.

But we’ll never know what piece of evidence came in that changed the Crown’s position to charge her with the actual killing more than a year after the conspiracy charge was laid.

There are two other accused in the case that have yet to deal with their charges.

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R. v Sanford, Cushnie and Richard – Trial notebook pt. 1

Obviously, I can’t be in court for every moment of testimony in this serious case, but will update this notebook as I go.

For those not in the know: Ivan Radocaj, 43, was killed in his isolated home near Inwood, Manitoba in September 2007. While he wasn’t found until the 14th of the month, police allege he was killed two days prior. Radocaj was a 6′ 8″ tall man who was well-known as a pro wrestler some years ago under the names “The Croatian Giant” or Big John Radocaj. I have no picture to offer of the man, but if there’s one out there, please send it my way.

In 2008: RCMP came forward with charges against his ex-wife, Melody Sanford, 47. Later, others, including Rita Cushnie, 57, and Donald Richard, 35, were authorized. Sanford and Cushnie are friends. Richard is Cushnie’s son.

Chris Houle and Dan Richard are dealing with their charges in separate proceedings, jurors were told.

Sanford, Cushnie and Richard pleaded not guilty today in front of a six-man, six-woman jury to first-degree murder and conspiracy to commit murder. They are presumed innocent.

Notes to supplement mainstream media accounts: (Here, here and here)

The jurors hearing the case appear to skew younger than many panels I’ve seen. Many appear to be in their early 30’s, some younger. When they were handed autopsy and crime scene photo booklets today, I watched them for any reaction. To be honest, they betrayed no overt responses.

The QB judge presiding over the case is Justice Colleen Suche.

Crown Attorneys Mark Kantor and Brian Bell — Bell being fresh off the Mark Grant trial from earlier in the year — are the prosecutors.

Ryan Amy is acting for Sanford, John McAmmond for Richard and Mike Cook for Cushnie. All experienced criminal defence lawyers.

Mark Kantor delivered the Crown’s opening to the jury, it was measured and largely dispassionate in simply noting how the progression of witnesses will go [more on this below].

However, his and Bell’s styles are very different and Kantor is certainly more animated than his counterpart. It’s a similar pairing as was in the Grant prosecution, where Mike Himmelman was the one delivering the opening – pointing red-faced at the prisoner’s dock saying the jury would have no trouble finding Grant guilty of murder. In the end, jurors did, but of second, not first-degree.

The prosecution witnesses:

  1. Dr. John Younes, a pathologist who conducted the autopsy in the case.
  2. Cpl. David Chalmers, an RCMP forensic identification officer; expected to testify about notebooks he was given that contained diagrams of Radocaj’s home and a fingerprint belonging to Sanford.
  3. A friend of Radoaj who found his body on Sept. 14, 2007.
  4. A friend of Sanford’s who the Crown says is expected to testify about comments allegedly made on her wedding day where she expressed reluctance to get married.
  5. Another friend of Sanfords who is expected to testify Sanford allegedly made comments about “hiring a hitman.”
  6. Sanford’s daughter, who is expected to testify about the relationship about Sanford and Radocaj.
  7. Tim Richard, Donald’s cousin: is expected to testify he attended a number of meetings where the conspiracy was discussed; that Sanford allegedly got Radocaj out of his house to go to dinner while three others would go there and lay in wait for him to return. The cousin is expected to tell jurors he drove the getaway car and saw the alleged attackers leave with a TV set.
  8. An associate of Richards, expected to testify that he made comments regarding his involvement in the crime.
  9. An RCMP analyst to speak about phone records seized regarding the time frame of 5:30 p.m. to 9 p.m. on the date police say Radocaj died.
  10. Melody Sanford’s statement to police.
  11. Donald Richard’s statement to police.

First in the witness stand was Dr. Younes, who testified about the injuries Radocaj had sustained. As an aside, according to Younes, Radocaj suffered from “fairly advanced” emphysema. At the time he died, he was wearing jeans from which a pack of smokes was found and “light weather” clothing.

Younes stated of the eight head injuries he found, five he’d consider to be “major” or “significant.” These included a 14×9 cm abrasion to the right side of Radocaj’s face and a “penetrating injury” to his right forehead, described by him as “a very powerful blow inflicted with a weapon of some kind.” There was another large injury on the top of his head and the large man suffered a “shattered” brain base.

As Younes described the injuries, Sanford sat with her head cradled in one hand, her reddish hair covering her face as to make her reaction unknown. Richard stared straight ahead, as did Cushnie.

Radocaj had what Younes suggested could be defensive wounds on his left arm and wrist, as if he had tried to shield himself from blows.

The weapon used, said Younes, was a “bar of some kind,” not likely a bat because there would be more bruising.

Second on the stand was Cpl. Chalmers, who was called to the crime scene to photograph it on the date Radocaj was found. 27 photos were presented to the jury, four of them Chalmers didn’t take himself.

Key points of his testimony were that an entrance door to Radocaj’s home appeared to have been “forced inward from the outside,” but he could find no tool marks to indicate it had been pried open.

Radocaj was found face up in a cluttered area of the home, which was disheveled in parts. In the bedroom, the posters from the bed had been knocked to the floor, and the mattress was out of place.

Photos 23 and 23a were taken after the crime scene investigation, they are of notebooks given to him on March 6, 2008.

Fingerprints belonging to a Tim Richard were found inside, along with one of Sanford’s when he compared them to RCMP records, he testified.

Jurors have been told to expect three weeks of testimony.

Radocaj’s parents and other supporters were present in court today.

More to come.

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‘Whitey’s’ words:

(Ian Jackson MacDonald and his daughters/James Turner)

Ian Jackson MacDonald’s comments upon leaving the Remand Centre Wednesday afternoon:

(MacDonald, affectionately known as ‘Big Mac’ or ‘Whitey’ has faced the music for his role in plotting to import large amounts  — the Crown called them ‘bales’ — of weed into Manitoba in the late 70’s. U.S. Marshals nabbed him in November, in Florida, after 30 yrs on the run. The drug investigation reached into the Manitoba Legislature with MLA Bob Wilson being indicted and sent to prison for his role. The case is so old that the trial transcripts were typed with a manual typewriter using onion-skin paper, just to give you an example of the history.)

On getting out after months of being locked up, sick with cancer and several other ailments that have greatly reduced his life expectancy:

“It felt like a great relief to get out in the sunshine and out of the nasty air conditioning in that building.”

”We’re doing OK. I’ve never been in jail before, never had a criminal record before – so this is all something very new to me. That’s about it.”

On being reunited with his kids – who he didn’t see for three decades after choosing to go on the lam:

“It feels great. They’re my daughters, they’re my buddies…they’ve come from California, from LA to fix me up, to look after me…I have a family again.”

His reaction to the two-year house arrest sentence handed to him – one carefully negotiated by the highest levels of the federal Justice department and his own lawyer, Sheldon Pinx:

“It’s amazing, for such a little amount of substance that, uh, they take a 93-year-old man and boy, they’re sure giving it to me.”

On saying on prior occasions that former MLA Bob Wilson is innocent:



”I’m starting to wonder about that.”

(Gets cut off by daughters and whisked away.)



The burden of proof

(Federal Court of Canada coat of arms)

Note: Settle in, dear reader. Since this virtually-located post cost me real dollars in terms of photocopying exhibits and documents, it’s long. But, for those with an interest in stories of justice, governance, local politics and accountability, this may be right up your alley. Thanks, JST.

Liquor-for-votes allegations in dry community prompts probe

If there’s anything one could immediately say that R.J. (Bob) Norton has under his belt, it’s experience.

After 25 years as a police officer with the RCMP, he began a successful new career as a private investigator and security consultant that’s now spanned 15 years and taken him into far-flung Africa and South America.

Fourty years is a long time to hone an investigator’s nose for trying to get at the truth of things. He’s been a hired (independent) gun for federal government before — an indication his work is a known and trusted commodity.

Since 2005, Norton has also been working as an electoral officer for Band Elections and conducting investigations of elections appeals.

On Mar. 16, 2010, Norton was contracted by officials in the department of Indian and Northern Affairs (INAC) to take a look into a litany of serious allegations made by man who finished 3rd in the summer 2009 election for chief of Manitoba’s Little Grand Rapids First Nation.

Specifically, Norton was hired by INAC to investigate allegations some votes for the current chief and one band councillor on LGR had been ‘bought’ with plastic bottles of whiskey and cans of beer, and additionally, that an electoral officer had allegedly engaged in corrupt practices by encouraging an elder on which candidate to vote for.

It was the second time in recent years Norton had been tapped to look into such allegations in the same community.

The First Nation is remote, being located about 280 kilometres northeast of Winnipeg. In summer it’s accessible only by boat or aircraft.

It’s policed by members of the RCMP, Norton’s former employer.

Little Grand Rapids is also a dry reserve.

The community (with an on-reserve population of roughly 1,000) has been alcohol-free by statute — meaning the possession and consumption of alcohol there is illegal under the Manitoba Liquor Control Act — since 1996.

Despite that, Norton’s research and experience led him to remark in a report to INAC that booze is still a major problem on the reserve.

“With a high rate of alcoholism on the LGRFN and it being a dry reserve, beer and liquor is a valuable commodity,” he wrote in his April 1, 2010 report. “Beer and liquor can sell for several times the retail price or be used to influence people such as at election time.”

He gives an example in his report. Norton states a large bottle of whiskey and two 24 cases of beer would cost about $115 in Winnipeg. Bootlegged on the reserve, it would sell for about $400-500, he said.

He asked around: An MLCC senior inspector told him the most common product imported to Manitoba’s dry reserves are 26 oz. or 66 oz. bottles of Windsor Whiskey.

“The containers are plastic as opposed to heavy breakable glass and the bottles do not have long necks taking up more room in transit,” Norton stated.

‘Connect the dots’

(Parliament building)

Before going further, I think it’s important at this point to introduce Norton’s findings after his roughly two-week long investigation concluded:

The allegations in this report, if proven in criminal court, could be violations of the following law.

  • Section 465(1)(d), Criminal Code of Canada, Conspire to commit a criminal offence
  • Section 85.1(4) Indian Act. Violation of Alcohol Bylaw
  • Section 115(3) Manitoba Liquor Control Act, Unlawful Transportation of Alcohol
  • Section 127(1) Manitoba Liquor Control Act, Major Offence By Person

In a subsequent email to an INAC official overseeing the review, Norton told her:

“I suggest if this was in any municipality in Canada there would be a long and aggressive investigation to gather sufficient information to support criminal charges under provincial election laws. All we need here is to show that corrupt practices “appear” to have taken place.

“As the judge in the Peguis case said…. “connect the dots” (My words).

“If you brief DoJ [the department of justice] and they say it is almost there… let me know what you need.

Bob”

INAC, however, ultimately elected to dismiss all allegations — and therefore Norton’s findings — citing a lack of evidence to support that a violation of the Indian Act or the Indian Band Election Regulations had taken place.

How could that be? Didn’t the department hire Norton?

We’ll get there. Read on.

Denials and silence

When Norton arrived on his fact-finding mission at Little Grand Rapids, he had 18 people, Keeper, and the current chief on his roster to talk to as witnesses.

He had already talked to the local RCMP Sergeant who pledged full co-operation.

But getting to the bottom of things wasn’t going to be easy, Norton immediately discovered.

On arrival, the local man he had hired to act as his translator, driver and assistant in locating the various witnesses suddenly backed out.

“His brother … took the same stand,” Norton wrote. “I concluded that both had been influenced not to assist with the investigation.”

Not to be deterred, Norton managed to hire a local woman to do what others so suddenly appeared unwilling to.

His first step was to investigate an allegation the chief provided alcohol to two men in exchange for their votes. Both were interviewed in Ojibway and each stated they had received nothing for their votes and the allegations were false.

It was the same result when he spoke to three others in connection to separate allegations that the chief and a councilor traded booze for votes on two occasions.

Next, Norton switched gears and tackled Keeper’s allegation that a local electoral officer “influenced elderly voters by advising them which candidate to vote for.”

The woman he spoke to said she witnessed the officer tell an elder to vote for the current chief over selecting Keeper, who was also a candidate.

That same day, Norton spoke with the election official at his home. He denied any wrongdoing and said he did not influence the elder to vote for any candidate.

But the official said something that undoubtedly perked Norton’s ears up:

“[He] verbally admitted that he had accepted bottles of liquor from [the councilor] at a post-election party,” Norton said in his report to INAC.

The next day, he spoke with the elder who was allegedly influenced. Most of the conversation was in Ojibway. The woman told Norton “everything was OK with her voting on election day and she did not want to get involved.”

The woman’s granddaughter was present during the interview, Norton said. In English, she told him that the woman had actually complained the election official interfered with her vote as alleged by Keeper.

Norton remarked in his report the granddaughter’s version corroborated the polling booth witness’s story. The government would later argue it was heresay (which is, technically true).

That same day and into the next, Norton spoke with three other people. Each denied being given anything for their vote.

However, two stated that the councilor in question “gave them small bottles of whiskey during a celebration party after the election,” Norton informed INAC.

The councillor was interviewed by Norton a few days later and denied there was any such party or celebration after the election.

But there was a booze-fuelled one just weeks before it, Keeper alleged.

Ask the RCMP, he said.

They were called there.

RCMP respond to party, booze discovered

In a recent Federal court decision, the delegate for INAC looking into the allegations was quoted as making the following comments in a report:

While there is a high rate of alcoholism on the reserve, Little Grand Rapids has been a “dry” reserve since 1996.

The allegation that [the chief] and/or his supporters provided alcohol to electors in exchange for their votes was also submitted in the previous election held in 2007.

The investigation in both instances was undertaken by Norton Security Consulting Inc. (Bob Norton). The investigator reports that there is no doubt that alcohol was distributed by [the chief] and his supporters during the election, but individuals refuse to provide the investigator with a statement for fear of losing their jobs and/or for their physical safety.

In his appeal, Nelson Keeper states that “on or about July 19, 2009 a campaign party was held (by the chief) a couple of weeks prior to election day for the sole purpose of bribing people with alcohol”.

The Elections Unit contacted the RCMP about alcohol being provided to individuals at this party, and in a written statement the RCMP confirm that “police received a report of a large party … where liquor was readily available. Police….observed a number of intoxicated individuals drinking liquor in and around the store. [The chief] was present and took ownership of the liquor. [The chief] indicated a meeting had just finished and he was in the process of having everyone leave.”

While the RCMP confirmed that there was a pre-election campaign party, the RCMP was unable to confirm that alcohol was exchanged for votes. In response to the circulated appeal, [the chief] stated in his affidavit that the gathering was a birthday party in his honour and included a copy of his status card which confirmed his date of birth as being July 17, ****

On March 22, 2010, the investigator asked the RCMP why [The chief] was not charged for being in possession of liquor at the party. The RCMP reported that the local detachment was advised not to charge [the chief] from a higher authority with the RCMP in Winnipeg.

On April 1, 2010, [The chief] was interviewed by the investigator in the presence of the chief’s lawyer… When asked about the above mentioned party held at Owens Store, the chief denied taking ownership of the liquor, and as such, [the chief] claimed the police report was incorrect.

(Record of the AG, Vol. 1, pp. 187 – 188) [Emphasis mine.]

Appearance of wrongdoing is benchmark: Judge

I pause now to tell you why you’re reading this (and hopefully you’re still here, because there’s considerably more that Norton told INAC that he found out).

(Justice Douglas Campbell)

Recently, Federal Court Justice Douglas Campbell told INAC to go back and reinvestigate the allegations, saying their initial decision to not pursue it further was based on a “fundamental” legal error in interpreting Indian Band Election Regulations and the standard of proof regarding decisions to set aside election results.

“The [minister’s] decision is set aside and the appeal is referred back to the minister for re-determination on the following direction: the re-determination be conducted according to the correct standard of evidence evaluation and on the complete existing evidentiary record.”

The federal court was charged with reviewing INAC’s decision to not investigate Keeper’s allegations further (as per Norton’s recommendations) nor overturn the election results.  The review came at Keeper’s request.

Essentially (by my reading, anyway), Justice Campbell ruled that INAC was required to make its decision about the Little Grand Rapids situation based on the proof of “the appearance of wrongdoing” and not wrongdoing proven as fact.

Because as hard as Norton tried in his capacity as the hired gun independent investigator to get people to talk to him, many stated they wouldn’t out of fear for their safety and/or livelihoods in the community.

Campbell, in his assessment of the case, was acutely aware of this and chided INAC and its decision-making delegate for not taking this into account.

“The Evaluator [INAC’s delegate] apparently chose to apply a practice of reporting only on the basis of evidence of wrongdoing coming from persons directly involved in the circumstances of the wrongdoing, and who are willing to co-operate as a witness, well knowing [Norton] found that such witnesses could not be expected to come forward due to threat of intimidation,” he said.

“This practice is not only remarkably unfair to right-minded people living on the Little Grand Rapids First Nation, but is unrealistic in the prevailing context.

“In the present case, the wealth of evidence coming from the observer witnesses to wrongdoing was required to be evaluated. In addition, compelling circumstantial evidence was required to be considered…”

The judge then goes on to quote another report to INAC on the Little Grand Situation — and the ultimate recommended disposition the department should follow:

Campbell:

“The closing to the Evaluator’s report to the Delegate reads as follows:

An investigation has been undertaken to investigate the allegations of widespread vote buying for the past two elections. It is highly regrettable that individuals are unable to substantiate these allegations for fear of losing their jobs and/or their personal safety.

To reduce or eliminate the availability of alcohol to buy votes prior to the next general election, suggestion is made that Headquarters and Regional departmental staff meet with the RCMP (Superintendent, Selkirk Detachment and local detachment office on Little Grand Rapids), the Manitoba Liquor Control Board, the Department of Transportation (i.e. flights to/from LGR) and the Assembly of Manitoba Chiefs in order to develop a common strategy.

Recommendation

We recommend that the appeal be dismissed and that you sign the enclosed letters to the Regional Director General of the Manitoba Region and all of the candidates accordingly. The results of the election, held on July 22, 2009, should be allowed to stand.”

‘Uh-uh,’ Campbell suggests. ‘Not good enough.’

“There was a responsibility to act on the evidence presented in the Investigator’s report. What I find to be regrettable is that the Evaluator and the Delegate failed to reasonably address the reality of the serious election problems faced by the People of the Little Grand Rapids First Nation.”

(Little Grand Rapids locator map)

Councillor was bootlegger: allegation

But the above isn’t all that Norton told INAC he discovered in the course of his investigation.

He also told INAC’s case evaluator that witnesses who spoke to him alleged the following:

  • That the chief gave liquor to an alcoholic mother whose kids were in the care of CFS (but present at her home for a visit at the time) — [this came as second-hand information he couldn’t corroborate].
  • That the chief delivered beer to someone
  • That a councillor delivered whiskey to band members’s homes using a car for the purposes of garnering votes.
  • That the councillor imported liquor to the reserve with the help of his mother

Strangely, one of the witnesses — Keeper’s sister — found herself evicted from her home and her paycheque left unsigned just days after speaking with Norton, he reported.

The chief informed Norton in an interview that the eviction was “to make space available for people visiting the community.”

In the case of the supposed liquor importation, Norton’s report states he was contacted by a woman who alleged she was paid $100 on behalf of the local councillor to transport people and booze (30 cases of 12 cans of Budweiser and “two or three hockey style bags which may have contained whiskey as they were very heavy.”) from a nearby airport.

She told Norton she was so upset by what took place that she told a local store manager who reported it to the RCMP.

“In an attempt to confirm the details of this allegation, I interviewed the two airport employees who were present at the time the flight arrived. They were working outside on a fence … Although there was some indication that they knew what I was talking about, they did not want to co-operate for fear of their jobs,” Norton said.

Another person he spoke to — who was there when the flight arrived — “became emotional” when Norton contacted her.

“My investigation was causing too many problems on the reserve and her husband had just been fired from his band job,” Norton reported her as saying.

“She believed that he was fired because he spoke with me,” he said.

“She refused to co-operate.”

Norton tried to get in touch with the pilot of the plane, but at the time of writing, she had moved away and did not immediately return his messages.

“The RCMP confirmed that they had been advised of the flight, but it was several days after the incident and at the time could do nothing about it,” Norton said.

The next election in Little Grand Rapids takes place in July 2011.

‘Innuendo, speculation and unsubstantiated hearsay’

The chief and the councillor have each denied any wrongdoing and have not been charged with any crime. The allegations made against them by Keeper and others have not been proven.

The chief fought back vigorously against Keeper’s judicial review/appeal of INAC’s decision, saying the evidence Norton gathered didn’t prove anything, or in some instances was “very weak”.

“[The chief], submits that INAC considered all the materials before it and came to a reasonable decision based on the evidence,” he said in an affidavit.

“There was no compelling circumstantial evidence of corrupt practices before INAC and no sound basis upon which this honourable court could conclude that INAC made erroneous findings of fact in a perverse or capricious manner, or with regard to the material before it,” the chief said.

For its part, INAC — through the Attorney General of Canada — also fought the judicial review on a number of grounds, not least of which that INAC’s own investigator’s allegations of fear and intimidation in the community “were based on innuendo, speculation and unsubstantiated hearsay,” according to an affidavit filed Nov. 26, 2010.

The decision to not investigate further was “justified, transparent and intelligible,” as set out by case law, lawyers for the AG said.

“It was open to the minister to assess what weight, if any, to give to this evidence.

“Deference should be shown to the minister’s decision to not rely upon this and other anonymous evidence. Several individuals who were interviewed by the investigator denied that anyone had contacted them or threatened them with respect to the investigation,” the affidavit said.

“The minister, in accordance with the [Indian Band Elections Regulations], properly considered all of the evidence and concluded that there was insufficient evidence to establish corrupt practice in connection with the election. Without sufficient credible evidence, the minister was unable to conclude that [the councillor and chief] engaged in corrupt practice or that [the election official] interfered with voters’ voting decisions in connection with the election. The minister’s decision can be rationally supported by the evidence,” the AG stated.

As we now know, the judge clearly disagreed with INAC and the chief’s positions.

Forfeiture laws not used: report

As an aside, Norton’s final remarks in his report to INAC raises some questions that strike me as worth pondering:

Although the RCMP has seized large quantities of alcohol coming into [Little Grand Rapids First Nation] by road and aircraft, they have not taken advantage of the law that permits seizure of vehicles, boats and planes used in the commission of offences.

Section 103 (1) of the Indian Act permits seizure of property used in the commission of offences under the act. A judge can order the forfeiture of the property to the Crown.

The Criminal Property Forfeiture Act in the Province of Manitoba could result in the seizure of planes, vehicles and boats used in the transport of alcohol in contravention of the Indian Act, the Criminal Code and the Liquor Control Act.

If this is truly the case, why don’t we?

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Major Crimes: A week in review II

(Winnipeg police)

Without a doubt, the top local crime story this week involved the arrest of Thomas Brine, 25, in connection to the death of Elizabeth Lafantaisie. First degree murder is the charge, and strangulation the cause of death. No matter what, what happened to this woman is atrocious. Brine, despite his young age, is no stranger to the justice system in Manitoba. What may be interesting down the line is whether the “forensic evidence” police claim link Brine to the killing is a win for the RCMP DNA databank. I’m skeptical of that given the rapid-fire turnaround in what appeared to be a red ball homicide case one day and solved just a few days later. Fingerprints is my guess — but it is only a guess.

In other news, lawyer Robert Tapper had a better week than last with an even score in terms of his conviction rate. There was more (unfair) gnashing of teeth about his role as special prosecutor after WPS Constable Ken Anderson was acquitted of sex-related charges — but there was really no reason for it. Anderson was found not guilty after a full and transparent shake in the justice system. The story about the abuse was found to be just that — a story. I note no one has called for a review of the case in light of the acquittal, so here’s hoping Anderson can somehow get back to work and be able to put this behind him. But it won’t be an easy task, as Mike Sutherland of the WPA told CBC this week:

“Just the allegations alone cause challenges and sometimes they’re difficult to rebound from,” Sutherland said.

Tapper said he won’t appeal the Anderson ruling.

The lawyer’s week got better by Thursday, when former RCMP officer Benjamin Neufeldt was sent packing to jail for sexually exploiting a teen girl on a Manitoba reserve. Mike Mac of the WFP had a good story on the details of the case.

One thing good comes out of the recent Tapper cases, however — it’s brought to the surface the process by which independent lawyers are appointed in cases where a suspect has a direct connection to the justice system. As I’ve learned, Manitoba appears to be the only province where local lawyers are actually hired to prosecute cases independently from, but in consultation with, the justice department. Justice Minister Swan is promising to sit down with head of prosecutions Mike Mahon and see what’s what. It comes on the heels of a recent review of the provincial policy by retired Judge Ruth Krindle.

The media glare continued to shine on Justice Robert Dewar this week and several local stories examined past court decisions he’s made, at least one of which is under review by the Manitoba Court of Appeal, which could rule to order a new trial any day now. Alternately, it could not. The judge’s week got worse when the judiciary came forward with a statement about his status about not hearing cases of a sexual nature, followed by the news he either was punted or asked to recuse himself from sitting in the Wegier manslaughter trial — a decidedly non-sexual case.

(Allan Fineblit/Lawyersweekly.ca)

However, the most interesting information and reaction about the whole affair came from blogger/WFP reporter Melissa Martin, and an op-ed in the Free Press from Law Society head-honcho Allan Fineblit. While Fineblit starts off obviously referring to the Dewar furor but goes on the describe how the process of judicial appointments could be altered, he provides some useful information. I’d bet if you asked the average person what they think about the appointment of judges in Canada, you’d get a blank stare, followed by ramblings about blood sacrifices and cloaked old coots hunched over in some stone room waiting for a phone call from the PMO. We now know, through him, that that’s not the case.

I was waiting, though for someone to comment on the first few paragraphs of the piece that says the following [again – referring to, but not naming Dewar and his current predicament]:

Let’s face it, even good judges sometimes make mistakes, or lose their patience, or say the occasional dumb thing. They are, after all, human beings and to my mind the more humanity the better. Mistakes can be fixed. That is what the Court of Appeal and Supreme Court do for a living. But I am not writing this to tell you about what I think about our judges. I am writing it to tell you how we can do better.

Something strikes me that given the outcry about Dewar, many people don’t think he simply made a mistake, lost his patience or simply said a dumb thing in the sex-assault case ruling that brought all the attention.

But again, I have yet to see full transcript of the ruling, let alone the full trial testimony.

The Freep’s FASD series continued  — with today’s comprehensive look at youth justice and the disorder. It should come as no surprise to anyone, however, that the Manitoba Youth Centre is a convenient warehouse for kids with cognitive or other disorders. Still waiting on that mental health court, NDP.

In other news:

  • The united front known as the Devil’s Gap Cottagers have taken a unique land claims situation and are trying to turn their misfortune into some kind of advantage by suing their former legal team for millions.
  • In the days after the city settled with Manitoba Hydro over a long-standing tax dispute, the city filed a suit against local company J.A. Robinson for alleged problems with a tech system for its fleet of vehicles worth more than $600,000.
  • On the flip side, the WRHA is going after the city and trying to force it into arbitration over a dispute over rents involving one or two community health clinics. In court documents, the WRHA says it is seeking reimbursement of  alleged rent overpayments to the city between 2000-2007. The dispute has been brewing since 2006 and could be valued in the hundreds of thousands of dollars, lawyers for the health authority say. The amount is very much in dispute. An affidavit says the city has failed to respond to the WRHA’s letters “seeking the co-operation in the appointment of an arbitrator under the arbitration clause” of a lease agreement.
  • This guy has admitted responsibility to using  a former roommate’s kids he used to babysit to make child pornography with, among other things. Has to be one of the fastest turn-arounds for a major case I’ve ever seen. He was just arrested in January. Sentencing was adjourned to a later date.

Finally — kudos to Manitoba Justice and Crown attorney Lisa Carson [and by extension now-Judge Dale Schille] — for this. Although the penalty to some may seem like small potatoes for the blood that was shed, it’s the maximum allowed by law in Canada. In the U.S., he’d have likely faced execution or consecutive life terms for all three murders. I’m waiting to see if he’ll appeal, and on what grounds. That’s two adult sentences in two weeks for Manitoba Justice, and a third to follow this week, which I’ll be covering in detail.

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Set up to fail?

(Lac du Bonnet/Google maps)

Less than two months after getting out of the clink for indecent exposure and child-porn offences, Bruce Nelson, 50, decided to take a drive.

It was June 22, a beautiful early summer afternoon, and classes at a school in the Manitoba community of Lac du Bonnet were just letting out.

Two young girls, who shall remain nameless, are out walking, likely talking about the weekend they were about to enjoy.

They spot a car driving past them slowly. Driving it was a man, looking right at them. It passes, but then circles back at a speed “half as slow as a car would normally drive,” one of them later told RCMP. The man kept staring.

I’ll let Manitoba prosecutor Terry McComb pick up the details:

“The girls realized that even though he had his hands the steering wheel he actually had the window of the car open and down, and he had his pants off and his penis out,” McComb said at. “They saw that his shirt was rolled up and he essentially exposed himself to them. On the two times that he circled he didn’t say anything to the girls he just stared at them … When they saw that, they ran off.”

A parent was called, and RCMP were on scene within minutes and took Nelson into custody.

The arresting officer noted Nelson’s shirt was rolled up, belly exposed and he had no shoes on.

In the back seat was his underwear.

Placed beside him were two dispensers of hand cream.

After processing him, they took the father of two to jail, where he was up until Thursday afternoon, or possibly early Friday morning. He’s expected to be living back near Lac du Bonnet with his aged parents.

He had already been locked up for more time than he was supposed to get for the indecent exposure [and the breaches of the child-porn probation] so on Thursday, the courts let him go.

But here’s the [less tawdry and more interesting part*]. Nelson, who had already violated the terms of his probation order in connection to the child-porn crimes, was handed a second order.

While that’s nothing out of the ordinary, the terms of that order certainly are.

“Quite unusual,” is how McComb described the conditions she and defence lawyer Saul Simmonds arrived at.

In addition to the usual factors (keep the peace, report to probation, curfew checks, etc) Nelson’s order includes some rather novel conditions he’ll have to live by for the next three years. And yes, part of that is sex-offender counselling,

Quoth McComb:

“They’ve been crafted very carefully to address the concerns we have about the accused being out in the community. They might seem onorous, but there’s some very particular issues that are attempting to be addressed through these conditions,” she said.

She didn’t get into what those “particular issues” were, per se, but you get the gist from the list of extra conditions he’ll face below:

  • Not be alone with anyone under 16
  • Not be in the company of anyone under 16 except in a public place and accompanied by another adult
  • Not to communicate with anyone under 16 unless they are a service provider of a commercial business and [he is] utilizing the services of that business.

“That would allow him to go to a Tim Hortons and speak to a 15 year old,” McComb said. “It won’t allow him to chat with a child on the street.”

  • Report to police the make and model of any vehicle he owns or operates, and only drive or operate those vehicles.
  • Participate and complete counselling as per directives of probation services. Including, sex-offender counselling. As well, agree to participate in assessments and treatments and share the results of those with probation services.
  • House arrest for the first three months (to get all the programming to be provided to him in place).

Nelson is already bound by a SOIRA order [in other words, he’s a listed sex-offender on a federal database].

It’s a lot of restrictions, no doubt. And I guess the concern is — will they set Nelson up to fail?

Simmonds was clear that it’s up to his client to get through it and get help.

“He has to embrace these options and opportunities,” he said, adding later, “In isolation, this particular matter might not seem overly serious, but because of some of the prior involvements … the community of Lac du Bonnet is concerned.”

Nelson had nothing to say when Judge Robert Heinrichs asked him if he did.

Heinrichs, however, did.

“I’m hoping you’ve come to the realization that you need some help,” he said, adding the probation orders he’ll be under will no doubt make his life “pretty difficult.”

“I have no doubt that this was something that was discussed in the community of Lac du Bonnet and probably had some parents in quite some mode of paranoia and wondering if there kid was next or subject to possibly having you encounter them in an inappropriate fashion,” the judge said “It strikes a lot of fear in the minds of parents to say nothing of what it may do to the children if you encounter them.”

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*Interesting in the procedural sense. Not necessarily interesting as in: Has mass appeal.

How tough can we get, really?

We'd love to think this, but is it true? (MPI)

Or better yet — are the sentencing tools judges and justices have to work with good enough?

Are the options of jail, probation, house arrest and fines (generally, these are the big four) enough to deter offenders (convicted or would-be) from crime?

Let’s look at the recent case of Crystal Audy, a 29-year-old First Nations woman who lives on reserve just outside of Swan River.

Last April, Audy was hammered on booze and dope and rolled a vehicle. One passenger suffered a broken jaw, the other a range of injuries that will likely affect her for the rest of her life.

From Judge Don Slough’s Jan. 19 decision:

[The victim]suffered a broken arm, paralysis to her right side and extensive bruising as a result of the accident.  Four months later, [The victim] still uses a cane and requires assistance in her home in terms of bathing.  Her treatment is on-going and it sounds as if she will never return to her pre-offence condition.

Audy — who has no criminal record — blew .14 at the low range when tested.

When asked why she drove she responded “I was the least drunk of everyone so I had to drive,” an opinion shared by another passenger.  At no point in her life had Ms. Audy possessed a driver’s licence.

The judge then turns to Audy’s background:

The Pre-Sentence Report which included a valuable “Gladue Report” describes Ms. Audy as the product of a small, remote and impoverished First Nation community with high rates of unemployment and crime. She is responsible for the care of two young children and subsists on Band assistance.  The community has limited recreational and therapeutic resources.   Ms. Audy advised the probation officer she frequently saw violence and substance abuse within her own community.  Her parents were the product of the residential school system.  The offender’s mother in particular suffered as a result and due to family addiction issues Ms. Audy was raised in foster homes and by her grandmother.  The offender advises that she was victimized as a child.  She has a very limited work history.   Ms. Audy advised the probation officer she was not currently abusing alcohol but that until very recently she used marijuana on a frequent basis. Notwithstanding the offender’s lack of a prior record the Pre-Sentence Report states that using the current assessment tool:

“Ms. Audy was assessed as high risk to re-offend.  The significant factors for this person are Employment/Education, Alcohol/Drug Problem and Leisure/Recreation.  Other factors that may have an impact on this case are Ms. Audy’s own victimization issues and her problem with depression”.

He then considers the appropriate sentence, and his range of options are limited by the fact conditional sentences are no longer available for impaired driving cause bodily harm.

There are a number of factors that demand consideration of an incarceratory sentence.  The circumstances of the offence are serious and the bodily harm caused by the accused appears to be permanent.  In addition, my experience sitting in Swan River suggests that drinking and driving is a serious issue in this community and the communities in the Swan River region. This includes the First Nation community where Ms. Audy resides. The Pre-Sentence Report indicates members of that First Nation community are aware of the impact of this offence on the victims.  It is important that the Court provide a strong response to this offence.

It is difficult to gauge with precision the weight to give to Parliament’s decision to eliminate the availability of a Conditional Sentence Order for this offence.  As Ms. Audy’s counsel has pointed out, the amendments do not preclude the imposition of what would normally be considered a less onerous sentence such as a fine and probation.  That being said, it is difficult to believe that Parliament’s intention was to encourage more lenient sentences for a serious personal injury offence.

As referenced earlier the R.C.M.P. suggested that at the time of the incident there was very little evidence of remorse.  However, it has been my observation that the offender’s demeanor and her statements to the Court demonstrate a high degree of remorse.

In considering whether to impose a period of incarceration, I must consider whether or not an intermittent sentence would provide the denunciation and deterrence this offence warrants.  It is my understanding that for women in Manitoba all intermittent sentences are served at the Portage Women’s Jail an overcrowded and decrepit 115-year-old facility.  A new and larger institution will be opening in the relatively near future in Headingley.

For this offender to serve an intermittent sentence she would have to travel approximately four hours to Portage la Prairie.  Given she has no car or driver’s licence and according to the Pre-Sentence Report is on Band assistance the logistics and expense involved make it virtually impossible for Ms. Audy to serve an intermittent sentence.

Due to these limitations, the judge’s hands, essentially, are tied. Sending Audy to jail can’t, or better yet, won’t work in terms of balancing the set out sentencing principles of denunciation, deterrence and rehabilitation.

In the end, Slough rules to fine her and put her on probation.

I am ordering that Ms. Audy pay a fine of $1,000 within 12 months and be placed on supervised probation for 18 months.

The conditions of that probation include an absolute curfew (essentially house arrest similar to conditional sentence without the true threat of that being converted to real jail) and community service work in the amount of 120 hours. He also adds a two-year-driving prohibition — IMO a pointless measure given she’s never had a licence and yet was driving anyway. It’s Swan River. I’m sure this happens a lot.

Jail, probation, fine. These ultimately were the options.

On one hand, one could be questioning the sentence: that somehow not sending Audy to jail lets her off the hook for injuring two people, one very badly.

On the other, one sees the pointlessness of jailing her. It won’t change a thing for her and likely won’t “teach her a lesson” as the hang em’ high crowd would crow.

But clearly, fining a woman — a young mother — on social assistance and allowing her to stay at home could be equally perceived as too lenient.

My question — to get to it an a long-winded way, is: Are there other options judges should have to deal with similar cases?

So-called sentencing circles are one thing, but that’s old news. What else?

Public shaming? Hard to do in a community where there’s virtually no media to cover case outcomes.

Public speaking? (Similar to the above…)

We all know by now that sentencing reform is well underway in Canada – typically leaning on harsher jail terms, mandatory minimums and so-called “traditional” punitive measures.

But I’m more interested in innovation and new ideas. The U.S. experience tells us that locking people up for longer and longer terms isn’t sustainable.

And the Canadian experience is that perceptions the justice system is soft on criminals is deteriorating public faith in the justice system.

The Audy case is emblematic of that. If this decision were to go into an MSM newspaper or broadcast, I can guarantee there would be gnashing of teeth and the usual call to arms for harsher this and that.

Make no mistake: violent criminals need to be separated from society for the greater good of living in peace.

But in the cases like the Crystal Audys of the world, we should be thinking of giving judges more creative ways to punish people for their bad acts.

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You do the math

In Ontario:

Ontario Provincial Police officers stopped and checked more than one million vehicles during the 2010-11 RIDE program and charged 294 people with impaired driving — virtually the same as during last year’s campaign.

In Manitoba:

In a Tuesday statement, RCMP said 20,774 vehicles were stopped during their month-long seasonal checkstop program, which ended Sunday.

Of the drivers stopped, 115 were charged with impaired driving-related crimes. That’s more than in 2009 when 108 drivers were charged out of 19,232 vehicle stops.

Virtually the same program, over the same roughly month-long timeframe. 

One huge discrepancy in the ratio of drivers stopped to drivers charged.

These numbers don’t speak well for Manitoba’s drinking and driving issue.

What would happen if our police had the resources to stop a million drivers in a month?

Conly found

It appears that Andrew Paul Conly got lost in the woods in Northern Manitoba sometime around Aug. 4 and now has been found.

He’s a little dehydrated, they say, but in otherwise good health.

A hearty ‘cheers!’ to the RCMP for their great work in finding him.

And, I have to add, for the picture 😉