David Eby - Blog

The gang up at the Missing Women Commission is still after lawyer Robyn Gervais who told it like it is, and left the Inquiry.

Yesterday morning Darrel Roberts, Q.C. went on the CBC Early Edition to say what a great job Robyn had done, but how she misunderstood the terms of reference and what a lawyer's job is.

In the interview, Mr. Roberts alleged that Robyn had a single-minded focus on systemic racism in her issues analysis, and as such had failed as a lawyer to do her job properly:

I have a bit of a different view about the role of counsel [from Robyn] when you're on a proceeding. And her role, like the role of any counsel, is to be there to pry into, to inquire into, all issues.  Robyn has appeared to want to focus entirely on issues that might relate to a systemic bias against First Nations people. 

However laudable that is, and it is indeed an important matter, nevertheless you have to remember that the first order of business of this inquiry is to inquire into the conduct of the police investigations...that's term of reference #1, and we haven't finished that business. I wanted to be more free to deal with that issue...

It's important to note that, until the end, Robyn was assisted by Brian Baynham, Q.C., himself a respected senior lawyer in Vancouver. The odds of her failing on the scale identified by Mr. Roberts while being assisted by Mr. Baynham, failing to comprehend what lawyers are supposed to do and what the terms of reference of the Inquiry are, is difficult to imagine.

Mr. Roberts then went at Gervais again, undermining her by labelling her as a "very" junior lawyer who is good, but still narrow minded, and making the wrong decision in pulling out:

I've been before the bar since 1965. Robyn is a very junior lawyer, and she's good by the way, and she's doing a good job. It'd be good if she could broaden her perspective, that's all. I'm actually even hopeful she might reconsider and come back.

One might expect to hear comments like this from a lawyer for the other side at the Inquiry, but Mr. Roberts started the Inquiry as Robyn Gervais' lawyer, assisting her with Bryan Baynham in preparing for the hearings.

This means he's going after his former client, in public, on the radio, to attempt to rehabilitate the Inquiry, something that would benefit his current client who has decided to stay in the Inquiry.

Remarkable. Hang in there Robyn.

Commissioner Oppal finally ordered the Shenher book disclosed at the Missing Women Commission of Inquiry. But first, he's given the lawyer for Shenher the chance to go through and remove all of the "private thoughts" of the author and thoughts about what she would do differently. 

I have a feeling I know what the final product is going to look like:


For those of you not familiar with it, the Shenher book is the tell-all book written by the lead VPD investigator about the Pickton investigation expressly for publication by a major Canadian publisher, McLelland and Stewart.

Private thoughts? You've got to be kidding me. She must have the most remarkable lawyer available in Canada to convince the Commissioner she wrote thoughts she didn't want shared in a book she surely hoped would be a best seller.

She also wrote a script for TV. Which I assume was for private screening in her living room, as her one vanity press copy of the book printed by Canada's largest book publisher sat on the coffee table.

I don't want to harp on this, but as this has turned into an Inquiry about how police do investigations, having little to do with the missing women, the first term of reference of the Inquiry has assumed a remarkable and overriding importance.

That term of reference is as follows:

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.

I'm no Commissioner seeking truth, but if the lead investigator of the missing women investigations wrote a book about the conduct of the missing women investigations, her so-called private thoughts about the players, and what she'd do differently, I'd like to have a look at it.

It took the Commissioner three months to order the book released. Now he doesn't even want the useful information the book contains from the person who lived the investigation every day. Come on.

The Missing Women Commission of Inquiry was busy last night building their case against lawyer Robyn Gervias, who had announced her intention to quit the Inquiry yesterday afternoon.

Gervais was one of the two lawyers appointed by the Commission when the ratio of 25 publicly funded police/government lawyers against 2 publicly funded family lawyers became a bit too embarrassing to bear. Her role, although she had no clients, was to represent the voices of Indigenous women at the Inquiry.

This morning, Gervais gave her moving account of continual frustration with day after day of police witness testimony and an absence of any First Nations witnesses there to speak specifically about Indigenous experiences reporting to police. She recounted the straw that broke the camel's back: A refusal by a lawyer for the Commission to give her just four days for her witnesses on the subject matter of the Inquiry.

Here is the text of her remarks.

She was then met with not one, not two, but three long speeches about what a jerk she was for pulling out.

"I am very disappointed," said Commissioner Oppal, who reminisced about the time he gave Ms. Gervais career advice, and told her he had always supported her. He reminded her that three of the witnesses to date had incidentally been aboriginal, two family members and sex worker advocate Jamie Lee Hamilton, who is Metis. Gervais' reply that no witnesses were called to speak specifically about Indigenous experiences in reporting to police was not met with enthusiasm.

Commissioner Oppal then said that her suggestion (although she had suggested no such thing) that police witnesses not be called, or be barred from the room, was not how the Inquiry process worked.

Commissioner Oppal then finished, without irony, saying all Gervais had to do was to make an application to him for her witnesses.

He didn't mention the application by the families for the various witnesses they wanted, which he still hasn't ruled on months after receiving it, unless you count the leak a senior commission lawyer made to the National Post that none of the witnesses would be called.

A junior Commission lawyer then came to the mic and expressed her shock and surprise that a lawyer purportedly representing Indigenous women's interests could be dissatisfied with the process. She then pulled out a personal e-mail from three weeks ago sent to her by Ms. Gervais, read one sentence from it, and suggested it reflected broad satisfaction for Ms. Gervais with the process to date. She noted she was well versed in aboriginal interests, as she had herself practiced aboriginal law at one point.

Joining the pile on, Darrel Roberts, Q.C., who it should be noted is a white, wealthy, and well respected senior personal injury lawyer, then said that the Indigenous lawyer in front of him was wrong, as were the Assembly of First Nations and the Union of B.C. Indian Chiefs who had already pulled out, in that they didn't know what First Nations people wanted, but he did. He knew that Canada's Indigenous peoples wanted the Inquiry to continue.

He didn't mention that he'd originally been on Ms. Gervais' team early in the inquiry, and had been fired by Ms. Gervais for reasons unknown, which may or may not have coloured his remarks.

But the most telling point of all was when Ms. Gervais had clicked off her microphone and turned to the back of the room. Without missing a beat, junior Commission counsel said, "We'll pick up where we left off yesterday..." and the Commission kept rolling.

Because Commissioner Oppal insisted on the last word at the Inquiry, I'll put in Robyn's words that resonate the most with me and will lead the news tonight, as I think she's in the best position to know these things, with all due respect to Commission Counsel, Commissioner Oppal and Mr. Roberts, Q.C.:

"Aboriginal interests have not, and will not, be adequately represented in these hearings...Given that these hearings were about missing aboriginal women, I didn't think I would need to fight to have their voices heard."

At the Missing Women Commission of Inquiry, Commissioner Oppal issued his long, long awaited order on document disclosure. Read the order here (PDF).

He decided not to order any documents.

Issued on a Friday afternoon, the order had a decidedly judicial "get lost" tone and refused to order the RCMP and VPD to hand everything over, perferring, instead, to let police hand things over slowly, and hope for surely.

What was most remarkable was that the order didn't deal with the most important document to date, lead VPD Investigator Shenher's book that she wrote on the exact topic of the Inquiry: the failures of the police investigation into Pickton.

The Commissioner was asked months ago to order the release of the book by the lawyers for the families.

The Commissioner has not hesitated to strip the survival sex worker who was stabbed by Pickton of her anonymity and to set her up for cross examination by 25 police and government lawyers. However, his lengthy consideration of whether or not to order the book disclosed appears to suggest he is concerned that the privacy rights of those named in Shenher's book (which was to be published by a major Canadian publisher) might be violated if the book were released to lawyers at the Inquiry.

While the Commissioner has not hesitated to set aside the rights of this incredibly marginalized woman to continue to recover from being almost killed by Canada's worst serial killer, he declined to order that the provincial prosecutors hand over the "missing" file that explained why Pickton wasn't charged for stabbing her.

Order a marginalized women to be cross examined; don't order a female police officer to disclose books she wrote on the topic she had a publishing deal to print.

Order a survival sex worker to disclose her tortured personal history in front of 25 lawyers who aren't there to protect her interests; don't order the Criminal Justice Branch to hand over a government file.

Privacy is not a two way street at this public Inquiry.

My remarks from last night's instructive, inspiring, creative and bizarre Petcha Kutcha night at the Vogue Theatre. The premise is 20 slides, 20 seconds each. 10 different presenters.

This is what I said to accompany the slides I displayed, with hyperlink references to the facts and/or relevant transcripts from the inquiry.

Thanks to Steve and Jane from Cause and Affect for organizing this wonderful event, and to everyone who came; it was standing room only. Amazing.
----------------------

For every Valentine’s Day since 1991 the women of the Downtown Eastside have marched to demand justice for their missing and murdered sisters.

In 2002, 11 years after the first march, and 4 years after receiving credible information about Pickton, the RCMP searched his farm and found the remains of 33 women.

The women of the Downtown Eastside, and the whole community, demanded a public inquiry into why it took so long to end the killing.

This is a six minute briefing on what has happened since then. A briefing on what lawyer Cameron Ward, acting for the families, calls a cover up… and a whitewash.

19 years after the first march, an inquiry was finally called. But the marchers were not satisfied, for 3 reasons.

First, the terms of reference did not ask why these murdered women were survival sex workers. There would be no witnesses about housing, drug addiction, exiting the sex trade, or harm reduction.

Second, the government appointed Wally Oppal the Commissioner.

When in government, Oppal had cut services for vulnerable women. He supported the decision to cancel 20 of the 27 criminal charges against Pickton.  He opposed a public inquiry, saying that not much would be learned from it.

Third, it wasn’t a fair fight. 25 lawyers would be publicly funded to represent police and government interests. 10 police officers would be represented by 10 publicly funded lawyers.

No lawyers would be funded for the women who had demanded this inquiry.  Two lawyers would be funded to represent 25 mourning families.

Embarrassed by a ratio of 25:2, the Commission quickly hired two more lawyers. One lawyer to speak for aboriginal women. One to speak for the Downtown Eastside community.

While both are good lawyers, the Commission did not give either of them any actual clients from either of those communities.

The Native Women’s Association of Canada and the Downtown Eastside Women’s Centre responded by filing a complaint with the United Nations [PDF Link] and pulling out of the inquiry. The media reported that the women’s groups pulled out because they weren’t funded.

Behind me are photos and portraits of the women whose DNA or body parts were found on the Pickton farm.

In setting procedural rules, the Commissioner decided police and government lawyers could ask any questions they wanted.

But public interest groups like the B.C. Civil Liberties Association, Pivot, and Amnesty International could only ask questions if the Commissioner gave permission first [at page 17]. He called it “limited standing”; an efficiency measure.

The decision meant that the public interest lawyers would have to give advance notice of their questions to the police and government lawyers. But the police and government lawyers would not have to give notice of their questions to the public interest lawyers.

The remaining public interest groups then also pulled out.

The lawyer for the Downtown Eastside asked for a blanket order for vulnerable female witnesses to be protected [at page 43] by default.

The Commissioner then gutted the proposal. If these vulnerable witnesses wanted protection, he held, they could have a lawyer defend them against requests to waive the privilege. It was the legal equivalent of “let them eat cake.”

The lawyers for the VPD then argued that sexual predators named in the Inquiry documents should be protected by default, even if they’d been criminally convicted.

The Commissioner agreed, the police obtaining the blanket protection they had opposed for survival sex workers for people convicted of assaulting those same sex workers.

For example, a volunteer for the Chinatown community policing office [at page 51] was stopped driving the stroll by the VPD during the height of the disappearances.

He was wearing his mother’s nylons, but also a balaclava with the mask rolled up. In his trunk: handcuffs, duct tape, and a large butcher knife. He refused a polygraph and was not investigated further. His name is protected.

Even though they are the only two publicly funded lawyers with clients, requests by the lawyers for the families have been ignored.

Four months after the families first asked, the Commissioner still hasn’t ordered the VPD’s lead investigator to produce a book she wrote about the VPD investigation, exactly the topic of the Inquiry.

In 1997, Pickton stabbed a woman in his trailer at 2 a.m. She escaped wearing handcuffs on one wrist. The Crown dropped the charges, and Pickton never went to trial.

When the families’ lawyers asked for the file that explained why the charges were dropped, they were told the file had disappeared.

In December, the lawyer for the families asked for new witnesses to be called. 2 months later, Commission staff leaked to the National Post that none of the family’s witnesses would be called.

The families had asked for Bill Hiscox and Russ Caldwell. Both had gone to the RCMP with tips on Pickton in the late 1990s, and both were ultimately dismissed as not credible.

They asked for David Pickton, the brother of Robert Pickton. And Pat Casanova, whose DNA was found on the bodies of murdered women at the farm. 

Not one of these men is on the witness list.

Three months on, there has still been no formal decision by the Commissioner about whether these witnesses will be added.

Issues of corruption are not being pursued.

An off-duty RCMP officer who visited Pickton and gave him the names of police informants is not on the witness list.

The RCMP officer who agreed to David Pickton’s request to put off an interview of his brother for six months is not on the witness list.

Issues of organized crime are not being pursued.

Anthony Terazakas worked the door at “Piggy’s Palace” during parties that off duty police officers attended, across the street from a Hell’s Angels clubhouse.

Terezakas was arrested for torturing people at the American Hotel and is in jail. He’s a Hells Angels associate. So is David Pickton.

When the lawyer for the Downtown Eastside community asked a police witness if the Hells Angels presence on the farm may have deterred women from reporting Pickton to the police, the Commissioner stopped the lawyer and invited a lawyer for the RCMP to stand up and object [at page 54].

When she didn’t, he then said the issue was not relevant.

This is the last picture. It is a police composite of Jane Doe, her remains were found on the farm.

Like her, the women at risk in the future because of the failures of this Inquiry have not been identified.

Even if we cannot yet identify the victims, we are witnessing yet one more tragedy for these missing and murdered women, and their sisters who march for them.

I think it's crazy that you can't have a beer while watching a movie, especially if everybody in the theatre is 19 years of age or older.

I'm not sure what the moral logic is that says stripping and drinking, ok; opera and drinking, ok (but just in the lobby); rock 'n roll dancing and drinking, ok; but movies and drinking, that's where we draw the line. Let's shut down that highway to moral decay.

If you agree with me, I have an invite for you. Incidentally I was asked to host a Cinema Salon at Vancouver International Film Festival Theatre (Vancity Theatre) (the theatre so nice, they named it twice) on March 6 at 7:30 p.m.

I chose classic 1990 youth angst film Pump Up the Volume, which inspired me off to college radio to "steal the air" for my two listeners. The movie made a lifetime independent radio fan of me, and at the same time delivered a lifelong appreciation for Samantha Mathis, who played Nora and for Leonard Cohen. The film also inspired a healthy caution about government regulation of free speech and media concentration, and the controversial idea that those in power may need to be accountable to those they serve.

The movie is notionally about independent radio, but the ideas transition so well to the Internet, which in 1990 was nothing but a twinkle in Al Gore's eye.

Although I picked the movie for countless reasons, I'd like the screening to be a quasi protest of the absurd liquor laws which have caused endless confusion for the Rio and for the VIFF, as well as endless expense for "consultants" they must employ to try to figure out how they can let people have a drink while enjoying a movie.

BCCLA has issued a press release about the issue, but I'm hoping you come to the VIFF on March 6 to sign a petition, enjoy a classic film, (maybe?) enjoy a drink, and bring yourself up to speed about how you're being protected from yourself at huge expense for no obvious reason.

Tickets available here, regular movie prices apply.

I've been forwarded (anonymous sources abound) an e-mail sent out by Cameron Ward to lawyers at the Missing Women Inquiry who work for the Commission, and who represent various interests at the Commission, to ask what happened to his application to have critical witnesses like Bill Hiscox and David Pickton called to the Inquiry.

Cameron Ward and Neil Chantler represent the families of the women who were murdered on the Pickton farm. Here's a PDF of the Application itself, if you're curious.

The questions Ward asks in his e-mail seem reasonable given that the National Post has now published three times that:

• the application has been decided;
• the Commission will not call these critical witnesses;
• all of the lawyers acting for non-police / non-government interests I've spoken to weren't notified of the decision and nothing has been said in the hearing about it; and, 
• most recently, that the information that the application was decided secretly and not announced was leaked to the reporter from a "senior commission counsel."

One can understand how the lawyers for the families in this mess might be wondering what had happened. Here's Cameron's e-mail, for the record.

--------------

From: Cameron Ward [mailto:cward@cameronward.com]
Sent: Friday, February 17, 2012 10:01 AM
To: 'Tobias, Cheryl'; 'Harman, Malea'; 'Armstrong, Sarah'
Cc: [Internal Commission Staff e-mails deleted] 'Boire, Sandra'; 'Brongers, Jan'; 'Bryan Baynham'; 'Bryan Baynham'; 'Chantelle Rajotte'; 'Cindy Brandes'; 'Claire Hatcher'; 'Darrell Roberts'; 'David Crossin'; 'E Greenspan'; 'Elizabeth France'; 'Greg'; 'Heather McLellan'; 'Hoffman, Judith'; 'Irwin Nathanson'; 'Janet Winteringham'; 'Jason Gratl'; 'John Boddie'; 'Judy Thompson'; 'Kevin Woodall'; 'Leonard Doust'; 'Mark Skwarok'; [Internal lawyer e-mail deleted]; 'Michael Feder'; 'N Adams'; 'N Adams'; 'Neil Chantler'; 'Ravi Hira'; 'Richard Peck'; 'Robyn dean Gervais'; 'Salima Samnani'; 'Sean Hern'; 'Seth Cooper'; [Internal lawyer e-mail deleted]; 'Tim Dickson'; 'V Christie'

Subject: RE: MWCI - National Post article, February 17, 2012

Dear Counsel;

As you know, we spent some effort in attempting to bring an oral application for additional witnesses, and then by complying with the Commission’s direction to submit the application in writing, which we did before Christmas.  The National Post is today reporting, for the second time, that, “Mr. Oppal has yet to rule on [the application]; however, a senior commission counsel has told the National Post it will be denied.”  See:

http://news.nationalpost.com/2012/02/17/david-pickton-sightings/

The first time this statement was published, we hoped that the reporter was mistaken.  However, this most recent report compels us to request an explanation from Commission Counsel.

Has our application for additional witnesses been denied?  Has a senior commission counsel indeed made the statements attributed to them?  If so, who is responsible for this apparent lapse in judgment?

Please respond in writing.

Regards,

Cameron Ward
A. Cameron Ward & Company
Barristers & Solicitors
58 Powell Street
Vancouver, BC
V6A 1E7