David Eby - Blog

The David Ho case illuminates the challenges sex workers face in going to police, including during the period of the Pickton case, and well after. Well, it illuminates a lot of things actually, some of which raise serious questions that go beyond even the traditional barriers to sex worker reports of violence.

In a nutshell, David Ho pled guilty to an incident that involved him breaking the ankle of a sex trade worker who was trying to get away from him. He is a billionaire that lives in Vancouver. The woman escaped by scaling a 2.5m fence in only her underwear. Please note, this incident took place in late December, 2008, more than three years ago.

Merry Christmas.

Police appear to have declined to recommend charges against Ho in relation to an earlier, and undated, incident where he allegedly repeated the same behaviour with another sex worker, according to the Province newspaper, as described by David Ho himself:

“In one of the incidents, police were called to his downtown suite on Seymour Street. A woman was in his apartment. She had called police and said Ho was holding her.”

I imagine she may have a more detailed version of events.

Here’s the big question, and it’s one of the big questions of the Missing Women Commission of Inquiry. Why is it that predators appear to be given a free pass on allegations made by sex workers against them? Pickton stabbed and almost killed a sex worker, but walked free.

Ho refused to let a woman leave his home on even his own version of events (he was trying to convince her to get help), but no charges were recommended. So then, apparently, he did it again, but this time he broke the woman’s ankle. What else was planned for her if she hadn’t managed to escape?

Layering this case with complexity is the fact that David Ho is a former Police Board member, a contributor to the Vancouver Police Foundation and the Odd Squad (VPD video production team).

Will this guilty plea cause speculation, (as it has for me) about whether or not the police were reluctant to recommend charges in the original incident, and possibly other incidents, because Ho was such a powerful person, closely tied to the Police Board and Police Foundation? That the nine month delay between the December 28, 2008 incident and the September 29, 2009 charges was related to Ho’s status in relation to the police department as a donor, and the sex worker’s, well, non-existent status as a donor to the Police Foundation? Probably.

Will this revelation lead to the suspension of a dubious program in which police solicit donations from private citizens raising concerns exactly like this? Hopefully, but unlikely.

You'd be forgiven if you wondered what all the fuss was about after reading the Commission for Public Complaints (CPC) press release about the Clayton Alvin Willey death.

A guy dies of a cocaine overdose. He wasn't treated as respectfully as he could have been. The investigation took 14 months. Well, that's life.

While this summary is notionally true, it neatly ducks the fact that Willey entered the Prince George police detachment garage fully hog tied. He left with shattered ribs, with multiple bruises and cuts, and having been Tasered repeatedly. He was unconscious. He died on the way to hospital. The fifteen minute video of most of the incident is here (temporarily removed by CPC, working to restore it, hang in there!).

And this all happened eight and a half years ago.

Is this case really about a cocaine overdose?

The CPC actually found a litany of offences in relation to RCMP conduct towards Clay Willey, but don't bother looking for it in the press release. It's in the hyperlinks. Despite the multiple findings, the CPC doesn't recommend the file be forwarded to Crown for consideration of criminal charges.

As is typical for the CPC, they ignored the history of violence (starting at paragraph 133 in the link) of one of the arresting officers, Constable Graham. They ignored the history of destroying videotape (starting at paragraph 290) around incidents involving these very same officers at the same detachment, holding that inexplicably "missing frames" and "technical" failures in the video record of Willey's death are irrelevant.

Instead, they recount, breathlessly, the statement Constable Graham prepared with a lawyer 36 hours after the incident as authoritative, and found statements by two civilians without a criminal record for assaulting prisoners "lack[ed] any credibility" in comparison.

The fourteen-month delay ever so gently criticized in the press release is a drop in the bucket in an eight and a half year investigation. Fourteen months is only the length of time the RCMP took to "review" this file and return it to the CPC. It would have taken longer, but the BCCLA issued a press release to shame the RCMP (PDF) into releasing it, or shame the CPC into reminding the RCMP to send it back, or both.

The CPC criticism of the RCMP delay of more than a year is hard to even read as a direct criticism thanks to creative use of the passive tense that avoids assigning responsibility to the RCMP: "The CPC maintains that these delays are inappropriate and impede the public complaint process."

The failures of the CPC let down the RCMP as much as any individual member who breaks the law does. I can't imagine what it's like to work as an RCMP officer with integrity beside an officer who destroys videotape, or who has been criminally convicted of assault for kicking in the face of a prisoner, breaking bones and teeth. Is it scary? Depressing? Disheartening? No big deal?

What is it like to work in the CPC and find your research turned into a press release that calls shattered ribs "disrespectful" and insults civilian witnesses, instead preferring the evidence of discredited police officers unless there's irrefutable video tape? More of the same? Enraging? No big deal?

The CPC has failed everyone, and will continue to fail everyone, the family of Clayton Willey included, unless the Federal government acts to reform them, and now.

It's hard to imagine an area more difficult for politicians talk about than drug policy reform.

Maybe raising taxes.

Today, B.C.'s Health Officers council gave the politicians some breathing room by issuing a report that calls for a provincial dialogue on reforming drug law in Canada and B.C. Not exactly a group of flaming radicals, the Health Officers Council is the professional association of public health physicians in B.C. They issue reports on the health impacts of, for example, driving while using your cell phone.

Ten years ago, few people could have imagined a functioning facility where nurses would supervise addicts injecting heroin, morphine and cocaine to make sure they didn't kill themselves in the process; that it would be supported by the health authority, municipal government and provincial government.

Similarly, ten years ago, few people could have imagined a study that looks at the outcome of prescribing heroin and hydromorphone to people who have failed at drug treatment. There has been one already. The second study is underway. Both in British Columbia. Both in Vancouver.

Today the majority of Canadians support Insite. British Columbians support drug policy reform that makes us safer and healthier, and have linked our endemic gang violence to the drug trade. But that hasn't been enough so far to open the door to even a discussion of reform and decriminalizing drug addicts. If anything, our drug law is going the other way, with tougher penalties and more jail time for addicts, despite the American experience.

There is now a little more space for those in positions of power to take up the Health Officers' call for a public discussion about what's working, and what's not working, in our current drug policy. Just a discussion. Hopefully, in ten years, we'll look back and shake our heads at the inability of our society to even discuss how we could improve our drug policy's effectiveness to increase safety, reduce harm, and reduce costs. Talk about reefer madness.

Vancouver lawyers Jason Gratl and Michael McCubby have negotiated short-term relief for Occupy Vancouver with some tight timelines and restrictions. It seems that the full injunction application won't be heard until November 16 at 10 a.m. In the meantime, OV needs to abide by the Fire Department's strict conditions.

From all reports, the Occupy near-death experience appears to have awakened a can-do spirit at the camp, with Occupiers re-constructing the site to comply with the Fire Department's order.

The City, of course, does not need to wait for the injunction to send staff in without a police escort to seize the tents on the site. However, city staff are likely unwilling to take that enforcement step without a police escort, and Chief Chu has been clear that he would prefer a situation where an injunction and enforcement order are in place.

Chief Chu could certainly change his mind at any time and decide to escort city staff without an injunction, or issue bylaw tickets to all of the campers, but it appears he, like all of us, is hoping that this matter can be resolved without the risks that come with confrontation between police and protesters.

There's been lots of chat and considerable misinformation on the Occupy Vancouver Twitter feed about the state of the law. Consider this an unsolicited legal FAQ on some key protest legal issues.

This is general legal information and a good dose of speculation. Those in legal jeopardy should consult a lawyer and provide the lawyer with all the background facts his or her lawyer will need to advise appropriately.

Is there a right to have political structures like tents? 
Yes. The B.C. Court of Appeal held in the Falun Gong case that a complete prohibition by the City of Vancouver on structures with expressive political meaning was unconstitutional. The City's redrafted bylaw is now subject to a second constitutional challenge as too restrictive and not being rationally connected to the stated goals of public safety and public access to property.

Does that mean that the Occupy Vancouver tents are legal?
Not necessarily. Key to the Falun Gong decision was that the Falun Gong were not blocking the sidewalk and that the structure presented no structural safety issues. Without commenting on the obvious challenges of making this case, the Occupy Vancouver tents would need to be demonstrated to be presenting no or limited public safety issues, and not unduly restricting pedestrians and/or other uses of public space in order for them to meet the fact pattern of the Falun Gong case where the structures were permitted by the Court.

If OV can't demonstrate that the tents aren't a risk and aren't restricting access to public space, does that mean that OV has to remove all their tents?
A situation like that would mean that the Court, on an injunction application, is very unlikely to refuse the City's request that the tenters be removed. This injunction can be enforced by police. Refusal to adhere to the injunction, including returning to the site after an initial arrest, could result in criminal contempt of Court findings, which could result in imprisonment. See Cameron Ward's comments on that process here. This was the exact mechanism used to detain and imprison activists around the Sea to Sky Highway expansion. In short, OV would have to remove all the tents or have the tents removed for them, or, ultimately, face jail.

However, for many reasons, including likely political support for some of the goals of the Occupy movement generally, as well as a strong desire to avoid an unnecessary confrontation, the City is willing to go beyond their bare constitutional requirements and appears willing to permit political structures on the site that could interfere with some other uses of that public space, including permitting various organizational structures like the "media tent" and "food tent" and so on. The core concern from the City appears to be the residential tents.

In summary, and without wishing to impose my own views on OV, there appears to be a clear choice for OV right now between some compromise and continuing to hold the site (negotiation), or no compromise and arrest(s) as a political statement (City injunction process).

What would likely charges be?
Most of the charges those arrested at OV would face after the injunction would be related to criminal contempt of Court. This would likely be a last resort by the City, as the City would have to ask for these kinds of charges. The penalties for contempt are serious and usually involve jail for people who refuse to refrain from returning to a disputed site.

"Assault by Trespass" charges are restricted for those who actively resist being removed from a site. Passive resistance (going limp and being carried off site) does not qualify under the case law for these charges, and these charges are not common. (Section 41(2))

"Mischief" is always a popular charge, and involves preventing an individual from using his or her property. (Section 430)

"Assault Police" is very common in the melees around mass arrests, and is a very serious charge. Legal Observers often go a long way to disputing allegations of assault police when the "assault" is demonstrated not to have taken place through video. (Section 129)

"Breach of the Peace" is also very common in protests. This is not a chargable offence, so there is never a trial or formal criminal record; however, it is an arrest power that allows police to arrest those breaching the peace or those imminently about to breach the peace, and hold them until the breach is resolved, but not longer than 24 hours. (Usually a period of one to four hours, including processing at the jail.) (Section 31)

I enjoyed this open letter about the environmentally damaging Fish Lake "Prosperity" Mine proposal written by Chief Marilyn Baptiste of the Xeni Gwet'in First Nations.
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Dearest Mike Pederson, Regional Manager, Ministry of Forests and Lands and Ken Vanderburgh

Tsilhqot’in Statement of Commitment to protect the land that sustains us and our future generations
Williams Lake, BC, November 2, 2011:

Today marks the anniversary of the Federal Government’s decision rejecting the Prosperity Mine proposal and protecting the environment, waters, fish and fish habitat, grizzly and grizzly habitat and our constitutionally protected rights as First Peoples in our homelands. Once again, we thank the Minister of Environment Jim Prentice and the Federal Government for protecting the public interest and for upholding the rights of First Nations under the Canadian Constitution.

Unfortunately, this dire threat to our people, our lands and our way of life as Tsilhqot’in people continues to this day. The proponent has already submitted a proposal for “New” Prosperity, a mine alternative that it has described in the past as even more environmentally damaging. At the same time, British Columbia recently issued approvals that authorize the proponent to extensively drill, build roads and clear trees throughout this area of such critical importance to our people.

The Tsilhqot’in Nation considers the approvals issued by British Columbia unlawful because of the Province’s failure to meaningfully consult or accommodate our Nation or to justify the impacts on our proven Aboriginal rights to hunt and trap throughout those lands. We remain confident that the Federal Government will continue to do the right thing and once again reject this clearly unacceptable mine proposal.

On this, the anniversary of our successful defence of the lands and waters that sustain our people and our culture, the Tsilhqot’in Nation stands united in its sacred commitment to our ancestors and to our future generations – we will honour and we will protect the lands that give us life.

TEN REASONS WHY THE PROSPERITY MINE BID WILL FAIL
Tsilhqot’in National Government

Investors hoping to cash in on Taseko Mines Ltd’s second Prosperity Mine bid should think back a year. Despite assurances from the company and its president that it would proceed, the company’s original bid was soundly rejected by the federal government and share prices plunged.
Once again, there is a proposal before the federal government’s Canadian Environmental Assessment Agency (CEAA) and the company’s president is saying he is confident it will be approved.

And once again the federal government has no choice but to reject it. Here are 10 reasons why.

1. The company knows its new option is worse than the one that was rejected last year. Here are just two quotes that show it knows it cannot save Teztan Biny (Fish Lake) – only prolong its death throes:

``Developing Prosperity means draining Fish Lake. We wish it were otherwise. We searched hard for a different way. A way to retain the lake and have the mine. But there is no viable alternative. The lake and the deposit sit side by side. It is not possible to have one without the loss of the other.”
- Brian Battison, V.P. Corporate Affairs, Taseko Mines Ltd. Opening Presentation at the CEAA Review Panel Hearings, March 22, 2010

“What happens to the water quality in Fish Lake, if you try and preserve that body of water with the tailings facility right up against it, is that over time the water quality in Fish Lake will become equivalent to the water quality in the pore water of the tailings facility, particularly when it’s close.”
- Scott Jones, V.P. Engineering, Taseko Mines Ltd. Panel Hearing Transcript, CEAA Reg. Doc#2253, v.29, p. 5450

2. The CEAA review panel report was not almost the same as the BC EAO rubber-stamp decision. Not even close. The CEAA review panel report found irreparable, devastating impacts to the local fish stocks and endangered grizzly populations, and to the existing and future rights of the Tsilhqot’in and its youth. The problems were so serious that then Minister of the Environment Jim Prentice described the report’s findings as “scathing” and “probably the most condemning I have ever read.”

3. This is not a new proposal and does not address the issues. It is Mine Development Plan 2, which the company reject lasted year, and which the federal review panel rejected in its report: “The Panel agrees with the observations made by Taseko and Environment Canada that Mine Development Plans 1 and 2 would result in greater long-term environmental risk than the preferred alternative.” Federal Review Panel Report, p. 65

4. TML states on page 20 of its new project description that it is submitting the previously rejected second alternative. Quote: “Option 2 is the basis for the New Prosperity design …The concepts that lead to the configuration of MDP Option 2 have been utilized to develop the project description currently being proposed.”

5. The new $300 million in spending is not for previously unheard of mitigation to make this alternative acceptable. TML states in its Project Description: “The new development design, predicated on higher long term prices for both copper and gold, would result in a direct increase in capital costs of $200 million to purchase additional mining equipment to relocate the tailings dam and to move the mine waste around Fish Lake to new locations. This redesign also adds $100 million in direct extra operating costs over the 20-year mine life to accomplish that task.”

6. The federal government is required under the Constitution to protect First Nations, which have been found to be under serious threat in this case, and is internationally committed to do so under the United Nations Declaration of the Rights of Indigenous Peoples. This resubmitted plan places even more onus on the federal government to live up to these duties.

7. To approve this mine would show the EA process is meaningless, and would demonstrate that governments are ignoring their obligations - as the Assembly of First Nations made clear this summer in a national resolution of support for the Tsilhqot’in.

8. The federal Department of Fisheries and Oceans has opposed this project since it was first raised in 1995. It soundly rejected it again last year. It has no reason to support it now, nor does the Ministry the Environment, which, as the federal Panel report notes, found last year that Option 2 would be worse than the original bid.

9. In our view, the project cannot get federal approval. The question is will it be rejected on Nov. 7 when CEAA announces next steps, or will be first have to go through a pointless, costly and divisive new review.

10. Natural Resources Canada estimates there are $350 billion - $500 billion worth of potential projects on lands that involve aboriginal Title, claims and rights. It makes no sense for governments, industry and investors to back this bad, confrontational proposal and rebuff efforts by First Nations to find a way to create a better mining system.

Marilyn Baptiste, Chief
Xeni Gwet'in First Nations Government
Nemiah Valley, BC

A friend of mine from the DTES passed away a couple of weeks ago. I was in denial about the whole situation; I got the flyer for his memorial ceremony and then didn't go. Blocked it out. Sorry Dwayne.

Dwayne Koe was a great guy, a proud Inuit man named Haluk, who faced struggles few of us can imagine. He was one of our two plaintiffs in the litigation to keep the Main Street tent city open. His co-plaintiff, Noah, passed away months ago. Both of them remained homeless or near homeless until their last days.

Dwayne is an example of a guy who would have hugely benefited had the province implemented the Frank Paul Inquiry recommendations around sobering centres and identifying and treating chronic, street involved alcoholics. He would probably be alive today if those recommendations had been implemented. They have not been.

So what we're left with are memories of Dwayne's guitar playing and improvised songs at every major housing protest, every Curtis Brick memorial. At the last one I recall, and the one mentioned most frequently online, he sang a song called "We are One." He's left some carvings too, here's his "Drummer Singing with a Shaman" carving, currently selling online for $695.


Here are his words to UN Special Housing Rapporteur Miloon Kothari during the Rapporteur's visit to Vancouver: "Its not people, it’s the system. Because of the residential school system, I have suffered. My dad’s been there, my mom’s been there. When I was eight years old I watched my dad kill my mom because he felt powerless. When people talk about shame, I feel it every day."

Despite that inter-generational trauma, Dwayne managed to be cheerful, happy and loving, a man who died far too soon and who carried a burden few of us can imagine. We miss you already Dwayne.