I’ve been meaning to write for months. Unfortunately, though well intentioned, the hours have turned to days, days to weeks and weeks to months. Each time I’ve sat to write on the latest issue, it has become stale dated and not worth the ink (or the bits, as the case may be). However, the April 30th, 2010 story in the National Post, “Bogus RCMP Wiretap Memos Derail Drug Case” continues to leave a bad taste in my craw; and though I realize many have already commented on the issue, I nevertheless feel a brief additional word is worthwhile.
As a former Crown Prosecutor, now criminal defence lawyer, I have the grave misfortune of working in a job that permits access to a world of information not known by the general public. I spend my days forging through disclosure in criminal cases, and notwithstanding I am pleased to tell you most cases involve information conveyed by honest and reliable players in the disclosure process, I am displeased to tell you there are indeed occasions where this is not so.
In Canada, disclosure issues range from innocent omissions of pertinent but relatively innocuous information to the intentional withholding or fabrication of important material germane to the accused’s ability to make full answer and defence. Fortunately, most disclosure issues fall within the innocent omission category. Innocent omissions that go undiscovered may nevertheless have a dramatic impact upon an accused’s right to a fair trial.
Disclosure issues do not only occur in the so-called high profile cases, but happen in ever day ones as well. The vast majority of the time these occurrences do not find their way into the spotlight of public attention. On most occasions, problems are rectified in a timely manner prior to the conclusion of the trial; oftentimes, however, they are not. It is not unusual for disclosure problems to be ignored by timid defence counsel or minimized by Prosecutors taking the view that inquiries are more akin to irrelevant fishing expeditions than legitimate requests aimed at full answer and defence. Sometimes disclosure issues are marginalized by trial judges who can’t find quite enough evidence to call foul or enough courage to cry it.
Naivety in criminal justice is an essential tool for protecting the system from being disgraced from within. After all, if we start believing lawyers incompetent, judges politically motivated, police liars, then what confidence can we have convictions are necessarily right? In Alberta, it is not unusual for inexperienced defence lawyers to take complex and serious cases far beyond their competency level. It is not unusual for Crown Prosecutors to run cases on the basis of some policy or learning objective not truly connected with the public interest or reasonable prospect of conviction. It is not unusual for police to gather specific evidence aimed at a target whilst ignoring inquiries that might exonerate the subject. It is not unusual for judges, who as lawyers had neither criminal law nor trial experience to hear cases and make decisions directly affecting the liberty of persons or perhaps even the Constitutional rights for all Canadians. Notwithstanding the short term benefits of bending what are often perceived as pedantic and impractical rules to secure a particular end may seem compelling to justify convicting an alleged wrongdoer, the long term impact of such noble cause corruption may be difficult to foresee.
Wrongful conviction is the ultimate consequence of a breakdown in the criminal justice system. The much publicized wrongful conviction cases of David Milgaard, Thomas Sophonow, Guy Paul Morin , Randy Druken, Kyle Wayne Unger, Herman Kaglik and William Mullins Johnson (just to name a few) remind us about the devastating toll inflicted by the criminal law upon innocent Canadians. These people were convicted of serious crimes and spent significant time in jail. To appreciate the horror, imagine spending just one day incarcerated, and then multiply that horror times twenty-three years. Twenty-three is the number of years Milgaard spent behind bars. Milgaard’s conviction was driven by a combination of factors, including the erroneous eyewitness identification of his friend, Nichol John. After acquiring Nichol John’s evidence, police ignored the more viable candidate, Larry Fisher. Of course, Larry Fisher was ultimately convicted for the slaying of Gail Miller.
In September 1996 an inquiry was launched into the wrongful conviction of Guy Paul Morin. The inquiry determined that police, prosecutors and forensic experts had been inept at best and at worse might have fabricated or altered evidence. Recently, William Mullins-Johnson was exonerated after a twelve year ordeal. The government’s forensic expert, Dr. Charles Smith, was responsible for his conviction.
See “Wolf in Sheep’s Clothing – Advocates as Experts”: http://www.calgarydefence.com/resources/
As Canadians, can we tolerate a system responsible for wrongly convicting anyone? With that in mind, it is worth asking: how many wrongful convictions have occurred in the innumerable minor criminal cases occurring each day across Canada? In my view, it would be extremely naive to believe the answer is even close to none? How many convictions have been obtained on the basis of honest but mistaken eyewitness identification, expert opinions by police officers or other agents paid by the government, false confessions, the suppression of evidence, the fabrication of disclosure or any number of other errors in criminal justice? You might even ask, how many guilty pleas were entered by accused persons on the basis of a simple cost-benefit analysis where the danger of losing at trial, or spending time in custody awaiting trial was simply too great to ignore a respectable plea bargain offered by the Crown?
It is for all of the aforementioned reasons that I am both disturbed and shocked about the story in the National Post: “Bogus RCMP Wiretap Memos Derail Drug Case”.
I am shocked because the behaviour discussed in this story is that which dramatically increases the likelihood of wrongful convictions. My concern is not so much about the kind of information fabricated, but that is was.
This news release tells a tale about a senior R.C.M.P. officer (Sgt. Roskam) who intentionally fabricated disclosure.
In November 2009 Sgt. Roskam was cross-examined by defence counsel Michael Lacy in an Ontario drug trafficking trial. Answering questions from the defence, Sgt. Roskam admitted to creating a false R.C.M.P. memorandum relating to live monitoring of targets pursuant to an Authorization to Intercept Private Communications. The real memorandum created by a different R.C.M.P. officer expressed concerns investigators were not adhering to the requirements of the court order.
As reported in the National Post:
"You knew when you were creating this document that you were committing what you believed to be a criminal offence, right," asked defence lawyer Mr. Lacy.
"Hmm, hmm," responded Sgt. Roskam, who then answered "yes" when pressed on whether his actions may have violated the law. The senior officer described it as "bad judgment" to produce the fake memo.
To say Roskam exercised “bad judgement” is a rather convenient understatement. In fact, the word “criminal” is probably a closer expression of the truth. Section 380 of the Criminal Code of Code makes it a criminal offence for everyone who by deceit, falsehood or other fraudulent means...defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service. In R. v. Stinchcombe,  S.C.J. No. 3 the Supreme Court of Canada was clear that disclosure is not the property of the Crown to be used in securing convictions, but is the property of the public to ensure justice is done. Section 397 of the Criminal Code makes it a criminal offence for a person to, with intent to defraud, destroy, mutilate, alter, falsify or make a false entry in a book, paper, writing, valuable security or document. Though criminal prosecutions for falsifying police documents are undoubtedly extremely rare, I see no reason why either the provisions of the Criminal Code or the common law do not apply in Sgt. Roskam’s case.
The classical definition of “fraud” is to “deprive by deceit” with the intention of inducing a person to his or her injury. This can include fraudulently inducing another to engage in a particular course of action. To “deceive” by falsehood is to induce a state of mind. In R. v. Renard (1974), 17 C.C.C. (2d) 355 the Ontario Court of Appeal held that a person may be defrauded by “being deprived of something and he may be deprived of something either by being fraudulently induced to part with it or by having that to which he is entitled fraudulently diverted or withheld...”. Arguably, the fraud committed by Sgt. Roskam was to deprive the Crown of information necessary for it to assess both the public interest and the reasonable prospect of conviction. Roskam’s so-called bad judgment was intended to deprive the accused of disclosure germane to his right to make full answer and defence. The fabrication was also designed to deprive the public of the knowledge that its police service was failing to comply with court orders limiting the scope of invasive search techniques intimately connected with privacy rights. In this writer’s view, the fact the fraud was uncovered is probably rarer than the fact that such fraud occurs.
Notwithstanding Roskam’s admission to the mens rea of a criminal fraud, the Crown determined there was no reasonable prospect of conviction. It concluded the situation was limited only to the Sault Ste. Marie case. Now to dispel conspiracy theories or other nefarious interpretations of Crown discretion, it is important to understand that Roskam’s admission under oath at trial could not be levelled against him in a criminal fraud prosecution. As a witness, Roskam is shielded by rules in the Canada Evidence Act and the Canadian Charter of Rights and Freedoms. These rules prevent his evidence from being used against him, unless there is an allegation of perjury. To be clear, these protections exist for the valid purpose of encouraging truth in the trial process.
Regardless of whether the Crown is able to prosecute Roskam, what was uncovered is nevertheless highly disturbing. And though Roskam conveniently insisted to “acting on his own”, I have serious difficulties believing this. Surely the memos he created were not for his personal amusement? Surely they were meant to be read by others? After all, isn’t that the purpose of a memorandum? With this in mind, I am left to wonder whether Sgt. Roskam is taking the proverbial bullet for others whose conduct is far from beyond reproach.
Speculation aside, this case also informs us some police are prepared to ignore Court orders in pursuit of their objectives. This potentially implicates more officers than just Roskam and others who might have been aware of the conflicting memorandums. Sgt. DiVito, for example, was aware monitors were ignoring the Court’s order. For his candour, it appears he was transferred to a different unit. This still begs the question: was DiVito responsible for reporting this issue to others outside the police service? What about all the police officers in receipt of DiVito’s memorandum who intentionally remained silent so to protect the integrity of the police investigation? ? If we are serious about preventing wrongful conviction, surely loyalty to the “old boys club” is not a priority?
Of the thousands of police investigations occurring each year, does anybody seriously believe the Sault Ste. Marie case stands alone?
Recent events have demonstrated police are prepared to fabricate evidence to protect themselves from the consequences of their own wrongdoing. Constable Kwesi Millington and his fellow officers lied about the threat posed by Robert Dziekanski which necessitated tasering the man to death. Interestingly, despite the shocking videotape evidence, the Crown declined to prosecute the officers for their conduct. Sound familiar?
See: “The Wrong Way of Worldmaking: One Lawyer’s Opinion about the Dziekanski Inquiry”: http://www.calgarydefence.com/resources/
Though I certainly do not wish to be repetitive, my closing remarks in the aforementioned article aptly apply to Sgt. Roskam’s case:
If police can avoid meaningful responsibility by creating misleading reports, then what deters any law enforcement official from simply doctoring notes, tainting an investigation or disclosing nothing at all? Surely shifting the cost-benefit pendulum to favour the creative use of fiction as a means of avoiding meaningful accountability cannot be condoned? After all, a system of justice that does not seek justice against itself is no justice at all.
David G. Chow
Calgary Criminal Lawyer
Calgary Criminal Lawyer