Holy Bill Of Rights, Batman!

BOOM! WHAM! POW! BAM!

These are just a few descriptors used to illustrate the mighty fist of the comic book superhero striking a blow for justice in a world infested with villainy.

“I say thee nay”, bellows the Mighty Thor as the Thunder God smites enemies with his Uru hammer. CRACK!

“Hulk smash”. KABOOM!

“Whatever is fair in love and war is also fair in crime fighting”, retorts the Batman. WHAMO!

Just days into 2011 and yet another unnamed police officer is caught on camera administering some gratuitous street justice.

“B.C. cop caught on tape allegedly kicking man in the face”: http://www.ctvbc.ctv.ca/servlet/an/local/CTVNews/20110107/bl_kelowna_brutality_110107/20110107?hub=BritishColumbiaHome

On-lookers were shocked.

In the words of an unnamed witness, “he [the police officer] kicked him so hard. He never fought”.

SMACK!

The target of the kick was next observed sporting the bloodied evidence of the steel-toed boot of criminal justice.

“Holy Bill Of Rights, Batman”!

Sadly, this incident in Kelowna, British Columbia is not an isolated event – not even close. Recent months have born witness to a graphic display of wanton violence by police against those whom they have a duty to protect. I watched in disgust as Cst. Desmond Sandhoe unleashed a fury of aggravated closed fist strikes to the body and face of a prisoner in full view of a camera at the Lac La Biche R.C.M.P. detachment.

SMASH! POW!

http://www.edmontonjournal.com/sports/Biche+RCMP+officer+pleads+guilty+appalling+assault/3891371/story.html

I was again unnerved to watch the actions of Ottawa police performing a series of aggressive manoeuvres whilst executing an undignified strip search of prisoner Stacey Bonds. A knee to the lower body, followed by a forced take down of the prisoner by multiple officers represents just a few actions critically denounced by Justice Lajoie.

BOOM! BING!

http://www.cbc.ca/canada/ottawa/story/2010/11/25/ottawa-bonds-video-115.html

I was dismayed to watch a police officer unceremoniously shove a disabled woman to the pavement in full view of shocked Vancouverites walking along a local sidewalk.

DONK! BLAMMO!

Rather than remaining to offer assistance to the woman, later identified as having cerebral palsy, the great triumvirate of police simply continued their shoulder-to-shoulder stride, cutting a path through the people using the pedestrian walkway. The officer’s pathetic excuse, “I thought she was going for my gun”.

http://www.ctvbc.ctv.ca/servlet/an/local/CTVNews/20101207/bc_cop_charged_101207/20101207?hub=BritishColumbiaHome

Of course, there was also Robert Dziekanski. Need I say more? ZAP!

Holy shenanigans, Batman!

Aside from several unnamed Calgary police charged with criminal offences in 2010, Calgaryians have yet to witness the iron fist of our boys in blue captured in Technicolor. As a criminal defence lawyer, however, I assure you, I have unfortunately born witness to such things. Whether it is due to a complete absence of investigative reporting in Calgary, a biased media, a corrupt police department, a good cover-up or a combination of all of the above, the evidence of such conduct has yet to be exposed via the powerful medium of videotape. And though I cannot divulge things I know to be true because of my involvement as a member of the criminal bar, I can tell you that such violence exists. I have seen it both as a Prosecutor and a criminal defence lawyer.

That said, perhaps the best evidence of violence within the Calgary Police Service is not resting within the binary code of digital video or police reports disclosed to the crown; rather, it is expressed with brutal efficiency by pseudonym author, John Smith, in his 2008 publication, “The Wolf and the Sheep Dog”.

“They break the law and we try to catch them”, Smith writes. “But running after you are caught is going to get your ass kicked. Those are the rules”.

“We called it ‘the one-punch rule’, you run and every cop involved with the foot chase gets a punch after you get caught”.

A reading of “The Wolf and the Sheepdog” leaves one with the indelible impression that its writer is prepared to twist logic and defy sanity in the name of justifying violence. Just a few short lines following the aforementioned passage, the writer laments his inexperience as justification for failing to administer some worthy street justice. A mistake he will not make a second time.

“Just as I finished yelling my totally asinine threat he just stopped and laid down. He went into the fetal position and started begging not to get hit”.

“What am I to do”? ...

“My partner looks at the guy and lets him know that he is lucky that I caught him, otherwise she would have kicked the shit out of him”.

In other words, the compliant prisoner barely avoided: BOOM! WACK! POW! BONK! BING!

No mercy, Batman!

Reading “The Wolf and the Sheep Dog”, one quickly learns mercy was rarely given. But before regaling you with more superhero tales about the author beating citizens in the name of justice, let me tell you a little about the book and its writer.

The book purportedly depicts true events. To highlight the introductory words of the author:

The calls and situations depicted in this book are only based on actual events.

My name has been changed and my co-worker’s names are false ones.

I am still an active member of a police force and because of laws and personal safety I have to keep my identity a secret....

This book contains my first five years on the street. I consider myself lucky to be able to be at the right place and time to be involved in such calls.

To be waist deep in “the Shit”.

This is my story.

Despite the fact that the pseudonym author/Calgary policeman actually accomplished a great achievement writing his book, nobody said he was necessarily artistic or even particularly intelligent. The book is infected with scatology, littered in slang and composed with grade-school simplicity. Perhaps most troubling, it teaches nothing other than some of Calgary’s finest are little more than bloodthirsty ruffians who use their authority to administer physical violence against those whom they are entrusted to protect. Forgo any notions of higher principle, police responsibility, integrity, or higher cultural and moral values; for “The Wolf and the Sheepdog” paints many members of the Calgary Police Service as nothing short of armed thugs.

Perhaps even more shocking, it paints its author and members of the CPS as “criminal”.

Discovering the real identity of pseudonym writer “John Smith” was just about as easy as surmising Clark Kent without glasses is Superman. Even Inspector Gadget could have unravelled this mystery. Simply “Google” a few rudimentary search terms and the author’s real name, police badge number, telephone number and other personal information is revealed. Even more baffling is that it was the author who exposed himself!

Holy stupid, Batman!

It is not without some irony that the author actually had the audacity to promote his book by messaging MacLean’s Magazine in relation to their “The Best of Film, TV and Books in 2008”.

Holy “it’s hard to be humble”, Batman!

http://www2.macleans.ca/2008/12/24/the-best-of-08-in-film-tv-and-books/

To Brian Bethune:

Good day, my name is John Brix-Maffei and I am a Canadian Author as well as a Canadian Police Constable. I have written a book called “The Wolf and The Sheepdog” published by Authorhouse and distributed through Ingram. I would be honored to send you a copy of the book for your review and critique.

The Wolf and The Sheepdog was created to allow the reader a look into the emotional and philosophical world of policing. The reader gains a valuable insight into a subculture that has been hiding in the shadows, a world of violence, victims and turmoil. Through “The Wolf and Sheepdogs” short stories the reader will be transported into a world that goes far beyond Televisions “Badge, Bottle, Gun” stereotype.

The Wolf and The sheepdog has been well received in the early stages of its release and has been quoted as; “Taking the lid off of policing”, by Gerry Forbes on CJ92, “Truly an eye opening event,“ by Jason Elles on Sirius Satellite Radio, “Raw, powerful and moving,” by Dave Rutherford on AM 770.

I hope that you enjoy the short stories that I have created in “The Wolf and The Sheepdog”.

Please feel free to call me at 1(403) 710 - 8698, my wife Angela at 1(403)567-0495, or contact me at my email if you have any further questions.

pol3530@calgarypolice.ca or memorialpainting@gmail.com

See also: http://www.amazon.com/Christmas-Dinosaur-Angela-Brix-Maffei/dp/1438904991

Perhaps Gerry Forbes said it best; the book indeed takes “the lid off of policing”.

Reading The Wolf and the Sheepdog, I continuously pictured a series of comic book frames, wherein the self portrayed hero, Cst. John Brix-Maffei was walloping enemies into submission, whilst bellowing cheesy one-liners, such as “it’s Matrix Time”.

Though he self promotes his book with Maclean’s Magazine as “...a look into the emotional and philosophical world of policing”, I take great umbrage with the use of the word “philosophical”; rather, I prefer to characterize Mr. Brix-Maffei’s work as more closely akin to an inculpatory admission of criminality and noble cause corruption by a Calgary police officer serving in the line of duty.

Just seventeen pages into the book, Mr. Maffei essentially confesses to having committed an aggravated assault against a suspect.

According to the Criminal Code of Canada, “every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant”.

As Mr. Brix-Maffei approaches a motorist just recently involved in a head-on collision with his police cruiser, he sees “a beautiful star-shaped imprint on the front window...caused from [the driver’s] head bouncing off of it”.

Now confession.

“I know that blows to the head will be most effective right now, because he has already sustained damage to his head from impacting the window”. “A quick glance at his hands on the steering wheel tells me that he has no weapons. Game time!”

“My left fist slams into his face, causing his nose to bend and suddenly pop under the force. My right fist lines up for a second blow”.

BAM! POP!

“I can already see blood flowing from his nose”.

“Fucking eh...”, he writes, “I broke his nose....The right fist hits solid on his jaw, causing his head to spin violently away from me. He is fucked; I have two or three seconds now. His brain is bouncing off of his cranial cavity and I have two or three seconds to cause more damage to this fuck before his brain even recovers from that blow”.

WHAM! SMASH!

Holy planned and deliberate violence, Batman!

With writing like this, who needs video?

Well, Mr. Brix-Maffei does not merely confess to brutalizing people, he also confesses to doctoring notes and police reports to avoid accountability. After pondering intentionally ramming the suspect’s vehicle, Brix-Maffei queries, “Did I breach policy? You bet, you have to get permission to ram a vehicle from your supervisor”.

“Will I get a negative paper? I hope the fuck not, this is where my talent for articulation comes in”.

Of course, an event captured on video seldom requires “talent for articulation”.

“Did I lie”, ponders Brix-Maffei. “No”.

“Lies are those that affect the innocent”.

Holy noble cause corruption, Batman!

Has John Brix-Maffei ever been charged with a criminal assault? To my knowledge, the answer is no. Yet “The Wolf and the Sheep Dog” is saturated with stories of wanton violence by a man who is still employed as a Calgary Police Officer. The resounding theme is how the enemies of Brix-Maffei are “fucked”.

I drive my right fist into his kidneys. I set into him and push my fist deep. I can feel my fist sink in up to my wrist before he bends and contorts to avoid any more damage.

He is fucked. His face is contorted in pain. His mouth is gaping, trying to drag in air. Air that was knocked out of him when I slammed into him, precious air that was wrung out of his lungs even more when I drove my fist into him.

I have landed the damaging blows that will allow me to give him the hurt as long as I want to.

My elbow slices into his face. His head snaps to the left and I feel his long hair whip across his face.

I send in another body shot to keep his mind confused. My left fist slams into his sternum. Nothing comes out of his mouth. No groan, no gasp of air or he will die.

The bright white paint of panic is smeared across his face.

POW! CRACK! ARGGGGGG!

Meanwhile, Brix-Maffie has the wherewithal to yell “stop resisting and you won’t get hurt”.

As he writes, these are words designed to “cultivate the minds” of witnesses.

“I know that if someone’s watching, my verbal queues will let them know that we are fighting a bad guy who is fighting with us. The verbal direction will also cultivate their minds. They will believe what I yell out”.

The Wolf and the Sheep Dog consists of 386 pages of brutal and wanton violence confessed with artistic flare by a Calgary Police Officer. Brix-Maffei’s stories are seldom heroic or even brave. Many of the beatings are cowardly excesses of police violence against those who are vulnerable. The book does not, as Brix-Maffei claims, allow the reader insight into the emotional and philosophical world of policing; rather, it is a disgusting and immoral confession which sullies the entire Calgary Police Department.

Comic book heroes are seldom gratuitous. They are manufactured with an ingrained sense of morality that recognizes the need for justice to be, wherever at all possible, peaceful. As Professor David Paciocco writes in his book, “Getting Away with Murder”, “the quality of a nation’s civilization can largely be determined by the methods it uses in the enforcement of its criminal law”. If Brix-Maffei’s conduct at all represents even a small minority of Calgary police officers – and by accounts it does – then I fear the quality of our civilization rests on the boot heels of police power.

“I look at my partner”, writes Brix-Maffei, “who starts to look around in all directions. He is looking for bystanders, for eyes that may watch us. He gives me a nod and I know it is time for me to make sure this loser doesn’t try this again”.

“I move over to this guy lying on the ground, hands cuffed behind his back. His look of delight changes to a look of fear as he knows I am so ready to open a can of shit on him”.

BOOM! BOFF! POW! SLAM!

Holy who are the real criminals, Batman?

David G. Chow
Calgary Criminal Lawyer
Calgary DUI Lawyer

www.calgary-law.ca

You should have let me in on this. We could have planned it, prepared it, pre-sold the movie rights! - Riddler

Credibility Imperilled: The Impact of Sgt. Roskam’s Conduct on the Administration of Justice

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”.

http://www.nationalpost.com/story.html?id=2968012

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.

http://www.nationalpost.com/story.html?id=2968012#ixzz0oTpXWYOi

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, [1991] 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.

Submitted by:



David G. Chow
Calgary Criminal Lawyer
Calgary Criminal Lawyer
www.calgary-law.ca