1. Corey Rogers
Yesterday, the Public Prosecution Service issued this rather cryptic release:
The Nova Scotia Public Prosecution Service (PPS) has asked the Manitoba Prosecution Service to provide legal advice to the Serious Incident Response Team (SIRT) on its ongoing investigation into a 2016 death in Halifax Regional Police cells.
On June 16, 2016, Corey Rogers, 41, was found unresponsive in a police cell at 1:45 a.m. Emergency Heath Services were called but Mr. Rogers could not be revived. SIRT was then called in to investigate.
The Public Prosecution Service provides legal advice to any police agency during an investigation, when requested.
“As we examined the material being gathered by SIRT, it became apparent the prosecution service was in conflict,” said Martin Herschorn, director of public prosecutions. “To avoid any conflict of interest or appearance of conflict, the involvement of another prosecution service is necessary to ensure public confidence in the PPS and in the administration of justice.”
The Manitoba Crown has agreed to advise SIRT as it moves forward with its investigation and will prosecute any criminal charges that may result.
It is common practice for prosecution services across Canada to help each other in conflict cases. Currently, for example, Nova Scotia Crown attorneys are dealing with matters in Newfoundland and New Brunswick.
This is the first time any government agency has named Rogers. That’s right: a man died in a police jail cell, and it took over a year before he was publicly identified. This should worry all of us.
According to an online obituary for Rogers, “he was a cook at several restaurants in Halifax, was an avid reader and enjoyed playing chess.”
What is the “conflict of interest” mentioned in the release? We’re left guessing, but Bill Turpin has a pretty good hypothesis:
[T]he Serious Incident Response Team, which investigates possible misdeeds in the policing world, and the Public Prosecution Service, which prosecutes when SiRT brings charges against someone, don’t get along.
And they don’t get along, the theory goes, because of the “Officer 1” case. In January 2016, SiRT charged Officer 1 with stealing “cut”, a substance used for diluting illegal drugs, from the HRP evidence room. The PPS, aka “the Crown”, failed to act until it was too late to go ahead with the prosecution, so Officer 1 got to walk away from it all.
SiRT gets the last word in these situations, so its director, Ron J. MacDonald, wrote a masterpiece in the art of flaying another organization while being studiously neutral.
Here is MacDonald’s conclusion:
This investigation led to the conclusion that there were sufficient grounds to lay charges of theft, breach of trust, and obstruction of justice. As a result, charges were laid on January 27, 2016, and SiRT’s file was provided to the Crown on March 15, 2016. Subsequently, the Crown entered a stay of proceedings on May 30, 2016. On January 27, 2017, SiRT was informed by the Public Prosecution Service that due to issues related to delays in the prosecution of the charges, that the charges would not be re-instituted.
As a result, Officer 1 is deemed never to have been charged with any criminal offence.
You can find more on this here and MacDonald’s concise report here.
At best, we have here a conflict between two public agencies with different mandates over two unrelated policing issues. Worse, is the possibility the two organizations are engaged in a peeing match. Worst, is the possibility that SiRT believes the PPS is protecting bad cops.
“Officer 1” was Gary Basso.
If Turpin is right, and I think he is, then the “conflict” in the Corey Rogers case is unsettling.
Every day, in criminal trials in courthouses across Nova Scotia, cops take the stand to testify in cases being prosecuted by the Public Prosecution Service. A degree of cooperation between cops and the crown is necessary to get convictions.
But when the crown admits it is in a position of conflict when potentially prosecuting cops, what is it really saying? Are we to understand that the crown fears cops won’t cooperate in a prosecution if one of their own is being charged criminally in an unrelated matter? If so, how far does this implicit quid pro quo relationship go? Is the crown aware that cops are lying on the stand but turning a blind eye to it?
It feels like there’s much more to this story and we’re only seeing the very tip of it.
2. More on the PPS
The above discussion of the Public Prosecution Service and cops reminds me of the Glen Assoun case, which I detailed in Parts 1, 2, and 3 of the Dead Wrong series.
The nut of it: A cop, Dave MacDonald, seems to have been parachuted in to cold cases or investigations going nowhere, including the investigation into the murder of Brenda Way. Once MacDonald was on the Way case, suddenly questionable evidence started appearing (a knife predicted by a psychic), jailhouse snitches started fabricating stories, and other witnesses who had it out for Assoun started getting their stories aligned. The case was initially prosecuted by Dennis Theman.
Here’s what I wrote about Theman in a footnote in Part 2:
At the time, Theman was president of the Nova Scotia Crown Attorney’s Association; his efforts to improve the working conditions of prosecutors have resulted in a national award in his name issued to the person who best represents the interests of crown prosecutors.
So Theman was highly regarded by his peers, and his dedication to the PPS was such that he worked to improve conditions rather than simply leave for private practice.
But when he was about to go to trial with the Assoun prosecution, an odd thing happened:
Before the trial could begin, there were three evidence hearings. The first, from April 12 through April 15, 1999, determined what police testimony would be allowed. There was nothing terribly controversial during the hearing, and Hood made her rulings on April 15.
Then, for some reason not explained in court documents, Theman was abruptly taken off the case and replaced with a pair of crown prosecutors, Ron Fetterly and Dan MacRury.
Theman had been prepared for the case. Fetterly and MacRury were not. They needed time to review the evidence and re-interview the crown witnesses themselves. Court proceedings were delayed more than a month to allow the new prosecutors to get up to speed, but even then Fetterly complained he didn’t have much time to prepare for the trial.
Why was Theman taken off the case? I’ve asked him that question directly, and he declined to discuss anything to do with the Assoun case until the Criminal Conviction Review Group issues a decision. (Under house arrest until he is exonerated for a wrongful conviction, Assoun has been waiting for that decision for over two years, but that’s another issue.)
I respect Theman’s refusal to discuss the case, but it leaves me guessing as to what went on.
The evidence against Assoun was shaky, at best. My read — which, sure, comes 18 years after the fact — is that the evidence was clearly fabricated. A prosecutor’s job is not to get convictions, but rather to get justice. And if Theman looked at the evidence and realized it was bullshit, then his obligation to justice required him to refuse to participate.
I don’t know why the PPS brought on two new prosecutors for the case, but if the relationship between the crown and police is as intertwined and problematic as Turpin suggests it is in the Corey Rogers case, then it starts to make sense: the cops wanted to close the Way case, and doing so required convicting Assoun, a disagreeable man no one would care about if he was railroaded into a conviction for a crime he didn’t commit, and the crown was happy to play along.
Ultimately, I’m guessing, either as a direct cause or a contributing factor, Theman’s disagreement with the PPS over the Assoun case led him to quit his job. He’s now a defence lawyer.
But what about Ron Fetterly and Dan MacRury, who were brought in to prosecute Assoun after Theman’s departure? Didn’t they also have an obligation to justice, rather than to simply get a conviction?
As I got into the Dead Wrong series, I began to wonder what other cases all the players were involved in. Was the cop, Dave MacDonald, involved in other problematic cases? Indeed he was, including (as Part 4 showed) the Kimberly McAndrew investigation, which went sideways because MacDonald called in a psychic, and (as Part 5 will detail) what I believe was yet another wrongful murder conviction.
What about the prosecutors, Fetterly and MacRury? Did they go on to prosecute other cases that should have been dropped? To find out, I filed a Freedom of Information request seeking all murder trials either man had been assigned to. The response: the PPS doesn’t keep records about which cases prosecutors are assigned to.
Frankly, I think that’s a bald lie. How is a prosecutor to be evaluated for raises if their prosecution history isn’t available?
More to the point, as with cops and investigations, there should be a record of crown prosecutors’ assignments for precisely this reason: if there’s a hint that incompetence, sloppy procedures, an indifference to truth and justice in favour of conviction, or even criminal behaviour resulted in one wrongful conviction, shouldn’t we examine every other case handled by the same people to make sure it didn’t happen in other cases?
As I say, I believe it did happen in another case handled by MacDonald, the cop. What about the prosecutors? We’ll never know.
3. Freedom of Information
Speaking of Freedom of Information requests, Mary Campbell attempted to follow up on her report about Dexter Construction making use of the Workplace Innovation and Productivity Skills Incentive (WIPSI) program to, in effect, get government grants to train its own employees:
I know that between 2015/16 and 2016/17 the company received such funding 10 times and that several of these applications involved training provided by the Dexter Institute, which is part of the Municipal Group.
The Department of Labour and Advanced Training wouldn’t say whether the company’s previous nine applications had been successful, so I had to submit a FOIPOP request of my own to find out. I paid the $5 application fee and requested a list of successful WIPSI funding applications from the program’s inception in 2010 to end-2013. I wanted the name of the company, the amount of funding received, the date funding was approved and the institution providing the training.
Here’s the response I received:
In relation to your application for WIPSI records, I have spoken with the Department’s program unit responsible for searching for the records.
The records you are seeking begin in 2010, and you have requested each year from 2010 to the end of 2013. I have been advised by the business unit that not all the information you have asked for can be recovered electronically. A significant portion requires physically searching each file individually.
The requirement to physically search the paper files has been estimated at 100 hours of staff time. The Act allows us to charge an applicant at the rate of $30.00/hour.
Therefore, based on your initial application, the additional fee estimate to search and produce the records you have requested is $3,000.00.
“In the world of the start-up digital publications, $3,000 is a lot of money,” notes Campbell:
Had I $3,000 burning a hole in my pocket, I could walk into Connors Basics on Charlotte Street and come out with a new desk, a new office chair, a lifetime supply of roller ball pens, a stash of inkjet printer cartridges and a time clock (which I don’t really need, given I set my own hours, but have always wanted to use — I blame Fred Flintstone) and still have money left over for coffee.
Or…I could give the full $3,000 to the Nova Scotia Department of Labour and Advanced Education in return for a few dozen pages of information.
More importantly, Campbell goes on to explain why keeping only paper records violates both the spirit and the law of the Freedom of Information and Protection of Privacy Act.
Click here to read “My $3,000 FOIPOP or Why This System Doesn’t Work.”
As with the Examiner, the Cape Breton Spectator is subscriber supported, and so this article is behind the Spectator’s paywall. Click here to purchase a subscription to the Spectator, or click on the photo below to get a joint subscription to both the Spectator and the Examiner.
4. Ivany reports
Campbell can’t afford $3,000 for a FOI request, but I bet Ray Ivany can. Ivany is paid about $100,000 a year for sitting on the board of Nova Scotia Power, is getting a fat retirement cheque for his service as past president of Acadia University (where he made $300,000 annually), and his spouse was appointed to the plum position of the premier’s principal secretary at a salary of $160,000. He’s now congratulating himself for curing all our economic woes.
There’s no telling if Nova Scotia Power board member Ray Ivany personally intervened, but “a large osprey nest perched on top of a live transmission tower in Lunenburg County has prompted a scheduled power outage in the area on Sunday, July 9 between 2:30 a.m. and 4:30 a.m.,” reports Jerri Southcott for the CBC:
Tiffany Chase, a senior communications advisor for Nova Scotia Power, said during the two-hour outage insulators will be installed.
“This is an interim safety measure to protect service reliability and the nest itself,” said Chase.
Nesting on power lines is not uncommon for osprey.
Typically Nova Scotia Power works with the Department of Natural Resources to relocate the nest to both protect the birds and prevent power interruptions.
But Chase said they’re unable to do that right now while the birds are still nesting.
6. Excellence in journalism
Speaking of animals, yesterday a Canadian Press editor was sitting around the office thinking, “we need more dog stories… no, wait, we need more cat stories.” Just at that moment, reporter Aly Thomson showed up to pitch a dog and cat story:
A New Brunswick cat who had been missing for six weeks had an unlikely saviour: A dog.
Shelly Colette was walking her dog Cash a few weeks ago in Sackville, N.B., when the black border collie Labrador mix stopped over a manhole and refused to move.
Colette looked down and saw a cat through the grate and immediately knew it was Ghost, a local cat who had been missing for weeks.
“I had never met Ghost, but I had seen the missing cat signs around town and I thought, ‘That’s Ghost’,” said Colette.
“Cash was very intrigued and refused to leave. He wanted to save this cat.”
Point Pleasant Park Advisory Committee (Thursday, 4:30pm, City Hall) — here’s the agenda.
No public meetings.
No public meetings.
IWK Research Rounds (Thursday, 7:45am, IWK Temporary Auditorium) — Andrea Bishop will speak on “Improving Transitions from the Emergency Department to Home by Engaging and Partnering with Parents.”
In the harbour
6am: Veendam, cruise ship with up to 1,350 passengers, arrives at Pier 22 from Sydney; here’s the Veendam’s fascinating history.
Noon: Oceanex Sanderling, ro-ro container, moves from Pier 41 to Autoport
3:30pm: Veendam, cruise ship, sails from Pier 22 for Bar Harbor
4:30pm: Oceanex Sanderling, ro-ro container, moves from Autoport back to Pier 41
Summer, seems like. Enjoy all eight days of it while you can.
A Municipality in NS once gave me a $8000 fee cost for a fairly simple FOIPOP request, with a $4000 payment upfront before any work was done. When a review of the fees was requested, FOI Office determined that the Municipality was overcharging and attempting to charge for the same information twice. They were also attempting to charge for things, like legal fees, which are not permissible under the act. I think the cost estimate was eventually reduced to $1000.
The ridiculous fees charged for responses to information request violate not only the spirit of the legislation but the intent. ALL information should be freely available. We all as taxpayers have already paid for the collection of the information and should not be double charged when we ask to see what is rightfully ours. To use the excuse that records have to be manually inspected at a cost of $30 per hour is not only insulting, but speaks to a systemic level of incompetence. This is 2017. ALL records should be electronically accessible and if not it should be on the particular department who have chosen to not maintain electronic files to provide the information at no charge. Perhaps a small administration fee of $25 or so might be warranted but to say $3K for what is already OUR information is clearly obstructionist. I believe most if not all Federal departments have eliminated those labour fees for Access to Information (ATIP) requests for these very reasons.
Plus, this work is part of these employees jobs! Here’s a question. If they are charging $30 per hour for an employee to do this work, did they have to hire someone? No. This is just a part of the workers job. They don’t take them off work and replace them! This is a total scam by HRM! They do this all the time and it’s crazy!
Just for clarification, the FOI fees Mary discusses were from the province, not HRM. In my dealings with the HRM on FOI-related issues, I’ve found them pretty cooperative, and they’ve never charged me a penny more than the $5 application fee (used to be $25).
A possible workaround is the Finance Deptartment’s annual supplement to the public accounts. It details every the total paid by each department to every service provider, from $5,000 to an auto repair shop to $99,982,081.30 to Dexter in 2016. They are required by the Finance act to do this and keep digital records. They should have no problem detailing each payment to Dexter from any department you want to know about.
Re 6. Excellence in journalism
Love the story. Bravo to all who cared and persevered. Hopefully, Ghost will mellow with age and hang out in more conventional surroundings. Adorable Examiner illustration, also.
Its OK to have paper copies of government documents kept safely and away from shredders. Too many times searches on HRM’s website come up with a “Sorry, we can’t find the page you’re looking for” How about bringing HRM’s municipal archives from the Burnside Hinterland back to the downtown where they are more accessible? Maybe to the former Central Library. I wonder how HRM ranks on FOIPOP for time, cost (or even keeping records) compared to other Canadian cities.
Everybody seems to be getting a cushy job with Nova Scotia Power, Tiffany Chase used to be one of the two Twitter people for Halifax Transit. Now she’s a ‘senior communications advisor.’
the other reason to be outraged by paper records is the literally millions of dollars of expensive downtown real-estate rented by the province and dedicated to nothing but storing paper.