Thursday, June 26, 2014

Walter Rodney Commission of Inquiry - Gerald "Gerry" Gouveia evidence - Does a Reasonable apprehension of bias exist?

"We are trying to get to the truth of this matter and every single document that exists and should exist, should be here that is what my point is." Selwyn A. Pieters


By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on June 26, 2014
Updated on July 1, 2014

As a lawyer with significant experience in human rights, civil rights and non-adversarial matters, I was retained to represent its interest of the Guyana Trades Union Congress (GTUC) at the Walter Rodney Commission of Inquiry. I am currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

Gerald "Gerry" Gouveia provided evidence at the Commission of Inquiry on June 26, 2014 and June 27, 2014. He is one of the singularly most important witness in this inquiry (outside of Donald Rodney, who was present with Dr. Walter Rodney when he met his demise) as Gouveia is alleged to be the pilot who flew William Gregory Smith out of Georgetown after the "terrible accident" that
resulted in the death of Walter Anthony Rodney. And the evidence of his flight log and witness
statements appears to be powerful objective evidence that he flew an aircraft from Timerhi to Kwakwani.

The Commissioners are Sir. Richard L. Cheltenham, K.A., Q.C., Ph.D – Chairman (Barbados); Mrs. Jacqueline Samuels-Brown, Q.C. (Jamaica) and Mr. Seenath Jairam, S.C. (Trinidad). The Commission’s mandate established by its terms of reference includes the following:-
(i) To examine the facts and circumstances immediately prior, at the time of, and subsequent to, the death of Dr. Walter Rodney in order to determine, as far as possible, who or what was responsible for the explosion resulting in the death of Dr. Walter Rodney;
(ii) To inquire into the cause of the explosion in which Dr. Walter Rodney died, whether it was an act of terrorism, and if so, who were the perpetrators;
(iii) To specifically examine the role, if any, which the late Gregory Smith, Sergeant of the Guyana Defence Force, played in the death of Dr. Walter Rodney and if so, to inquire into who may have counselled, procured, aided and or abetted him to do so, including facilitating his departure from Guyana after Dr. Walter Rodney’s death...

Gerald "Gerry" Gouveia evidence goes primarily to i) to iii) of the Terms of Reference.:

Gouveia testifed to the effect that "When I saw the picture of the person.. there was an anomoly in my mind....

"At that moment in time, and I remember this as an anomoly, I remember the picture of the man and I felt that the man that I am looking at in that picture.... looked like the man on my aircraft… but I never knew for sure…

"I really cannot say with 100 percent certainty but there was an anomaly in my mind.”

This testimony tiggered an aggressive cross-examination style intervention by Commission Chairman, Sir Richard Cheltenham of the witness even though his lawyer, Dave Kissoon, had not even completed his examination in chief.

Sir. Richard L. Cheltenham, was unrestrained in his aggressive cross-examination of the witness, even though the witness examination in Chief was not completed, nor was an opportunity provided to Commission Counsel or any other counsel for that matter to complete their cross-examinations before the Chairman conducted himself as he did.

I have listened to the evidence via livesteam on NCN and benefitted from Stabroek News posting the entirety of the video recordings online. The full transcripts of the evidence of Gerald Richard Gouveia is also available for June 26, 2014 and June 27, 2014. Here are some examples of what took place at the hearing:


Sir Richard Cheltenham "Whether given an anomoly was triggered ... did you take any steps to ascertain whether it was Gregory Smith"

Sir Richard Cheltenham "Did it appear to you that you may have provided for his escape... acting on the orders of superiors"

"Was it the duty of the military to provide escape for a killer" Commission Chairman, Sir Richard Cheltenham asked. "Absolutely not" Gerry Gouveia answered 54 minutes into the video recording Walter Rodney COI, June 26, 2014 - Part 1, Stabroek News, June 26, 2014

"But that must have occurred to you given what you were hearing reported in the media" Commission Chairman, Sir Richard Cheltenham  persisted.

Having read the media reports Commission Chairman, Sir Richard Cheltenham pressed on that this man Gregory Smith that was fingered in the media and Gouveia having seen the picture in the newspaper noted that "that is the very man I took. The implication of that is if that report is true that you would have provided escape, on instructions, for a killer."

Gouveia was asked by Sir Richard Cheltenham whether he reported the matter to a superior officer. He said no.

Commission Chairman, Sir Richard Cheltenham then asked 56 - 57 minutes into the recording:

Did it burden your conscience? NO
Did it troubled you at all? NO
Why not? In the context of a military officer over the years I have been involved in many operations...

Commission Chairman, Sir Richard Cheltenham in response to the above answers went on to ask "Were you involved in providing escape for a criminal or killers - were you involved in that kind of thing before" Absolutely not Gerry Gouveia answered.

Commission Chairman, Sir Richard Cheltenham asked "Were you indifferent to whether or not that you were involved in transporting the man that killed Rodney" Commission Chairman, Sir Richard Cheltenham "No Sir" Gerry Gouveia answered.

On June 27, 2014, Counsel to the Commission, Mr. Glenn Hanoman covered much the same terrain:
Mr. Hanoman: Mr. Gouveia, you are aware today that if for instance, you were to harbor or assist a murder accused to escape justice; that you can be charged as an accessory after the fact?
Mr. Gouveia: I imagine the Law would do that, yes.
Mr. Hanoman: As a matter of fact, you know that you could also be charged for murder?
Mr. Gouveia: No, I do not know that, Sir.
Mr. Hanoman: If you assist a murder accused to get away, you know that you could be charged for murder?
Mr. Gouveia: No, I do not know the Law like that, but I am sure my Lawyer would advise me.
Mr. Hanoman: Now, let me suggest to you that the reason you never shared this information with anybody about your held belief that you had transported this person who was accused of murder, the reason you never shared it with anybody is because you were afraid that you too would be charged for murder or for being an accessory after the fact?
Mr. Gouveia: No, Sir.....
Mr. Hanoman: Do you agree that someone trying to escape criminality would have a greater motivation to put a false entry into a logbook, than somebody who is just keeping a record of the aerodrome? Do you agree?
Captain Gouveia: Could you repeat the question, Sir.
Mr. Hanoman: A man who is accused of flying a murder accused away from a scene, has a greater motivation to put a false entry into a log than somebody who mundanely records aircrafts as they come and go?
Captain Gouveia: I have never altered the aircraft logbook, here, and my times and so. I would have to say to you that if your analogy is based on a fairy-tale, yes, but I flew this plane according to this logbook and the records were not altered. I know I am not permitted to ask a question, Sir. I came here, I said to you that I believe the man Gregory Smith was on the plane, I believe on the 14th. If I flew him on the 17th, I would be the first one to stand here and tell you that. You do not need to dig like this. I would tell you I did because if I flew him on the 14th and I flew him on the 17th, it is exactly the same thing. I did not fly him on the 17th. I would have been proud to tell you that, but I did not fly him on the 17th.

****

In correspondence to the Commission's Secretariat dated May 30, 2014, I requested the Commission ask the Guyana Defence Force to produced ducuments including the following:

9.      In respect to the Guyana Defence Force plane that allegedly took Gregory Smith to Kwakwani and outside of Guyana, please ask the Guyana Defence Force to produce its records for its aircrafts and helicoptors for June 15 – 17, 1980.
10.  Any official Immigration Records for Gregory Smith for June 17, 1980.
11.  Any official records from the Civil Aviation Authorities in Guyana including record of departure and passport used, whether false or genuine.

Captain Gouveia's evidence concluded today without the benefit of any relevant documents from the Guyana Defence Force being produced to the Commission. This is the third such witness that appeared and documents that are relevant to the TORs, were not readily available by the record holder. See my discussion with the Commission on June 06, 2014 on this subject matter: Walter Rodney Commission of Inquiry - The Battle for Contemporaneous Documents.


*****

Back to the bias issue, the question is whether or not the questions as they were asked by Commission Chairman, Sir Richard Cheltenham of the witness was to “clear up a point that has been overlooked or left obscure” Jones v. National Coal Board, [1957] 2 All E.R. 155,  [1957] 2 K.B. 55 (C.A.). Alternatively, can it be said that where a Commissioner interrupts during examination in chief and takes the lead in questioning the witnesses in an adversarial manner on matters that goes to the heart of its terms of reference, a reasonable person can be led to conclude a reasonable apprehension of bias? See, Chrétien v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities, Gomery Commission) [2008] F.C.J. No. 973, 2008 FC 802, 168 A.C.W.S. (3d) 681. In the further alternative, given that there was no serious objections from counsel for Mr. Gouveia who was present at the hearing, can this be accepted as part of the special nature of a Commission of Inquiry?

At the end of the proceedings Commission Chairman, Sir Richard Cheltenham indicated that Gerald Gouveia is here "to talk about his role in transporting Gregory Smith  the day after Rodney was assassinated." See, Walter Rodney COI, June 26, 2014 - Part 4 at 51:54 minutes. Again, this is an interesting comment in the context of how one assesses the role of the Commission and Chairperson and the permissible degree of pronouncements prior to hearing all of the evidence and completing its report.

THE CANADIAN EXPERIENCE WITH SUCH ISSUES - GOMERY COMMISSION

In Chrétien v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities, Gomery Commission) [2008] F.C.J. No. 973, 2008 FC 802, 168 A.C.W.S. (3d) 681, Justice Teitelbaum considered the comments of Commissioner Gomery whist the Prime Minister was a witness before the Commission of Inquiry and ultimately concluded that a reasonable apprehension of bias exist. In coming to that conclusion he set out the law that guided him as follows:
Issue 3: Did the Commissioner breach the duty of procedural fairness?

                    A. Was there a reasonable apprehension of bias on the Commissioner's part toward the Applicant?
67     Procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker (Baker, supra, at para. 45). The standard of impartiality expected of a decision-maker is variable depending on the role and function of the decision-maker involved (Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 per Cory J. [hereinafter Newfoundland Telephone]. In Newfoundland Telephone, the Supreme Court established a spectrum for assessing allegations of bias against members of commissions or administrative boards:

                    It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the Board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.

                    [...]

                    Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing. This does not of course mean that there are no limits to the conduct of board members. It is simply a confirmation of the principle that the courts must take a flexible approach to the problem so that the standard which is applied varies with the role and function of the Board which is being considered. In the end, however, commissioners must base their decision on the evidence which is before them. Although they may draw upon their relevant expertise and their background of knowledge and understanding, this must be applied to the evidence which has been adduced before the board: Newfoundland Telephone Co., supra, at pp. 638-639.
68     Justice Cory stressed in that case "that the courts must take a flexible approach to the problem so that the standard which is applied varies with the role and function of the Board which is being considered" (Newfoundland Telephone, supra, at p. 639). Applying this flexible approach, he then concluded that the applicable standard for assessing the Board's impartiality during the investigative stage was the closed-mind standard. He also found that when the matter reached the hearing stage, the Board's role had changed and, as a result, the standard used to assess the Board's conduct at that stage was the reasonable apprehension of bias standard.
69     In Beno (FCA), supra, the Federal Court of Appeal considered the nature, mandate and function of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia and determined that the Commission was situated somewhere between the legislative and adjudicative extremes on the spectrum, stating the following at paragraphs 26-27:

                    It is not necessary, for the purposes of this appeal, to determine with precision the test of impartiality that is applicable to members of commissions of inquiry. Depending on its nature, mandate and function, the Somalia Inquiry must be situated along the Newfoundland Telephone spectrum somewhere between its legislative and adjudicative extremes. Because of the significant differences between this Inquiry and a civil or criminal proceeding, the adjudicative extreme would be inappropriate in this case. On the other hand, in view of the serious consequences that the report of a commission may have for those who have been served with a section 13 notice, the permissive "closed mind" standard at the legislative extreme would also be inappropriate. We are of the opinion that the Commissioners of the Somalia Inquiry must perform their duties in a way which, having regard to the special nature of their functions, does not give rise to a reasonable apprehension of bias. As in Newfoundland Telephone, the reasonable apprehension of bias standard must be applied flexibly. Cory J. held (supra, at pages 644-645):

                    Once matters proceeded to a hearing, a higher standard had to be applied. Procedural fairness then required the board members to conduct themselves so that there could be no reasonable apprehension of bias. The application of that test must be flexible. It need not be as strict for this Board dealing with policy matters as it would be for a board acting solely in an adjudicative capacity. This standard of conduct will not of course inhibit the most vigorous questioning of witnesses and counsel by board members.

                    Applying that test, we cannot but disagree with the findings of the Judge of first instance. A commissioner should be disqualified for bias only if the challenger establishes a reasonable apprehension that the commissioner would reach a conclusion on a basis other than the evidence. In this case, a flexible application of the reasonable apprehension of bias test requires that the reviewing court take into consideration the fact that the commissioners were acting as investigators in the context of a long, arduous and complex inquiry. The Judge failed to appreciate this context in applying the test.
70     Relying on the Federal Court of Appeal's decision in Beno, the Attorney General submits that the Commission falls in the middle of the Newfoundland Telephone spectrum and argues that the applicable test is whether there is a reasonable apprehension that the Commissioner would reach a conclusion on a basis other than the evidence. In the alternative, the Attorney General submits that the applicable test is the reasonable apprehension of bias test established in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 [hereinafter Committee for Justice and Liberty].
71     The Applicant submits that the test for assessing Commissioner Gomery's impartiality is the reasonable apprehension of bias test or reasonable person test as enunciated in the dissenting judgment of Justice de Grandpré in Committee for Justice and Liberty and subsequently adopted by the Supreme Court of Canada. The Applicant argues that since the Commissioner is a judge and was appointed as Commissioner because of his judicial skills, the applicable test for determining whether or not there is a reasonable apprehension of bias on the part of the Commissioner is the same as that which is applied when assessing the impartiality of a judge presiding over a trial. Put simply, the Applicant argues that because the Commissioner in this case was selected because of his skills as a judge, although he was sitting as a Commissioner in the hearings, he should be held to the same standard of judicial neutrality expected of a judge presiding over a trial.
72     Although the Commissioner's experience as a judge may have assisted him in his role as Commissioner, he was not sitting as a judge while performing his duties as a Commissioner. Thus, it does not necessarily follow that his impartiality is to be assessed using a strict application of the reasonable apprehension of bias test.
73     After considering the jurisprudence cited by the parties, I conclude that the Commission falls somewhere between the middle and high end of the Newfoundland Telephone spectrum. Thus, using a flexible application of the reasonable apprehension of bias test, I adopt the test enunciated by Justice de Grandpré in Committee for Justice and Liberty. That test is:

                    [T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information...[T]hat test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that Mr. Crowe [the Chairman of the Board], whether consciously or unconsciously, would not decide fairly": Committee for Justice and Liberty, supra, at p. 394.
74     As Justice Cory stated in R. v. S.(R.D.), [1997] 3 S.C.R. 484 [hereinafter R.D.S.], the test for a reasonable apprehension of bias "contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case" (R.D.S. at para. 111). He further noted that "the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including 'the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold'" (ibid.) [emphasis in original]. He added "the threshold for a finding of real or perceived bias is high" and "a real likelihood or probability of bias must be demonstrated...a mere suspicion is not enough" (R.D.S. at para. 112-113).
75     I harken back to the words of Lord Denning in Metropolitan Properties Co. (F.G.C.), Ltd.. v. Lannon, [1968] 3 All E.R. 304 (C.A.) at p. 310, 1 Q.B. 577 (C.A.) at p. 599, wherein he stated:

                    [I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand [cited cases omitted]. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough [cited cases omitted]. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased."
76     There exists a presumption that a decision-maker will act impartially, and "[m]ore than a mere suspicion, or the reservations of a 'very sensitive or scrupulous conscience,' is required to displace that presumption" (Beno (FCA), supra, at para. 29). The onus of demonstrating bias lies with the person who is alleging its existence and the threshold for finding a reasonable apprehension of bias is high. But, where a reasonable apprehension of bias is found, the hearing and any decision resulting from it will be void, since the damage created by such an apprehension of bias cannot be remedied. This is consistent with Justice Le Dain's decision, speaking for the Court in Cardinal v. Director of Kent Institution, supra, at p. 661, wherein he stated:

                    [...] I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
97     The Attorney General relies heavily on these assurances by the Commissioner in support of the argument that the Commissioner had not formed premature conclusions. That the Commissioner made assurances that he had not prejudged any issue is irrelevant, as one may be unaware of their own biases. In R v. Gough, [1993] A.C. 646 (H.L.) at p. 655 (quoted by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259), Lord Goff, quoting Devlin L.J. in The Queen v. Barnsley Licensing Justices, [1960] 2 Q.B. 167 (C.A.), stated:

                    Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although nevertheless, he may have allowed it unconsciously to do so. The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sit.
98     The determinative test, as stated above, is whether a reasonably well-informed person, viewing the matter realistically and practically, would conclude that there is a reasonable apprehension of bias. As I have already stated, I am satisfied that the test for a reasonable apprehension of bias has been met in this case.
99     Lastly, I note that Commissioner made other inappropriate comments that seemingly tainted the purpose and focus of the Inquiry. On a number of occasions, the Commissioner referred to the proceedings as a "show" or "spectacle" and even declared: "I have the best seat in the house for the best show in town." Upon his retirement, the Commissioner further commented: "I was criticized for saying it but I stand by what I said -- I had the best seat in the house for the best show in town." "It was an amazing spectacle. It was a drama with surprise discoveries almost every day, with eminently competent lawyers. It was an ideal situation for the person running the show." "It wasn't a rehearsed spectacle, but to see witnesses, one after the other, making startling revelations after being confronted with documents they couldn't explain was exciting and engrossing." Although these statements do not indicate a reasonable apprehension of bias toward the Applicant per se, they had the effect of transforming the nature of the inquiry from one that was a fact-finding mission with the hallmarks of fairness into an "exhibition" of misconduct on the part of senior government officials.
100     The Applicant has also raised concerns about the Commissioner's preoccupation with the media. He argues that Commissioner Gomery was seduced by the media and the limelight to such an extent that the judicial instinct for fairness, objectivity and restraint which the Applicant was entitled to expect of him gave way to a preoccupation on his part with focussing media (and public) attention upon himself, a course of conduct which preordained unfavourable findings about the Applicant in the Report.
101     I agree with the Applicant that the Commissioner became preoccupied with ensuring that the spotlight of the media remained on the Commission's inquiry, and he went to great lengths to ensure that the public's interest in the Commission did not wane. This preoccupation with the media outside the hearing room had a detrimental impact on the fairness of the proceedings.
102     I note that although the Commissioner, in his ruling on the Motion for Recusal, acknowledged that some of the statements he had made during the interviews were, in his words, "ill-advised" and "inappropriate." He further acknowledged that his statements detracted attention from "the real objective of the Inquiry, which [was] to get at the truth of the matters which were subject of Chapters 3 and 4 of the Report of the Auditor General" and expressed his regret for this distraction. However, this acknowledgement and expression of regret, in my view, were incapable of repairing the harm that the Commissioner caused to the Applicant's reputation and the irreparable harm caused to the fairness or apparent fairness of the proceedings.
103     Considering again the basic principles applicable to commissions of inquiries so succinctly set down by Justice Cory in Krever, above, I do not read that it is a function of a Commissioner to grant press interviews nor to express, during such an interview or interviews, an opinion as to what the evidence showed, and more particularly, to express that opinion before all of the evidence had been heard from the witnesses who were called to testify or were to be called to testify. Although I do not necessarily agree with the Applicant that the Commissioner's preoccupation with the media "preordained unfavourable findings about the Applicant in the Report," I find that the Commissioner's conduct outside the hearing room had a detrimental effect on the fairness of the proceedings in that the Applicant was put in a position in which he was caused to appear before a Commission that had publicly questioned his conduct and integrity before he had even appeared before the Commission.
104     The media is not an appropriate forum in which a decision-maker is to become engaged while presiding over a commission of inquiry, a trial, or any other type of hearing or proceeding. Indeed, the only appropriate forum in which a decision-maker is to become engaged is within the hearing room of the very proceeding over which he or she is presiding. Comments revealing impressions and conclusions related to the proceedings should not be made extraneous to the proceedings either prior, concurrently or even after the proceedings have concluded.
105     I stress that even in public inquiries where the purpose of the proceedings is to educate and inform the public, it is not the role of decision-makers to become active participants in the media. First and foremost, a decision-maker's primary duty is to remain impartial, with an open mind that is amenable to persuasion. It is only when all the evidence is heard and after deliberating on that evidence that a decision-maker is to form conclusions and, finally, to issue a judgment or report on the basis of these conclusions. It follows that a decision-maker speaks by way of his or her decision. This is the only appropriate forum in which a decision-maker should state his or her conclusions. As my colleague, mentor and friend, the late Justice Frank Collier once said to me when I was first appointed as a judge, "Let the decision speak for itself."
106     I am convinced that an informed person, viewing the matter realistically and practically and having thought the matter through would find that the Commissioner's statements to the media during the Phase I hearings, after the release of the Report and upon his retirement, viewed cumulatively, indicate that the Commissioner prejudged issues under investigation and that he was not impartial toward the Applicant. The nature of the comments made to the media are such that no reasonable person, looking realistically and practically at the issue, and thinking the matter through, could possibly conclude that the Commissioner would decide the issues fairly.
107     I do note, however, that with respect to the other statements raised by the Applicant in support of his argument on this point and which I have not dealt with directly in my reasons, I do not find these remarks establish a reasonable apprehension of bias. For example, Commissioner Gomery's comments that his findings could prove "very harmful" to then Prime Minister Paul Martin's career and that the Report "might have more consequences for a minority government than for a majority government" are simply indicative of Commissioner Gomery's awareness of the public interest in the inquiry and the possible ramifications the Report could have in the political sphere. Such awareness does not amount to a reasonable apprehension of bias in my view.
108     Given that I have already found a reasonable apprehension of bias on the part of the Commissioner toward the Applicant, I need not address the remaining issues in this application. At the hearing, the parties made submissions regarding the effect of a finding of a reasonable apprehension of bias on the Commissioner's Report if one were to be found. I conclude that, as a result of my finding that there existed a reasonable apprehension of bias on the part of the Commissioner toward the Applicant, the findings in the Report, as they relate to the Applicant, must be set aside. This is consistent with the decision of the Supreme Court of Canada in Newfoundland Telephone, supra, wherein Justice Cory, writing for the Court, held that where a reasonable apprehension of bias is found to exist on the part of a tribunal, its decision must be treated as void.

Resources

Walter Rodney COI, June 26, 2014 - Part 1, Stabroek News, June 26, 2014

Walter Rodney COI, June 26, 2014 - Part 2, Stabroek News, June 26, 2014

Walter Rodney COI, June 26, 2014 - Part 3, Stabroek News, June 26, 2014

Walter Rodney COI, June 26, 2014 - Part 4, Stabroek News, June 26, 2014

Capitol News, June 26, 2014

GINA, June 26, 2014

Demerara Waves, Rodney Inquiry: Gerry Gouveia believes he transported Gregory Smith to Kwakwani, June 26, 2014

Gouveia flew plane that spirited Smith away — Guyana Times, June 26, 2014


Kaieteurnewsonline, Chairman has shown his bias – Harmon, June 27, 2014


********
Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.

Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)

Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)

Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.

Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.

Selwyn has appeared in  Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.


Wednesday, June 25, 2014

Walter Rodney Commission of Inquiry - Robert Allan Gates aka Clive De Nobrega Gibbs


"We are trying to get to the truth of this matter and every single document that exists and should exist, should be here that is what my point is." Selwyn A. Pieters

"Any acceptance of that discreditable witness evidence without corroboration diminishes the credibility of any decision that is made in respect to that evidence." Selwyn A. Pieters

"It is expected, given the absence of corroborative documents, the convicted fraudster will have a triumphant feeling that he managed to hoodwinked the panel."  Selwyn A. Pieters

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on June 25, 2014

As a lawyer with significant experience in human rights, civil rights and non-adversarial matters, I was retained to represent its interest of the Guyana Trades Union Congress (GTUC) at the Walter Rodney Commission of Inquiry. I am currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

Robert Allan Gates aka Clive Albert  De Nobrega Gibbs now known as Robert Allan Gates evidence goes primarily to iii and iv)of the Terms of Reference, which are:
(iii) To specifically examine the role, if any, which the late Gregory Smith, Sergeant of the Guyana Defence Force, played in the death of Dr. Walter Rodney and if so, to inquire into who may have counselled, procured, aided and or abetted him to do so, including facilitating his departure from Guyana after Dr. Walter Rodney’s death;
(iv) To examine and report on the actions and activities of the State, such as, the Guyana Police Force, the Guyana Defence Force, the Guyana National Service, the Guyana People’s Militia and those who were in command and superintendence of these agencies, to determine whether they were tasked with the surveillance of and the carrying out of actions, and whether they did execute those tasks and carried out those actions against the Political Opposition, for the period 1st January, 1978 to 31st December, 1980...
On the lack of any records and/or corrorobarative documents

June 06, 2014
Mr. Selwyn Pieters: Mr. Chairman, at the present time my request by way of an oral application is for Mr. De Nobrega‟s police file, for any notes that Mr. De Nobrega would have taken in his Police issue memo book while he was a member of the Guyana Police Force for the material time in question. For his certificate of discharge, when he left the Guyana Police Force and for his fact file that would have been held by the Guyana Police Force. Those are all materials that should have been properly before the Commission, in my respectful submission, prior to this Witness giving evidence; particularly his memo book of any notes he would have taken at the material time in question.

Mr. Chairman: I did not understand the Witness to be saying anything about notes taken many years ago when he was a Police. I understood him to be saying that he did make some notes for the purposes of today.
Mr. Pieters: Mr. Chairman, what you are being asked about, you are being asked about a person who functioning in an official capacity as a member of the Guyana Police Force appearing before the Commission. The Guyana Police Force issues memo books to its members and this man is coming to give evidence as to is official duties at the material time and the request is that any notes that this man would have taken while as a Guyana Police Force member be produced. He already mentioned that he was in intelligence and that they took notes so attempts have to be made to the Guyana Police Force to get those notes, and there was warning since 22nd March, 2014, that this person was coming before the Commission. So I guess the issue is why was all of the materials necessary for this person‟s evidence not here; at least that is the position from the GTUC perspective that any notes, any documents pertaining to the witness service within the Guyana Police Force and the Special Squad should have been here, and it is not here and the Witness has given evidence and there is nothing to corroborate it.

Williams deals with the issue again on June 24, 2014
Mr. Basil Williams: Mr. Chairman, you see what he is saying? This reiterates our point that we are supposed to have all his records because the Police Force is still in existence. It is not any overnight institution, but we are dealing with a witness who is telling you to get the record when the record ought to have been with us. This is not the first time that we have raised it and no effort is being made, but we have a witness coming and making all kinds of statements, we have a record, but no records come to us.

Mr. Chairman: I think we have dealt with that already, and I agreed with you that that the records should be with us.

Pilgrim Also tackles this issue
Mr. Andrew Pilgrim: Are you aware of the existence of any documents that can establish the period during which you worked in the Police Force in Guyana?
Mr. Gates: I think Mr. Balram Persaud, the Assistant Commissioner, Administration, knows me. He can provide such documents.
Mr. Pilgrim: You have the belief that such documents are in existence?
Mr. Gates: Yes, especially a copy of the real Letter of Release which should be in the personal file.

Gates is an interesting species of witness

Mr. Glen Hanoman: Mr. Gates, I wish to get one thing out of the way very quickly. Are you presently a prisoner at the Georgetown Prison in Camp Street.
Mr. Gates. Yes, I am presently serving for 48 months on what I would call „trumped-up charges‟ to prevent me from testifying here. The matters were all civil in nature and the police somehow or the other manipulated them, if that is the correct word.
Mr. Hanoman: Before you confuse us you are serving a prison sentence of 48 months in relation to what offense?
Mr. Gates. Allege obtaining by false pretence.
Mr. Hanoman: Obtaining by false pretence.
Mr. Chairman: What is the sentence please?
Mr. Hanoman: 48 months is the sentence imposed?
Mr. Gates. Yes, Sir.
****
Mr. Pilgrim: You made it clear to this Commission on the first day that you gave evidence a few weeks ago that you are currently an inmate and is serving a sentence. Has any offer, inducement or incentive of any kind, in relation to that sentence been offered to you by any party, in relation to anything you do before this Commission?
Mr. Gates: No, Sir. My date of release remains the 26th September, 2017.
****

It is expected, given the absence of corroborative documents, the convicted fraudster will have a triumphant feeling that he managed to hoodwinked the panel.

Gates did not even make the Force Orders as completing his Probationary Constable period and advancing to Substantive Constable

Mr. Hanoman: Very well. You joined the Guyana police Force in June, 1977?
Mr. Gates. Yes, Sir.
Mr. Hanoman: Having joined the Guyana Police Force, can you give us a little idea what your immediate tasks were?
Mr. Gates. Having completed my initial six-month training, I was sent to the Beat Duty Centre on Water Street to do the normal Beat Duty after which I was selected to attend the Criminal Investigation Induction Course. Subsequently, I was sent to the Criminal Investigation Department (CID) Special Squad.
Cr. ex.
Mr. Williams: Look if you join the Force in 1977 you were in training for six months.
Mr. Gates: Yes Sir.
Mr. Williams: The basic training. You know, you were confirmed after how long such training?
Mr. Gates: I never dealt with confirmation.
Mr. Williams: No Police Constable?
Mr. Gates: Two years.
Mr. Williams: Two years and that would have made you; you would have to be published in the Orders?
Mr. Gates: I did.
Mr. Williams: You would have to be published in the Orders?
Mr. Gates: Of course.
Mr. Williams: Is not that so?
Mr. Gates: Yes.
Mr. Williams: Look we do not have that record, but you were junior, very junior, in 1978 and secondly, it does not matter what you say you were undercover or not. If you said you were promoted to Sergeant.
Mr. Gates: I never said I was promoted, I said they told me that. I was not issued with any such letter. That was told to me to motivate me, but I was more concerned about the pay.
Mr. Williams: I know you were more concerned about that pay.
Mr. Chairman: Mr. Gates, you are well advised to wait until you are asked a question.
Mr. Williams: You know I am going to ask you if your promotion to Sergeant was published in the Orders so you decided to say that you did not say that.
Mr. Gates: Like I said, I do not know. That was told to me.
Mr. Williams: I am putting it to you that the Police Force could not pay you any money for any higher rank without it being published in the Orders.
Mr. Gates: Man, there was a special arrangement at police finance office bring former Commissioner Brumel, he knew about that special arrangement, he was a Corporal then.
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Mr. Williams: You calling Brummel name again. I already see the police need to have a Lawyer in here, I am representing the PNC.
Mr. Gates: I have to give you information so that you could bring people here to confirm.
Mr. Williams: So Comrade Chairman, I would be grateful if by the time we are ready to address you that we have all the records relating to this Witness so that we could use for the purposes of enlightening.
Mr. Chairman: This Witness and generally.
Mr. Williams: So Sir, I am glad you consider that we are hamstrung.
Mr. Chairman: The Commission itself might be hamstrung not the Commission Counsel.

Gates claim to be paid as a Superintendent of Police whilst a Probationary Constable cannot be believed in the absence of documentary evidence
Examination in Chief

Mr. Hanoman: Yes, so your salary was in the vicinity of 350 to 365, you are saying?
Mr. Gates: Yes, the 350 was the basic.
Mr. Hanoman: That was your salary at the time. And what was the offer made?
Mr. Gates: The offer…. The increase?
Mr. Hanoman: Yes.
Mr. Gates: Yes, because Skip Roberts told me –I do not know whether he was bluffing me, or not- I would make a raise available to you for you to be promoted from Constable to Sergeant, with a $500 increase; which I knew at the time was the pay of a Superintendent Police.

Cross-examination
Mr. Clarke: You went undercover on the recommendation of “Skip” Roberts, is that correct?
Mr. Gates: Yes. On instructions.
Mr. Clarke: Instructions. You were given a salary increase equivalent of a superintendent?
Mr. Gates: Yes, Sir.
Mr. Clarke: Was this approved internally?
Mr. Gates: It had to be.
Mr. Clarke: Was it authorised by the Finance Officer?
Mr. Gates: I do not know, Sir.
Mr. Clarke: Were you ever promoted to Superintendent?
Mr. Gates: I was never issued any document to such effect.
Mr. Clarke: No paper work completed?
Mr. Gates: No, Sir.
Mr. Clarke: You were not gazette either?
Mr. Gates: No, Sir.

Gates response on the Constitution (1966)

Mr. Clarke: Do you have any training on the Constitution of Guyana?
Mr. Gates: Constitution?
Mr. Clarke: Yes.
Mr. Gates: No. I have never really paid much attention to the… except what we were taught in classroom of a person‟s right to…
Mr. Clarke: Which classroom is this?
Mr. Gates: The Police Training College.
Mr. Clarke: And you did not pay much attention to that?
Mr. Gates: No. Like I said, they would teach us certain basic things like the rights of an arrested person and stuff like that, the constitutional rights.

His Claim in Respect to Dr. Roopnarine's detention

Mr. Gates: …because I had other duties, when not working at this Special Squad Office.
Mr. Hanoman: I see. Yes, 1979, you were in this Special Squad Office.
Mr. Gates: Like I said, I cannot remember the month. I can remember the year; when Dr. Rupert Roopnarine was brought into custody for allegedly burning down the Ministry of National Development. Prior to him coming there, I was given certain instructions by my commanding officer, Inspector Ulrich London, at the time, not to allow him any phone calls, visits, etcetera.
Mr. Hanoman: He was not behind bars or in a cell or anything like that?
Mr. Gates: No. The Special Squad Office does not have cells.
Mr. Hanoman: I see. You had interactions with Dr. Rupert Roopnarine?
Mr. Gates: Yes, as to why he was arrested. I was concerned about the special instructions given. I wanted to know if the prisoner was a high risk prisoner because I had never heard his name before getting involved in any criminal act, so we had several conversations and I think there was an opening during the discussion that he wanted a bodyguard.
Mr. Hanoman: So you came to learn that Dr. Roopnarine wanted to have a body guard?
Mr. Gates: Yes.
Mr. Hanoman: Were you offered that position?
Mr. Gates: Well, yes. I will say I was offered that position, if I was to separate myself from the Guyana Police Force.
Mr. Hanoman: And you were receptive to taking up that job?
Mr. Gates: Yes, I was receptive because during that evening, after listening to what he had to say I became very sympathetic, if you were to use that word.

Gates despite his professed love of Dr. Roopnarine was exposed of acting in his own self interest
Examination in Chief
Mr. Gates: I was very sympathetic towards the cause and what they were going through in their struggle for justice and equality and whatever.
Mr. Hanoman: You were sympathetic…
Mr. Gates: Towards the cause of the WPA.
Mr. Hanoman: Towards the cause of the WPA.
Mr. Gates: Yes, because I know what they were going through.
Mr. Hanoman: What were they going through?

Mr. Gates: Well, they had surveillance effected on them
Cross-examination
Mr. Clarke: You mentioned several times that you were sympathetic towards the WPA's  cause?
Mr. Gates: Yes.
Mr. Clarke: It was also established that whilst you were undercover you were working as a double agent. Do you agree with that?
Mr. Gates: I do not agree with the term “double agent”.
Mr. Clarke: How would you describe it?
Mr. Gates: “Double agent” would mean someone who is… I do not agree with the term, but it was used during the…
Mr. Clarke: How would you describe your role?
Mr. Gates: I was an agent of the State.
Mr. Clarke: An agent of the State. That does not explain your relationship with Dr. Roopnarine and spying on him.
Mr. Gates: Yes. I was an agent of the State, sent to infiltrate the WPA.
Mr. Clarke: So you were working for the Police for pay and the WPA for cause?
Mr. Gates: Say that again.
Mr. Clarke: Would that be accurate to say that you were working for the State for pay and the Working People‟s Alliance for cause?
Mr. Gates: Yes, cause and better remuneration.
Mr. Clarke: You strongly believed in the Working People's Alliance cause?
Mr. Gates: At the time.
Mr. Clarke: Which aspects did you believe in really? Could you help me in that issue because you kept saying that Dr. Roopnarine was a good man, you believed in their cause?
Mr. Gates: The fight for equality and justice.
Mr. Clarke: Right. Is that it?
Mr. Gates: Basically, a number of others that I cannot recall at this time.
Mr. Clarke: Your belief in their cause was equality and equal rights, is that what you are stating?
Mr. Gates: …and justice.
Mr. Clarke: And $1500 a month was it?
Mr. Gates: Yes.
Mr. Clarke: Okay.
Mr. Chairman: That was part of the cause?
Mr. Gates: With every cause these is a…
Mr. Clarke: Okay. I would just like to ask you a few general questions about your day-to-day duties with Dr. Roopnarine. Where did you go when you were his bodyguard, basically?
Mr. Gates: Well from the WPA‟s office to the University of Guyana and to several residences.
....
Mr. Clarke: Have you ever given Dr. Roopnarine any advice about acquiring arms and ammunition?
Mr. Gates: I never gave any advice.
Mr. Clarke: It was a need to know basis you operated on with him as well?
Mr. Gates: No.
Mr. Clarke: You mentioned that you held onto ammunition for him on several occasions is that correct?
Mr. Gates: Yes.
Mr. Clarke: Do you remember how many times this was?
Mr. Gates: Two or three times, I cannot remember exactly.
Mr. Clarke: You did not give your opinion about him collecting arms and ammunition?
Mr. Gates: No.
Mr. Clarke: Even though you knew they were loaded and over packed?
Mr. Gates: No.
Mr. Clarke: This is a man that you thought was a good guy, right?
Mr. Gates: Yes.
Mr. Clarke: You also said you absconded from… There was once when you mentioned that you were supposed to give him training for G3 rifle…?
Mr. Gates: Yes.
Mr. Clarke: …and you absconded from this?
Mr. Gates: Yes.
Mr. Clarke: That was because you thought Dr. Roopnarine was a good guy, and you were standing too close in case the bombs exploded?
Mr. Gates: Yes, Sir.
Mr. Clarke: Okay so it is your own personal safety you were concerned about then as opposed to Dr. Roopnarine?
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Mr. Gates: No. No like I said he was a good man.
Mr. Clarke: Okay. You said that the retired Commissioner of Police, Mr. Lewis, is one of the best in the Caribbean and you were handled by him, is that correct?
Mr. Gates: Not the best Commissioner, the best Intelligence Administrator.
Mr. Clarke: One of the best Intelligence Administrator, and you were handled by him?
Mr. Gates: Yes, Sir.
Mr. Clarke: He provided your training?
Mr. Gates: Yes, on the job.
Mr. Clarke: You said you hired other agents in the WPA including the bodyguard of Walter Rodney?
Mr. Gates: Yes, Sir.
Mr. Clarke: Did you question your supervisor about the source of his funding?
Mr. Gates: Yes, I did.
Mr. Clarke: What did he tell you?
Mr. Gates: He said it was coming from the Ministry of National Development.
Mrs. Samuels-Brown: Ministry of National…?
Mr. Gates: Development.
Mrs. Samuels-Brown: Thanks.
Mr. Clarke: You mentioned that you were asked to place two devices; one in the office at Tiger Bay and then another one on his car?
Mr. Gates: Yes.
Mr. Clarke: Do you have any training for this?
Mr. Gates: On the job.

Slack Intelligence Officers - If you really believe he was

Mr. Clarke: That is correct. When you met him, the first time, he told you that he was an agent of the state?
Mr. Gates: Pardon me?
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Mr. Clarke: He told you that he was an agent of the stage?
Mr. Gates: Yes.
Mr. Clarke: Why were you so comfortable revealing to him your position?
Mr. Gates: Because, like I said, it was somebody I knew from way back.
Mr. Clarke: You had not seen him for a very long time.
Mr. Gates: Yes but I saw him in and out. He was somebody whose family I knew well. I knew he was somebody I could have trusted, I could have confided certain things in.
Mr. Clarke: You knew that you could trust him…?
Mr. Gates: Yes.
Mr. Clarke: …and confide in him. Did you not think that he could possibly be a double agent as well like yourself?
Mr. Gates: He could have been but then there is something called damage control.
Mr. Clarke: Damage control? Would it not be exposing yourself?
Mr. Gates: It would have been his word against mine.
Mr. Clarke: Did you not reveal your position to him a bit too fast?
Mr. Gates: I do not think so. It was necessary.
Mr. Clarke: It was necessary? Why is that?
Mr. Gates: Because I thought it best that we should share intelligence because I knew how the State operated then.
Mr. Clarke: Earlier you said Mr. Lewis is one of the best in the Caribbean in intelligence training?
Mr. Gates: Yes, Sir.
Mr. Clarke: Was this the kind of stuff that he taught you?
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Mr. Gates: He taught me?
Mr. Clarke: Yes, in terms of dealing with covert operations?
Mr. Gates: Well he would give lectures from time to time.
Mr. Clarke: To reveal your status to a past friend?
Mr. Gates: No. He never said that. He never told me to do that.
Mr. Clarke: That was on your own?
Mr. Gates: There are sometimes when you are on the ground you have to make you own decisions for your own personal safety.
Mr. Chairman: That was his judgment?
Mr. Gates: My judgment.
Mr. Clarke: You were not offered any money for that?
Mr. Gates: Offered any money?
Mr. Clarke: Yes.
Mr. Gates: For?
Mr. Clarke: Speaking with Gregory Smith. There was not any potential for financial gain in that situation?
Mr. Gates: No.
Mr. Clarke: Okay.
Mr. Gates: I knew what he was on so I taught it best… We needed to share intelligence as “countrymen”.
Mr. Chairman: You mean “countrymen” as opposed to “town-men”?
Mr. Gates: Yes we were both from the country, from the riverine area so…
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Mr. Clarke: Just one final question, Mr. Gates, you mentioned that you respected Dr. Roopnarine?
Mr. Gates: Yes, Sir.
Mr. Clarke: You admired him?
Mr. Gates: Yes, Sir.
Mr. Clarke: He also paid you handsomely?
Mr. Gates: Yes, Sir.
Mr. Clarke: Why did you not reveal to him your status as a double agent if you were supportive of his cause and if indeed you did think he was a good man?
Mr. Gates: There are a lot of things that I did not do that I was told to do.
Mr. Clarke: Such as?
Mr. Gates: That could have caused harm to him.
14.20hrs
Mr. Clarke: Such as?
Mr. Gates: Many things, like that incidence at the meeting that Rabbi invaded. I was given instructions to back off and let them harm him. I did not.
Mr. Clarke: What did you do?
Mr. Gates: I drew my weapons and if they had come one step further I would have killed all of them.
Mr. Clarke: All of them.
Mr. Gates: I would have shot them between the eyes.
Mr. Clarke: You gave him three shipments or three batches rather of ammunitions that were over packed that could have potentially killed them?
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Mr. Gates: I would have ensured that he did not use them because I had to keep them for a while.

******
It was a junior lawyer that cross-examined the convicted fraudster, double-agent and jailhouse informant and even then his credibility was significantly shaken.



********
Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.

Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)

Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)

Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.

Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.

Selwyn has appeared in  Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.









Saturday, June 14, 2014

Walter Rodney Commission of Inquiry - Joseph Hamilton

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on June 13, 2014

As a lawyer with significant experience in human rights, civil rights and non-adversarial matters, I was retained to represent its interest of the Guyana Trades Union Congress (GTUC) at the Walter Rodney Commission of Inquiry.

Joseph Hamilton a former House of Israel member provided evidence. In examination in chief he described himself variously as an oppressor, suppressor, oppressed. He claimed to have received military and bomb-making training from an officer of the Guyana Defence Force. Claimed to be a whistleblower. The evidence of Joe Hamilton covered a spectrum of areas and the areas that are of interest are excerpted below:

Documents available that were not produced prior to giving his evidence:

Mr. Pieters: Mr. Hamilton, do you have any documents at all, of whatever nature with respect to
your involvement with the House of Israel between 1978 and 1980? Do you have any documents
at home or in any other place that you have control?
Mr. Hamilton: I might have documents. I might have photographs. I suppose my sons might
have photographs of the period when I was in the House of Israel.
Mr. Pieters: Can you make an undertaking to provide that to the Commissioner through its
Counsel?
Mr. Hamilton: I would if that is the request of the Commission?
Mr. Pieters: This is the request of one of the Counsels and my understanding is that you can make an
undertaking to provide it to Commission's Counsel. Counsel can make that request of you, if you
have those documents.
Mr. Hamilton: Yes, if I can locate photographs of the time that I was in the House of Israel, I will certainly make those copies available to the Commission.
Mr. Chairman: We would appreciate it if you can.

Opinion Evidence from a lay witness:

Ms. Rahamat: We had some difficulties with the photocopier yesterday even in the evening and Secretariat had to sort that out, my apology; the copies were not made available for everyone at this time. I would read from paragraph 480. “Suddenly the crowd of demonstrators was charged from in front of the gang of young men led by members of the House of Israel group carrying staves, cutlasses and bayonet-looking knives. They attacked the crowd, they scattered in all directions. Some running back down Brickdam, others into the house opposite the police station. Mike James was attacked by three men and received a blow on the head that stunned him. From the other side of the road, Father Darke started to take photographs of the attack on Mike. Three of the gangs started towards Father Darke, he saw them coming and started to run, but was encumbered by his cameras strung around his neck. After a few yards, he tripped and fell. They started to beat him with staves, and as he fell on the grass verge, they continued to beat him. One of them took his camera and started beating him with it and then one of then drew an old bayonet from his waistband and stabbed him in the back. The plain clothes policemen fired two shots in the air to scattered the assailants and then effected an arrest.”
Now, I refer to this passage Mr. Hamilton, and I would seek your opinions because your evidence yesterday was I had a full view of the scene. If you had a full view of the scene, and you said you were approximately the same distance you are away from me today. This eyewitness account that I have read, did you see what the gentleman said he saw?
Attorneys for the Guyana Trades Union Congress (GTUC) [Mr. Selwyn Pieters]: Mr. Chairman, before he answers that question, he has already answered the question: “Did you see that Mike James was beaten?” and his answer was that “not that I can recall”. He has no place here regardless to what the rules of evidence is in this tribunal to give opinion evidence. He is not an expert and if he says that he did not recall or he did not see regardless of what my friend reads into the record he has not give opinion on it.
Mr. Chairman: Do not make too much of the use of the word “opinion” there. I think it is a little out of place, but do not make too much of it. Is your recall of the scene of that day, I think that is the question.
Mr. Pieters: Well then let her ask that question as opposed to asking for an opinion.

Hamilton's explanation in Chief of his regrets

Ms. Rahamat: Mr. Hamilton do you regret your involvement in the activities you were involved in, in relation to the House of Israel between the period 1978/1980?
Mr. Hamilton: I will answer that question this way. A 60-year-old grandfather sees the world differently to a 23-year-old young man and therefore, if the 60-year-old grandfather would be speaking to his 23-year-old young son, what he will say is that you made a bad choice, you made a bad decision, and your decision caused great harm to people, so yes, there are regrets.
12.30hrs
Mr. Hamilton: I continue to live with that past, it is here with me and so, I have no difficulty presenting the past as I know it, as I participated in it. As I said, I think when I came to the Commission the first time, I think Mr. Hanoman asked the question about whether I am prepared for this. I indicated to him that the only hurdle I had to cross is having a conversation with my wife and children, and once they indicated that they are prepared to have me stand public scrutiny, what any other one said about what I am doing, it matters not to me.
Ms. Rahamat: With reference to paragraph 22 of your written statement, Mr. Hamilton, what would you give as one of the contributing factors or the reason behind the behavior and the attitude of yourself and the House of Israel between the period 1978 to 1980?
Mr. Hamilton: I said in my statement, without seeking to excuse the behavior and attitude of myself and Members of the House of Israel, I would want to say that Rabbi Washington and the House of Israel were victims of the specific time because the time was framed in the mantra of you are either with me or against me. The House of Israel chose to be with Burnham and the PNC Government of the day. I suspect because of two reasons, firstly, Rabbi Washington being a fugitive from the US refusing to accede to Burnham’s and the PNC’s request would have found himself on the first plane out of Guyana and secondly, we bought the argument that Walter Rodney and the WPA were tools of the Indian dominated PPP party, who was seeking power from the African dominated political party, the PNC.

Hamilton's explanation when I cross-examine him on his failure to apologize to Eusi Kwayana and Dr. Rupert Roopnarine at the first opportunity

Mr. Pieters: Yesterday you were questioned by Commission Counsel and at page 67 and page
68 of the transcript... I will read it to you and then I will pose my question. The Commission
Counsel asked you, "Mr. Hamilton, do you regret your involvement in the activities you were
involved in, in relation to the House of Israel, between the period 1978/1980?" and your
response was, Mr. Hamilton, "I will address the question this way. A 60-year-old grandfather
sees the world differently to a 23-year-old young man and therefore if the 60-year-old
grandfather would be speaking to his 23-year-old young son what he will say is that you made a
bad choice, you made a bad decisi.on and your decision caused great harm to people, so yes, there
are regrets." And you continued. "I continued to live with the past. It is here with me and so I
have no difficulty presenting the past as I know it, as I participated in it. As I said, I think when I
p. 133

came to the Commission the first time, I think, Mr. Hanoman asked the question about whether I
am prepared for this. I indicated to him that the only hurdle I had to cross is having a
conversation with my wife and children and once they indicated that they are prepared to have
me stand public scrutiny, what any other one said about what I am doing, it matters not to me." I
am going to suggest this to you yesterday 89 year old Eusi K wayana was sitting in the audience
watching you give your evidence, Mr. Roopnarine was in the audience as well, Mr. Kwayana is
no· longer here because he had return to the United States why did you not stand up yesterday
look at Mr. K wayana who you heard testify about the suffering he and his colleagues
encountered at the material time and say you were sorry. Why didn't you express that remorse?
Mr. Hamilton: Mr. Chairman and Commissioners Mr. Pieters is pre-empting me it was my
intension when I am concluding to speak to the specific matter that he has raise and other things.
Mr. Pieters: Mr. Kwayana is no longer here. You were asked that question.

The Murder of Father Darke and His Camera Being Stolen while he lay there dying

Mr. Pieters: Now on the day that the arson five appeared at the Georgetown Court you testify
that you were in Buxton.
Mr. Hamilton: Yes.
Mr. Pieters: Right and you later travelled to Georgetown after things died down somewhat so
you were not an eye witness to most of the events that took place
Mr. Hamilton: That is when things were starting, not dying down. The Court had concluded
Mr. Pieters: The Court had ... You were in Georgetown when the real action began.
Mr. Hamilton: If you want to categorise it as "real action" yes
Mr. Pieters: The extent to which you were involved in it was to take Father Darke's camera
after he was stabbed.
Mr. Hamilton: I never said that at that time Father Darke was stabbed. I could not speak to
when he was stabbed. My statement said and I repeat that I saw a white guy who had a camera
with Mike James who I knew stumbled somewhere in the vicinity of Ministry of Home Affairs .
His camera was released when he stumbled that camera was handed to me by a brother that I
named. So I never said that I saw when Father Darke was stabbed.
Mr. Pieters: I am going to suggest to you that with your "thuggish" mentally at the material time
you were the one that robbed Father Darke of his camera so you can sell it to make a quick
dollar.
p. 132
[Laughter]
....
Mr. Hamilton: You cannot suggest that I was in any bad economic position to sell a camera. No
part of my evidence suggested that so I would ask, Mr. Commissioner, that Mr. Pieters withdraw
and refrain from suggesting that I sold some camera
Mr. Chairman: Order, order!
.... Mr. Pieters: Mr. Chairman, the witness in the box answered my question so I am prepared to
move on to my last question.
Mr. Chairman: He rejected your suggestion, yes.
Mr. Pieters: That is right and so I am prepared to move on to my last question.
Mr. Williams: How much did he get if for?
[Laughter]

On the Guyana Defence Force supplying weapons to the House of Israel

Mr. Pieters: You mentioned that the first time you saw that the Guyana Defense Force was
provided with high power weapons was when you met with Commission Counsel and he showed
you the requisition.
Mr. Hamilton: Yes.
Mr. Pieters: Well let me ask you this: why would you have been left out of the circle of
knowledge that the House of Israel posed high powered G3 riffles capable of firing 7.62 rounds
of ammunition? Why would you have been left out that circle?
Mr. Hamilton: Mr. Chairman, again, when that document was shown to me, I indicated that as
far as I know nothing, except for Browning pistols, and I could not say

McCallister was a Skills at Arms Expert - yet the witness evidence is he trained him to make bombs

Mr. Pieters: So you are saying Me Allister was not involved in training you in the use of
firearms?
Mr. Hamilton: No. not at all
Mr. Pieters: I am going to suggest to you that your evidence before this tribunal that Mr. McAllister trained you in the use of bombs is false, patently false.
Mr. Hamilton: Well I am denying that it is false
Mr. Pieters: I am going to suggest to you, and the evidence could bear that out, that Mr. McAllister was a Skill-at-Arms expert in the Guyana Defense Force at the material time and not a
bomb expert.
Mr. Hamilton: I do not know in what capacity Mr. McAllister functioned in the Guyana
Defense Force.
Mr. Pieters: Well I am telling you ...
Mr. Hamilton: I do not know. I am saying I know Mr. McAllister was an officer at that time,
but as to what capacity functioned in; I do not know and could not say.


Context: Lawrence Edward Rodney evidence on the House of Israel and Joseph Hamilton

Mr. Hanoman: Can you give us an idea about the activities of the House of Israel in 1978, 1979 as well as 1980? Especially in terms of any association that they may have had with the Guyana Police Force?
Mr. Rodney: Well, the House of Israel, as is generally known, was led by one Rabbi Washington. There was a hierarchy comprised perhaps of Deacons and Elders, both male and female.
Commissioner [Mrs. Samuel-Brown, Q.C.]: Deacons and…?
Mr. Rodney: Elders, yes. Thank you. …based in Alberttown, where I think the offices or the structure remains, dilapidated. The House of Israel spread out to different parts of the country. Where I worked, for example, there was a House of Israel contingent, that is to say, the Ministry of Agriculture. I want to believe that National Mobilisation would have also had House of Israel elements. Where I was employed, in Mon Repos, there were about six or seven, it could be more, House of Israel types who resided in Triumph. So, you had a central hierarchy and you had a community element. I want you to follow what I am getting at.
 Mr. Hanoman: Yes.
Mr. Rodney: Mon Repos, Triumph and then there were House of Israel elements along the East Bank of Demerara and on the West Bank of Demerara and possibly the West Coast so the House of Israel was not just a concentrated element. It had different branches. Now, where I worked they would sometimes come in their uniforms, because they felt free – the red and black uniforms.
Mr. Hanoman: Can you describe the uniforms for us?
Mr. Rodney: Okay. A red top, sometimes with the green appellate and black so red, green and black and sometimes they would have the Star of David, whatever insignia, but that was the colour of the uniform.
Mr. Hanoman: Do you know what the PNC colours were at the time?
Mr. Rodney: Well, the PNC colours also, I think were, if I remember correctly, Sophia and places like the annex of the Appeals Court, green, red and black.
Mr. Hanoman: The same colours as found in the House of Israel uniforms?
Mr. Rodney: The same colours, yes.
Mr. Hanoman: Do you know the names of some of the persons that were in the hierarchy of the House of Israel in those times?
Mr. Rodney: Well, it is difficult to know the names, unless you are part of the organisation but what I do know it the term ‘brother’ was being used a lot. You would hear ‘brother’. You would hear ‘shalom’. ‘Shalom’ was being used and perhaps other nomenclature or descriptive terms that they used amongst themselves. I had an experience, for example, at the Public Hospital, where there was a group of House of Israel selling plantain chips and peanuts and they would come to you and just say, ‘well purchase one of these’ and if you did not purchase it, they would get, you know, ‘anti’. So you purchased it just to…
Mr. Hanoman: If you did not what?
Mr. Rodney: They would get ‘anti’. They would get antagonistic.
Mr. Hanoman: I see.
Mr. Rodney: They were a kind of bullying type, if you like. They were a sort of local bullies. Not everyone, but for the large part.
Anyway, to continue about the House of Israel, at my workplace, there were both male and female, young and middle-aged and they would have children with them. It was a kind of sect and this sect recruited people. If you were not a member of the House of Israel, they did not attack you or do you anything but they made it very clear, that they were privileged compared to other persons working in the same worksite.
During that period, we tried to get the workers organised to become members of Unions. Myself and another Comrade, who lived on the East Coast, mobilised the workers to join GAWU because the workers were being victimised and there was no representation and that created …
Mr. Hanoman: The workers were being victimised by whom?
Mr. Rodney: By their bosses, the people who ran the operations and they were being exploited. There were people working in the warehouses. There were ‘weeders’. There were people working in the seed bond. There were people working in different parts of Mon Repos. They would work late hours and not get their overtime pay or they would have to go and ask for it and they would have to go to the Ministry building in Georgetown to get their money so we tried to get the workers organised and that led to a very bitter situation whereby they made it very clear that if you try to organise the workers, you would do it at your own peril.
This is, the House of Israel now. A vehicle would pick them up and take them from the public road or on the line top, the old railway line, to the work site because it was quite a distance to go in, probably, you would know this yourself. If you were not a member of the House of Israel and that vehicle passed and even of there were two seats there, they would not pick you up. However, there were occasions where, if I was travelling in a taxi and they stopped the taxi and the taxi man stopped, they would join the vehicle and come along, just as if it was ordinary and nothing was wrong. It was a bullying type of operation.
There was one particular Deacon there by the name of Hamilton.
Mr. Hanoman: Do you happen to know the first name of Hamilton?
Mr. Rodney: I cannot remember his first name, but he is presently in the system.
Mr. Hanoman: Could the first name be Joe Hamilton?
Mr. Rodney: It will be Joseph, yes. He worked there at Mon Repos. As a matter of fact, he was the counterpart to what we were trying to do for the workers by getting the members becoming members of GAWU.
Mr. Hanoman: What do you mean by counterpart?
Mr. Rodney: Well, he was a kind of Deacon and he had the influence because he lived in…
Mr. Hanoman: Joseph Hamilton was a Deacon in the House of Israel…?
Mr. Rodney: A kind of Deacon, yes.
Mr. Hanoman: ... at that time?
Mr. Rodney: Yes, he was a kind of senior.
Mr. Hanoman: A senior member?
Mr. Rodney: Yes, in other words, he had influence. There was a branch of the House of Israel in Triumph, one of the side streets so he would be there sometimes and at other times he would be at the workplace, but he made it very clear that if you try to organise the workers in the seed bond, the weeders, the people working in the nurseries, you would be doing this at your own peril. I will leave it at that.
Mr. Chairman: Counsel, I am not too sure that I am much clear about the nature of this organisation. Was this a political or religious or a religious quasi-political? Was it a trade union type of organisation? Let us get some specifics? Who so constituted its membership? Does it still exist? Did it have political ties to any Parties? I want some specific things. I am not clear.
Mr. Hanoman: Do you have any information as to those many questions posed by the Chairman?
Mr. Rodney: Yes, well the learned Chairman is quite right. One has to be specifics. What I do know is that there is a body of literature, a wealth of literature perhaps, on the House of Israel. This could be accessed; however, this information does not give you the details about the modus operandi, if you like, of the House of Israel. For example, if there were cases being heard in the Georgetown Magistrates Court, the House of Israel would take contingents of people and occupy almost all the seats. When there was the trial…
Mr. Hanoman: Do you mean ordinary cases, at the Georgetown Magistrates Court?
Mr. Rodney: Not ordinary cases.
Mr. Hanoman: What types of cases?
Mr. Rodney: Cases involving the WPA.
Mr. Hanoman: I see.
Mr. Rodney: If there were Magistrates hearings of any matter that was political in the sense of being opposed to the PNC at that time, the House of Israel presence would be there. Additionally, the House of Israel operated not only as a religious or quasi-religious grouping, but also as a kind of hit squad. They were violent people.
Mr. Hanoman: A kind of ‘what’ squad?
Mr. Rodney: A hit squad.
Mr. Hanoman: What do you mean by “hit squad”?
Mr. Rodney: Well to be specific, you probably recalled the murder of Fr. Bernard Darke.
Mr. Hanoman: Could you tell us a little about that?
Mr. Rodney: Well, Fr. Darke was actually knifed to death in 1979, in Brickdam, not far from here and his assailants were proven House of Israel members.
Mrs. J. Samuel-Brown: Proven how? If I may ask and also since I have engaged, was the House of Israel in existence when the witness returned to Guyana? Can we get some indication of when it came into being? Thank you.
Mr. Chairman: I am going to pause for those of whom, may wish to go to the bathroom, may do so. A brief bathroom break.
Hearing Suspended at 10:36hrs.
Hearing resumed at 10:46hrs.
Commissioner [Mr. Seenauth Jairam, S.C.]: The two, the witness statement and the... they were not…
Mr. Hanoman: Thank you for pointing out that omission. We will attempt to do so now, please.
Mr. Chairman: If those who are coming in from outside could…
[Commissioners were in discussion]
Mr. Hanoman: Mr. Rodney, you earlier spoke of two documents which were signed. I will ask you to look at them now and verify that those were the documents you were speaking about.
Mr. Rodney: Yes, these are the documents.
 [Commissioners were in discussion]
Mr. Chairman: I just want to assure the public that you really have not missed anything. We had a comfort break, of about ten minutes, and we then ran into a technical problem with the microphones, but it think that we have resolved that and are about to resume. Thank you, Counsel.
Mr. Hanoman: Could I be guided as to the stage we were at when we stopped?
Mr. Chairman: I think we were last describing the House of Israel; or rather it was being described as a quasi-religious organisation which operated as a hit squad.
Mr. Hanoman: Thank you.
Mr. Chairman: I think we should take it from there.
Attorney for People’s National Congress (PNC) [Mr. Williams]: Mr. Chairman, he had gone past that. He spoke about Deacons and all of that, but could I ask if he has identified the two statements?
Mr. Rodney: Yes, I have.
Mr. Hanoman: I will get into that, we will move to that now.
Mr. Chairman: I had hoped that you would do that at a more convenient point, rather than break the House of Israel, but I will leave it to you, Counsel.
Mr. Hanoman: At this stage, I wish to ask for the statements identified by this witness, or the documents identified by this witness to be firmly tendered, I believe as LER1, and LER2. LER meaning “Lawrence Edward Rodney”.
Mrs. Samuels-Brown: And my understanding is that the statements you refer to are the ones dated the…
Mr. Hanoman: Yes, thank you.
Mrs. Samuels-Brown: If you could identify it by the 19th April, 2014, and the extract from the testimony given in relation to the inquest by the witness in 5th February, 1988.
Mr. Chairman: 1988. Thank you.
Mrs. Samuels-Brown: And is certified by him to be true and correct.
Mr. Hanoman: I am guided please, Madam Commissioner. I wish to ask for the signed witness statement which is dated the 19th April, 2014. Perhaps to be marked with the letters LER and the number one. The other document that I am seeking to tender also has the same date, but it is a reflection of the Coroner’s Inquest proceedings, and those proceedings were held in February of 1988. We are hoping that you will ascribe the marking LER2 to that particular document. I think the witness has already given evidence that he verifies both of them to be accurate and that he adopts the contents of those documents.
Mr. Chairman: The two identification markings suggested LR1 and LR2?
Mr. Hanoman: LER, if it pleases you.
Mr. Chairman: LER1 and two.
Mr. Hanoman: Thank you.
Mr. Chairman: It has been so tied, and I think we can continue now.
Mrs. Samuels-Brown: Before you proceed, when we took the break, I had asked a question as to trying to date the formation or the existence - the initiation of the time of existence of the House of Israel.
Mr. Chairman: I will now try to elicit that information, thank you very much.
Mrs. Samuels-Brown: Thanks.
Mr. Hanoman: Mr. Rodney, you are required to tell us, if you do know, about the early formations of the House of Israel. Are you aware of when it was first formed, do you know when it was in existence in the late 70s, and do you know whether it was in existence now?
Mr. Rodney: Well, there are three parts to your query. If we deal with the second one, the House of Israel, to the best of my knowledge came into existence when the Rabi Washington arrived in Guyana. After he arrived in Guyana, and that would have been after 1971. Practically, and for the rest of Guyana, House of Israel would have come on stream when they would have begun their radio programmes. Some years ago, looking through the old newspapers, the House of Israel had a radio programme called the “House of Prophecy”. So, it would have been roughly the latter part of 1971, perhaps, onwards, coming into existence with their own radio programme, their own offices or headquarters and their own, if you like, community of people or members.


********
Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.

Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)

Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)

Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.

Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.

Selwyn has appeared in  Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.