Friday, June 13, 2014

Walter Rodney Commission of Inquiry - The Battle for Contemporaneous Documents

"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 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. 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.

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 is:-
(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;
(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;
(v) To examine, review and report on earlier investigations and enquiries done on and into the death of Dr. Walter Rodney.

Thus far several witnesses have presented oral evidence. Very little affirmative evidence has been provided by any of the witnesses and for the most part some of the witnesses that appear to give evidence on a historic matter of 34 years do not have the benefit of files with pertinent material because those files have yet to be presented to the Commission. 

My point, as will be seen below, is that to make any findings of fact in respect to the terms of reference, the witnesses have to point to specific incidents, produce statements, photographs, records and/or documents that would provide an evidentiary foundation sufficient to move the hearing from mere speculation and unsupported accusations of complicity of members of the Joint Services and/or government in the death of Dr. Walter Rodney on June 13, 1980, some 34 years ago.

The following exchange with the Commission at the end of the evidence of Major-General (retd) Norman McLean  on June 05, 2014 demonstrates the extent of the slow production of documents by the Guyana Defence Force and the defensiveness of the Commission when it is called upon to deal with this pertinent and pressing issue. (Sir. Richard L. Cheltenham used the word lecturing numerous times during my submissions on this important point, possibly as a way from distracting me from putting on the record that no substantive documents were presented by the Guyana Defence Force to assist the Commission of Inquiry to make findings of fact that are supported by a proper evidentiary foundation and not a factual vacuum that we are currently operating in).  Afterall full disclosure of relevant and material evidence is a matter of fairness:

Mr. Pieters: Mr. Chairman with the greatest of respect and I am sorry that I speak so much, I guess because I have done so much many of these types of hearings but maybe we should request the file from the military police or intelligence, if they exist for the material time, in respect to this particular matter – The Walter Rodney affair – and what, if anything, the Military Police did to assist the Guyana Police Force, what, if anything, the intelligence unit did, what level of co-ordination there were between these two units. Obviously, the Major General cannot answer those questions 34 years later and he seems to have been out of the loop for whatever reason but if there are records that exist and I wrote to the Commission on this point before, let them be produced.
Mr. Chairman: We may find your suggestion useful but for now do you have any questions?
Mr. Pieters: I am going to tomorrow morning.
Ms. Samuels-Brown: I would just like to point out that the Secretariat has indicated to me that they have been in touch with the Military and I can assure you that the Commissioners, themselves, made preliminary contact with the Military. The request has been made and we have been assure that files are being searched for and certain documents have been presented to us so do not think that we have any dereliction of our duties in that respect. Efforts have been made and are continuing to.
Mr. Chairman: Our relationship is ongoing too, our contact in ongoing.
Mr. Pieters: The thing that I was thinking about in coming here this morning is Terms of Reference number five (v) because this Commission has been asked to look at what other previous inquest,

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other previous investigations, have done in respect to this matter and this is an international commission of sort because you have Lawyers from other countries, Commissioners from other countries. This Commission must have before it and must make its best effort to get each and every single document before it at an appropriate time. You do not want to find yourselves in a position twenty (20) years later where someone else is looking into your inquiry itself and asking questions which you may have to ask with respect to previous investigations. Any document that would have been relevant for the Major General today should have been here. Somebody should put the pressure on the army to get those documents before the Commission and forthwith.
Mr. Chairman: What are you suggesting… that we have not for the most part been doing that?
Mr. Pieters: Mr. Chairman you can issue a summons to the army and have the Chief-of-Staff appear here. That is what I would have done if I was sitting in Commission's Counsel position which I have in over a 1,000 hearings. I would have issued a subpoena as a record holder he would have been here and with those documents.
Mr. Chairman: The only issue is that you do not get voluntary cooperation.
Ms. Rahamat: Mr. Chairman…
Mr. Pieters: This is a tribunal hearing into a serious matter.
Mr. Chairman: Yes, but you do not walk about issuing subpoenas. You let people cooperate voluntarily with you.
Mr. Pieters: The documents should have been here; they are not, a subpoena is appropriate, if it was me.
Mr. Chairman: Apart from lecturing the Commission, do you have any questions of the witness?
Mr. Pieters: Mr. Chairman, I will proceed with my questions in the morning.
Mr. Williams: To support my learned Friend…
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Ms. Rahamat: I just wish to state for the record that the Guyana Defense Force has been cooperating with the Secretariat. They have been providing us with documents and we are liaising with one Mr. Patrick West, who is currently serving within the army. It would be inaccurate to say that we have not been receiving cooperation from the Guyana Defence Force. 
Mr. Williams: Mr. Chairman I just wish to state that the Major General is here by virtue of a subpoena. He has been subpoena to come here and I do not know what cooperation there is and no document are forthcoming from the GDF and by now the document should have been subpoenaed because he has already testify. He has been shown documents so I do not think it lies in the mouth of Counsel for the Commission to say that they are cooperating. Cooperating to produce what? Nothing?
Mr. Chairman: I am not sure there is any real dispute that should be pursued here in the terms of which of which it is suggested? No one has suggested to the witness as of yet something that he said that he would need to see documentary support. “Where is the file?” No one has suggested that. All the questions asked of him, for the most part, he answered them out of his own knowledge and with no need for files. So I do not understand what is this big thing is about files.
Mr. Pieters: Mr. Chairman, in the army – I am sure that if you have received a file you would see that – when a major incident happens within the Guyana Defense Force or the Guyana National Service ... do have their own internal inquiries and Commissions of Inquiries and if you were to get the files you would see what Commission of Inquiry was conducted internally by the army in respect to this particular incident because they would have had an inquiry with respect to the Gregory Smith affair, internally.
Mr. Chairman: You have the opportunity to ask him about it. You are lecturing the Commission and the chance is there for you to question.
Mr. Pieters: I am not lecturing you, Sir. I am just requesting documents and putting my thoughts on the record. I could never lecture such distinguished persons like yourself and please do not take it that way.
Mr. Chairman: If for the purposes of your questioning you knew the witness was coming you would have indicated to us you are aware of an inquiry and that you would like him to be walking with file we could have so indicated. In fact, when we adjourn, I do not think we will complete today, we can make that request of him. It can be done quietly, politely and effectively but you seem to know something that we did not know; there was an internal inquiry, you have the opportunity to question him about it, but to the extent that you have mentioned it, we will ask him, Major General most likely please advise Commission Counsel that tomorrow is available to him, yes. It is now half pass two so we are going to take a break shortly, but we will like you to walk as indeed we have been told that there has been a file dealing with an internal inquiry and if it is not too late for you to get hold of this, I do not know where it may be filed I will be glad if you could walk with it. Well you are no longer there, but it may very well be that you cannot, but if you cannot we will make efforts to get of the Army.
Mr Pieters: Mr Chairman why do you not direct the Army to bring it here tomorrow. Ask the record holder to bring the file just like you would the hospital or anywhere else. He is no longer with the Army and would not have possession of Government property. That is the Government of Guyana‟s property. Direct the Army to do it that what your powers are as Commissioners.
Mr. Chairman: I do not know why you are so energetically lecturing us. I take on board the suggestion, however, that we can make the request of the custodian of the files I do not know whether we will get them here in time, but we can if necessary.
Mr Pieters: 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. I am certainly prepared to excuse myself from the Commission if that cannot happen because I am not prepared to be part of a tribunal where 20 years later my name is on the record and it is questioned as to why we did not take the due diligence to get those documents. If I was Commission Counsel and advising you, a subpoena would be issued. I was Counsel for the Immigration and Refugee Board of Canada on many cases involving war crimes, crimes against humanity and many other cases, and we made sure we dealt with international agencies through our mission to get as much evidence as possible, so that when decisions are made, there was a full factual foundation. And that is the problem I am finding with this case that the Army has produced nothing. I have no evidence as to what steps the Commission took to get those materials from the Army, a Major General is here, no documents that are properly with the Army are here to put before him including Gregory Smith's file and that is totally unacceptable because if those files were here, it would have shown what steps were taken to deal with the Gregory Smith's desertion. None of which is here, and one of the counsel representing the Rodney's family has already asked his questions without the benefit of seeing those documents.
Mr. Chairman: We are not too late to get hold of files, if indeed they are still available. We will make every effort to do so, but do not give anyone the impression that a large number of files have not been made available to us. Just that we can provide the material that we have been providing in support of the Commission. But if you think, in this particular case, there are files that we should have seen, Counsel is prepared to make every effort to make sure that we get them. The Witness has to come back and perhaps we may defer his coming back until the next session, if you think that is convenient, so to give you the opportunity to get whatever files you think may be relevant and may be available....
Mr. Jairam: Mr Pieters, I do not think you are being entirely fair to Commission Counsel. You practice in a very sophisticated jurisdiction, and I can tell you that we in the Caribbean do not move in the same alacrity that you are accustomed to. No effort has been spared, as far as we are concern, about getting those records but we are hoping that we do not have to use our coercive powers to get them, and of course, we have it within our discretion to defer any witness, if an issue arises. We are very grateful for your suggestion, but I think, if I am to, your tone seems to be very critical, but it is an on-going exercise and remember we have been trying to meet given the some 34 years, almost. I think today is the 5th in a few days will be 34 years since this incident has occurred. So some of these records by these various agencies, I suspect are in the archives and it will take some doing in retrieving them. It is not an incident that occurred last year or five years ago. So efforts are being made. We were encouraged in our stakeholders meeting, but the clear indications we have received from the Army, the Police and all the others including your client, the Guyana Trades Union Congress, about the cooperation so we would like to, you know, assure you that we are making every effort and we are alive, we are alive individually and collectively, of our very onerous responsibilities and we do not want posterity to be unkind to us. We are very grateful, but I wish you were not as severe to the Commission Counsel as you appear to be. I am sure I hope with my comment you are assure.
Mr. Pilgrim: Mr. Chairman, I just wanted to indicate that while I agree with much of what Commissioner Jairam is stating. I also agree with much of what my learned Friend who practices way in the North in the first world is saying. I do not think that we should, in any way, try to move away from standards that we have set in the Caribbean with is that generally speaking, we do not like to cross-examine when we have seen papers for the first time when the witness arrives and generally speaking, throughout the proceeding so far, in my involvement, we have seen people‟s statement days maybe a day or two before or on the day and it is not a standard to which we are accustomed to in this region. If it is that we are unable to provide statements the day before, it may be that these proceedings should be adjourned until such time as those statements are available. Rather than every time we arrive here, we receive a statement the same day or the day before and then we proceed…
Mr. Chairman: I do not know how much experience you have in Commissions of Inquiry, but this is my eighth and I can tell you that in each one, including the most recent one in Trinidad that went for three years the Coup Commission of Inquiry, some statements we had in advance of sittings, some were produced in the midst of sittings because the Commission is a dynamic process. Something is mentioned by a witness that caused the investigators to pursue that line that was indicated and in two or three days, an additional statement is provided. You get it the morning, but you are focusing so if falls into context and you question the Witness on it a day later. Nothing unusual in the Commission of Inquiry; it is hectic work.
Mr. Pilgrim: We understand the dynamic situation. But there is an availability of a lot of this material, in our view; I agree with Mr. Pieters on this, some of this material should have been available already.  June 10, 2014

Guyana Times Subpoenaing witnesses last resort – Glen Hanoman  June 10, 2014

Shaun Michael Samaroo, Special Report on WARCOI, Guyana Chronicle, June 07, 2014

StabroekNews Walter Rodney's COI, June 5, 2014 Part 4 (video file)

Denis Scott Chabrol, Norman Mc Lean paid scant attention to GDF Sergeant implicated in Walter Rodney's death, Demerara Waves, 05 June 2014

Denis Scott Chabrol, GTUC lawyer at Rodney Inquiry warns of possible prosecution, Demerara Waves, May 30, 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.

1 comment:

GB&GWU said...

Keep up the militancy, Mr. Pieters. The GTUC, who you represent, and of which our union is an affiliate, appreciates your work.