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.

Wood v. Schaeffer: Watchdogs Special Investigations Unit and Ombudsman Ontario Vindicated in the Fight for Accountability of Police in Death Investigations

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 December 19, 2013

December 19, 2013 marks a significant day in the era of police accountability in the area of note - taking and responsibility of police officers to cooperate with the Special Investigations Unit (SIU) in investigations into serious injuries and death.

In Wood v. Schaeffer 2013 SCC 71 Police Officers facing SIU Ontario probes can no longer have lawyers help them write their notes.

Historical Overview on the Civilian Oversight Body

(1)   The Creation of the Special Investigations Unit

[35]                          Before the SIU was formed, incidents of serious injuries or deaths involving police officers were investigated internally by the police (A. Marin, Oversight Unseen:  Investigation into the Special Investigations Unit’s operational effectiveness and credibility (2008), at para. 23).  This changed in 1990 with the enactment of the Act, which created the SIU. 

[36]                          The creation of the SIU followed on the heels of a report released in 1989 by the Task Force on Race Relations and Policing (Report of the Race Relations and Policing Task Force (1989)).  The Task Force was commissioned by the provincial government after two black Ontarians were fatally shot by the police in 1988.  Its report contained a host of recommendations, one of which called for the creation of an “investigative team” comprised partially of civilians “to investigate police shootings” in the province (p. 150).  The Task Force recommended civilian participation in investigations of the police because, in its view, the practice of “police investigating the police” could not “satisfy the public demand for impartiality” and fostered “a serious deterioration in the public confidence” (p. 147).

[37]                          The Solicitor General, during legislative debate on the Act, confirmed that the creation of the SIU was a direct response to the recommendation of the Task Force.  He stated that the government had listened to the concerns raised by the Task Force and that the Act “addresses the concern, heard by the general public, of police investigating police” (Legislative Assembly of Ontario, Official Report of Debates (Hansard), 2nd Sess., 34th Parl., May 17, 1990, at p. 1318).

The importance of Police Officers notes

Paras. 62 - 68 deals with the duty to make notes in a very authoritative sense:

(a)   The Duty to Make Notes Generally

[62]                          Section 9(1) and (3) of the regulation require witness and subject officers to “complete in full the notes on the incident in accordance with [their] duty”.  The regulation does not define the duty to make notes.  Nor does the Act, which provides a non-exhaustive list of the “duties of a police officer” in s. 42, including, for example, preserving the peace, laying charges and participating in prosecutions, and performing the lawful duties that the chief of police assigns.

[63]                          Although it is common ground among the parties that the duties of a police officer include a duty to make notes on the events that transpire during the officer’s tour of duty, I recognize that neither side points to a definitive statement of this Court holding as much.^[3] 

[64]                          However, reports by experienced jurists have concluded that such a duty exists.  For example, in their 1993 report to the Attorney General of Ontario on charge screening, disclosure, and resolution discussions, a committee made up of experienced counsel and police officers and led by the Honourable G. A. Martin, observed that:

[T]he duty to make careful notes pertaining to an investigation is an important part of the investigator’s broader duty to ensure that those who commit crimes are held accountable for them.

. . .

[I]nadequate note-taking, while it can hamper the conduct of the defence, also risks hampering an investigation and/or a prosecution.  In short, inadequate note-taking does a disservice to both an accused and the community, [which] is entitled to expect that innocent people will be acquitted and guilty people properly convicted.  [Emphasis added.]

(Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) (“Martin Committee”), at pp. 151 and 153)

[65]                          In another instance, the Honourable R. E. Salhany considered the significance of police notes in the course of a public inquiry into a death caused by an off-duty officer.  He explained the importance of notes in this way:

[Note-making] is not a burdensome task that police officers must reluctantly undertake because they were taught to do so at their police college. It is an integral part of a successful investigation and prosecution of an accused. It is as important as obtaining an incriminating statement, discovering incriminating exhibits or locating helpful witnesses. The preparation of accurate, detailed and comprehensive notes as soon as possible after an event has been investigated is the duty and responsibility of a competent investigator.  [Emphasis added.]

(Report of the Taman Inquiry (2008), at p. 133)

[66]                          These conclusions, in my view, stand on firm ground.  The importance of police notes to the criminal justice system is obvious.  As Mr. Martin observed of properly-made notes:

The notes of an investigator are often the most immediate source of the evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate.  [p. 152]

[67]                          Against that background, I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation.  Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer’s duty to assist in the laying of charges and in prosecutions — a duty that is explicitly recognized in s. 42(1)(e) of the Act.

[68]                          None of this, of course, comes as news to police officers.  In this case, for example, OPP policy confirms the duty to make notes by requiring constables to record “concise, comprehensive particulars of each occurrence” during their tour of duty and to “make all original investigative notes . . . during an investigation or as soon as thereafter practicable” (OPP Order 2.50, Member Note Taking, SIU Record, at pp. 48-52).  More generally, police manuals have long emphasized the importance of accurate, detailed, and comprehensive notes; see, e.g., R. E. Salhany, The Police Manual of Arrest, Seizure & Interrogation (7th ed. 1997), at pp. 270-78. 

Even prior to the Supreme Court of Canada decision, caselaw exist to show that the importance of contemporaneous notes is no small matter. As observed in R. v. Tang, 2011 ONCJ 525 citing R. v. Odgers, [2009], O.J. No. 2592

[52] In my view, the lack of proper note-taking by Constable Monahar makes his

testimony before me of no value or reliability.

[53] I agree with my colleague Justice Robert N. Fournier, in his view of the importance of note-taking, at paragraph 16 of his recent judgement in R. v. Odgers [2009] O.J. No. 2592:

[16] Generally speaking in the matter of police officers' notes - the law has indeed evolved over time. No longer are the notes of an officer a simple aide-mémoire generated for the sole purpose of that officer to assist in refreshing his/her memory. While the notebook continues to be an important investigative tool, it has also evolved into a fairly significant evidentiary document of sorts. Their use as a source of reference in the course of a trial can play a significant role in a court's assessment of the evidence. The quality of such record keeping can indeed impart far reaching consequences on occasion. It cannot be said that the adequacy of an officer's notes is of little consequence. Accordingly the courts have recognized that there is an inherent duty placed on officers, to prepare complete and accurate notes. In the normal course of disclosure, officers' notes invariably find their way into the hands of defence counsel, who will of course rely on them. This has become an even more significant reality, since the advent of Stinchcombe. It can be of particular concern in instances, when events or observations of obvious relevance and importance, are omitted or not adequately documented in the notebooks of officers. In such instances, the courts have demonstrated a heightened awareness of the evidentiary dangers, such deficient notes present to a trier of fact. When serious inadequacies are demonstrated, the credibility of police officers can in fact be discounted. It goes without saying that the absence of notes on an important factor is relevant to an officer's credibility.(9) As a result the courts have on occasion, been reluctant to attribute much weight to evidence adduced viva voce by an officer, in the absence of corroborating written references in that officer's notebook. I am aware of a large body of case law(10) on the subject. Ultimately however, this is often a matter of common sense and as usual each case, must be determined on its merits.

[54] In this proceeding, I have concluded that Constable Monahar’s testimony was evasive and contrived. It is not supported by his own notes, and his testimony lacks both credibility and reliability on this key question of his use of force in arresting Mr. Tang.

[55] I therefore, in this proceeding have concluded that Mr. Tang’s evidence, and that of the other witnesses called by the defence, is more reliable than that of the arresting officer, Constable Monahar, as to the sequence of events during the “take down” and arrest.

Justice Nordheimer observed in R. v. Schertzer, (2007) 161 C.R.R. (2d) 367 at paras. 14, 16, 21 (Ont. S.C.J.); rev’d on other grounds (2009) 248 C.C.C. (3d) 270 (C.A.), that:

…the obligation to make notes arises from the individual's employment as a police officer. At the risk of stating the obvious, no one is compelled to become a police officer. Persons make a free decision to become police officers and they do so with full knowledge of what that decision entails. Persons deciding to become police officers surely know that their actions as police officers will be subject to scrutiny in a variety of ways including by their superiors, by their fellow officers, by the public, by the media and by the courts. The training that individuals go through in order to become police officers fully informs those persons regarding their duties and obligations as such.

…

The notes … assist in the proper prosecution of criminal and other offences because they are intended to provide a reliable and timely record of the events underlying those offences.

…

It remains the fact that the principal purpose of requiring notes to be made is not for the purpose of investigating the actions of police officers. It is an incidental effect of the requirement to make notes that possible misconduct by an officer may be revealed.

All levels of Court have now spoken on this issue including the highest court in the land.

Why exclude lawyers from the note-taking process


In overturning the Court of Appeal decision pursuant to a Cross-Appeal from the Director of the SIU on the point of whether or not police officers can consult legal counsel the Court made it clear that in the performance of their professional responsibilites as peace officers, allowing counsel to provide even basic legal advise whould be inconsistent with the duties as set out in section 42 of the Police Services Act.

[67]                          Against that background, I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation.  Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer’s duty to assist in the laying of charges and in prosecutions — a duty that is explicitly recognized in s. 42(1)(e) of the Act.

[82]                          The Court of Appeal concluded that, while s. 7(1) of the regulation does not entitle officers to the assistance of counsel in the preparation of their notes, it does entitle them to “basic legal advice” about the nature of their rights and obligations under the Act and the regulation before they complete their notes.  That basic advice could include informing officers that they are required to complete their notes prior to the end of their tour of duty unless excused by the police chief, and that their notes will be submitted to the Chief of Police (para. 81).

[83]                          With respect, I disagree with this aspect of the Court of Appeal’s reasons.  In my view, the legislative history shows that s. 7(1) was not meant to create an entitlement to counsel before an officer has completed his or her notes.  Without in any way impugning the integrity of counsel or police officers, even the perfunctory consultation contemplated by the Court of Appeal is liable to cause an “appearances problem” similar to the one I have already identified.  Because the initial consultation is privileged, the public will have no way of knowing what was discussed.  As a result, the same threat to public confidence exists, even if on a somewhat diminished scale.

[84]                          A loss of public trust would seem a high price to pay for an initial consultation that, in my view, achieves no tangible benefit.  Counsel cannot discuss the facts surrounding the incident in any meaningful sense, if at all; nor can there be any discussion about the legal issues that flow from the facts.  Under the Court of Appeal’s model, counsel is limited to providing officers with basic information about their rights and obligations under the legislative scheme.  This information can easily be conveyed in ways that do not generate any appearance problem.  It can and should be included as part of every officer’s training.  If there is some need to refresh officers as to their responsibilities after an event triggering an SIU investigation, this refresher can be provided by a ranking officer or a generic card kept in an officer’s notebook.

[85]                          In the end, the basic legal advice contemplated by the Court of Appeal is essentially meaningless — and anything that might be meaningful sends counsel into a minefield.  In this regard, I agree with the Officers that the court’s proposal is unhelpful:

The officer is unable to ascertain what questions can properly be addressed to counsel and counsel is required to navigate through an obstacle course and provide little, if any, practical assistance to his client.  The permissible advice is, in effect, no advice at all.  The Court of Appeal for Ontario has relegated the role of counsel to a recitation of the most basic legislative requirements rather than providing meaningful legal assistance.  [Emphasis added; A.F., at para. 72.]

[86]                          In reaching the conclusion that officers are not permitted to consult with counsel before they have completed their notes, I acknowledge the fact that officers who have been involved in a traumatic incident may well feel the need to speak to someone before they complete their notes.  While the regulation prevents such officers from consulting with counsel, it does not prevent them from speaking to doctors, mental health professionals, or uninvolved senior police officers before they write their notes.  Moreover, the regulation empowers the chief of police to allow such officers more time to complete their notes (see s. 9(5)).

[87]                          I should also be clear about the scope of my conclusion.  Once officers have completed their notes and filed them with the chief of police, they are free to consult with counsel.  This would include consultation both before and after the interview with the SIU.  Consulting with counsel at that stage is consistent with the plain wording of s. 7(1) of the regulation and does not derogate from an officer’s duty or from the purpose of the legislative scheme.

The Significance of this decision

Its a super big win for civilian oversight of policing and lawful law enforcement.

********

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). A significant portion of Selwyn's work involves representation of persons in human rights, civil and criminal litigation matters in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario.

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 appeared at all levels of courts, including the 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 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. 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 most recently litigated the racial profiling case of:
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 12134, 2013 HRTO 1472
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 11941
M. (R.) v. Toronto Police Services Board, 2013 HRTO 1102
M. (R.) v. Toronto Police Services Board, 2013 HRTO 73
M. (R.) v. Toronto Police Services Board, 2012 CarswellOnt 11158
M. (R.) v. Toronto Police Services Board, [2011] O.H.R.T.D. No. 618, 2011 HRTO 410
M. (R.) v. Toronto Police Services Board, 2011 ONCJ 143, 2011 CarswellOnt 1980, 2011 ONCJ 143, 274 C.C.C. (3d) 272 (Ont. CJ.)
M. (R.) v. Toronto Police Services Board, 2010 CarswellOnt 9121, 2010 HRTO 2349
M. (R.)v. Toronto Police Services Board was recently settled to the satisfaction of all parties and the terms of settlement reached remain confidential.

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.