Tuesday, October 18, 2011


Madame Justice Karakatsanis of the Court of Appeal for Ontario is an excellent choice for appointment to the nation's highest court. I do not know her personally but I had the pleasure of arguing two cases before her - one a medical malpractice on a question of law motion brought by the defendant doctor and the other an application on a guns and gangs prosecution styled "Operation Flicker". On each occasion I was impressed by her ability to zero-in on the crux of the legal problem, her ability to ensure that counsel understood the point and to insert common-sense and compassion in her adjudication process.

In the medical malpractice matter I acted for the plaintiff who brought an action against a doctor and a hospital for breach of confidence and negligence based on the doctor's improper disclosure of the nature and type of medical procedures which the plaintiff underwent. Counsel for the defendant doctor brought a motion on the premise that since the doctor was not the plaintiff's doctor he owed her no duty of care and hence the plaintiff had no claim. Justice Karakatsanis pointed out that the action is based both in negligence and breach of confidence. She politely asked counsel for the doctor, "Are you suggesting to me that if I had surgery at TEGH and your client - a surgeon - found out what I had that he could tell the whole word because I do not have a doctor-patient relationship with him ?" Counsel for the doctor replied yes. Justice Karakatsanis proceeded to dismiss the doctor's motion with costs. No appeal was taken by the doctor.

In the guns and gangs case I was acting for an alleged gang member whom the immigration authorities and the Crown sought to deport to his homeland followng the proceedings. I brought an application before Justice Karakatsanis seeking a stay of the proceedings based on the Crown's improper disclosure of sensitive and confidential information regarding the client which had the potential to put his life at risk should he be deported to his homeland. Once again, Justice Karakatsanis recognized the seriousness of the issue, listened attentively to evidence I led in support of the application and fashioned a unique and pragmatic remedy. Althought she dismissed my application for a stay of proceedings she wrote a strong and comprehensive judgement in which she specifically recommended that the immigration authorities refrain from deporting my client.

Sunday, August 28, 2011

Jack Layton

Canadians lost a great human being in Jack Layton. Though I did not know him personally - I felt his warmth, sincerity and conviction for social justice for working people. I remember the pride and sense of hope that his recent performance in the federal election caused me to feel. Like so many of us I had become cynical and withdrawn from the process which always seemed to disappoint us. When Jack Layton became the leader of the Official Opposition it brought home to me the old message that freedom is never given to the oppressed by the oppressor but it must be won by the oppressed. Mr. Layton demonstrated to me with his recent election performance that change and a society founded on social justice and equality for all is within our grasp.

Thursday, August 25, 2011

Incivility as Professional Misconduct

No one - including myself - would suggest that civility is not a desirable goal or objective in the delivery of legal services. Civility is a desirable goal or objective in all human endeavour even war. The concern with respect to prosecuting lawyers for incivility is not founded on the premise that civility has no place in the work of lawyers. Rather it is founded on a deep and well-founed fear that unless the rules and standards of civility are carefully tailored so as not to impair fundamental rights such as confidentiality and the lawyer's duty to vigorously defend the accused they are not in the client's best interest to the extent that they interfere with the discharge of the lawyer's duty to the client. In this short piece I wish to delineate some of the issues and problems involved in enforcing civility as professional misconduct among lawyers.

What is the offence ?

The range of behaviour that can be characterized as incivil in the conduct of litigation is not only broad but also very subjective. Stating to another lawyer in a letter that he is speaking nonesense in an effort to tell him that his anticipated motion is untenable has been found to be incivil behaviour. This is so even if the recipient of the letter takes no issue with its contents. Informing another lawyer in an e mail that one's client is not a "cash-cow" and consequently one must be pragmatic in the handlying of the litigation has also been found to be incivil behaviour.(see LSUC v. Guiste) Again, the finding of misconduct was made even though the complaining lawyer did not include it in his initial complaint which the Society closed with a caution. The e mail was included after the complaining lawyer was dissatisfied with the penalty imposed and appealed the initial dispositon.

What is the fault requirement?

Not only is the range of behaviour which can constitute this offence very broad but the recent holding in LSUC v. Guiste and the current prosecution of Mr. Joseph Groia suggests that it is a strict liability offence. A strict liability offence as distinct from a fault based or mens rea offence is one which is complete by the very act itself. The defendant's state of mind is not a factor in the question of whether or not the offence was committed. It is like a parking violation.

Confidentiality agreements
and occasions of privillege:

In LSUC v. Guiste two of the charges stemmed from conduct which took place in the context of a mandatory mediation session under the Rules of Civil Procedure where all of the participants signed a confidentiality agreement. That confidentiality agreement stated the following:

"The entire procedure will be confidential. All conduct,
statements, promises, offers, views and opinions, whether
oral or written, made in the course of the mediation
by any of the parties, their agents, employees,
representatives or other invitees to the mediation by the
mediator, who is the parties' joint agent for purposes of
these compromise negotiations, are confidential and shall,
in addition and where appropriate, be deemed to be attorney
client privilleged. Such conduct, statements, promises,
offers, views and opinions shall not be discoverable or
admissible for any purposes, including impeachment, in any
litigation or other proceedings involving the parties and
shall not be disclosed to anyone not an agent, employee,
expert, witness, or representative of any of the parties.
However, evidence otherwise discoverable or admissible in a
a later proceeding is not excluded from discovery or
admission as a result of its use in the mediation. If not
entirely enforceable, the parties intend that the court
enforce this provision to the extent enforceable by such

Following the opening by employer counsel I admittedly lost my composure and stated words to the following:

- "you can take that offer and shove it up your ass";
- "you don't have to grab a tit for it to be sexual
harassment"; and
- I stated "fuck" a few times.

At my hearing I testified that I made those statements because counsel for the employer had in fact written me in advance of the mediation with a range of settlement which exceeded his offer at mediation. In addition, counsel for the employer suggested in his opening statement at the mediation that in fact no sexual harassment took place and there was never any physical contact.

Defence rejected:

The defence to these specific charges was three-prong. Firstly, the communication occurred on a recognized occasion of privillege under the common law. Secondly, the confidentiality agreement expressly covered the communication as it focussed on the offer and what constituted sexual harassment. Thirdly, that I had an honest belief that my speech was protected by the occasion and the agreement. I sought to present the panel with expert testimony on the standard of conduct at such mediation sessions and the panel refused this evidence on the liability phase of the hearing. The proffered expert testimony suggested that this sort of speech was not out of the norm in the context of sexual harassment cases.

Mediation related

Once again, I am not proud of the language I employed at the mediation session. I wish this point to be crystal clear. I have appologized to the recipients and I know it shall never happen again. However, my objective here is merely to contribute to a discourse which I see as one of public importance - namely - the regulation of the speech of lawyers and their duty to defend. The real question is this. Would the result from a prosecutorial point of view been different had I stated the following:

- "your underhanded attempt to cause my client to lose confidence in me is noted and not appreciated - sir"

- "sir - your suggestion that only a sexual assault will
constitute sexual harassment in the workplace illustrates
and confirms your ignorance of the subject matter. We shall try this case in a court of law. Mediation is not the forum".

I submit that the above-noted language would result in the same charges and likely the same result - assuming the current strict liability fault requrement for the offence. Here the use of the words underhanded and ignorant could be characterized as a "personal attack" on the other lawyer's professional integrity and competence. In the face of a strict liability offence the offence results from the mere statements without regard to truth or context. Therein lies the problem. The lawyer's ability to speak frankly and forcefully on what he or she perceives to be underhanded conduct by his or her opponent is capable of being censored by such an offence.

Judge initiated complaints:

In June, 2010 His Honour Justice Bassel of the Ontario Court of Justice summoned me to appear before him at Old City Hall to explain my non-attendance on four judicial pre-trials(jpt) which he mistakenly understood me to have missed. I attended and attempted to explain to him that his facts were in error and that I failed to attend two jpts - one in which I called and informed the authorities and the other I acknowledged before him that I failed to attend on account of inadvertence. For some reason His Honour Justice Bassel did not accept or seem to understand my explanation. He forcefully suggested that my non-attendances inconvenienced counsel for a co-accused and that I owed him an appology. I was charged with the following offences stemming from this incident:

1. failing to treat the Court with courtesy and respect
by my submissions;

2. failing to treat the court with courtesy and respect by
my failure to stand when addressing the court;and

3. failing to treat the court with courtesy and respect by
failing to attend at two judicial pre-trials.

The second charge above was withdrawn by the prosecutor at the hearing. The panel dismissed the third charge finding that I did indeed notify the court of one of the attendances and the other was on account of inadvertence since a staff member of my office was ill and failed to note the date in my book. The first charge was based on submissions recorded in a transcript of my attendance before His Honour Judge Bassel. One of them was the following:

"If you been in private, private practice, Your Honour,
you would know that you employ a clerk, I employ a
student-at-law. The student-at-law appeared for a number of
initial dates."

Context is critical when seeking to punish a lawyer for their words or conduct in the context of advocacy. The above passage standing alone could be interpreted by some to be a showing of disrespect. However, a look at the entire utterance may be interpreped very differently - although the discipline panel found differently:

"If you've been in practice, private practice, Your Honour, you would know that you employ a clerk. I employ a student-at-law. The student-at-law appeared on a number of the initial dates and this date had been brought to my office's attention. She wrote a letter, as is in accordance with her obligation. The letter is signed by her. We can enter this, a copy of this, as an exhibt. She even called the client and advised him; but as I indicated, between then, in aand around the 22nd, she was in hospital, she was away from work, she had pheumonia. She came back I believe either the 30th or the 1st of July of last week there and she not inscribe that entrey in my book. It's not uncommon for counsel to overlook or not be aware. I'm not saying that it's not a serious matter. It's very serious. However, that is my explanation. I inadvertantly...failed to be aware that I had this date, and the reason for this is my clerk did not bring it to my attention. She was away, the student was also away and, therefore, I was not aware."

Later on the transcript reveals that I stated to the judge words to the effect that I don't know who this lawyer is and that I don't know if he is some sort of Johnney Cochrane come lately or something that entitles him to greater respect than other lawyers. I had already acknowledged my wrong-doing and appologized. Justice Bassel stated that it was his view that I was sarcastic and disrespectful to Mr. Robbins and the court. Mr. Robbins had no issue with me and never in fact complained about me. He was not even present when I made the utterance. The same trancript contains the following statement on the record:

"If I could, I just wanted to address one more point, Your Honour. I just wanted to say, Your Honour, that with respect to Mr. Robbins, you indicated that it was disrespectfull when I indicated my comment about whether was some sort of Johnny Cochrane come lately or something. I didn't mean that as a disrespect to him, but it just occurred to me that somehow I got the impression that because it was Mr. Robbins, it seemed like it was a greater wrong and I've acknowledged my wrongdoing and indicated that I accept that, yes, I was wrong, and so my statement was not intended to be disrespectful of you, disrespectful of the Court, but it just seemed to me that it conveyed the impression that somehow some lawyers are somehow deserving of greater respect than others and that's why I responded in that way."

Commentary and Analysis:

There is no doubt that civility amongst lawyers in the delivery of legal services to the public is a desirable goal. The problem is that in seeking to prosecute lawyers for incivility we run the risk of tampering with established legal principles such as the confidentiality of settlement discussions and the duty to defend. Indeed, the very issue of confidentiality arose at the penalty phase hearing on June 24th, 2011 when counsel for Novopharm asked the prosecutor to ask the panel to expunge parts of my testimony where the quantum of the ultimate settlement was discussed. The purpose of that specific evidence was to explain my acts and omissions and provide context to them. My consent was requested for such an order by the panel.

Any law or regulation which has as its objective to regulate the speech or conduct of a lawyer in the execution of their duty must be carefully tailored so as to interfere as little as possible with the principle of confidentiality and the duty to defend. Such a law or regulation can not be a strict liability offence because such an offence could not reasonably be said to impair the lawyer's duty to defend as little as possible. Language and a judge's pronoucement in a transcript is open to interpretation. The words of the Supreme Court of Canada in Young v. Young is highly relevant to the civility issue and I quote it below:

"But the fault that might give rise to a costs
award against Mr. How does not characterize
these proceedings, despite their great length
and acrimonious progress. Moreover, courts must
be extreamly cautious in awarding costs personally
against a lawyer, given the duties upon a lawyer to
guard confidentiality of instructions and to bring
forward with courage even unpopular causes. A lawyer
should not be placed in a situation where his or her
fear of an adverse order of costs may conflict with
these fundamental duties of his or her calling."

NOTE: This piece is written for the sole purpose of shedding light on an issue of obvious public importance - namely - the regulation of a lawyer's speech and conduct in the execution of their duty as advocates for clients. The Rule of Law and democracy works best when we allow for a free exchange of ideas.

Sunday, August 7, 2011



I am currently involved in a case with the Toronto East General Hospital as a result of their dismissal of a 24 year employee who was the Manager of their Birthing Centre based on what they call a 360 Degree Assessment conducted in May, 2004. The hospital maintains that she received a negative assessment from her supervisor and peers and proceeded to dismiss her 'without cause" but insisted that she sign a release acknowledging that her rights under the Ontario Human Rights Code were not violated. The hospital maintains that all of the inputs from these evaluators have been destroyed in accordance with their practice. My client disputes that her performance was sub-standard and has suffered damages to her health and her reputation in her profession.


1. Have you any knowledge or familiarity with the 360 Degree Assessment
process at Toronto East General Hospital ?

2. Have you been dismissed from Toronto East General Hospital as a result
of a 360 Degree Assessment ? or know anyone who was ?

3. Did you work at Toronto East General Hospital's Birthing Centre
between May 31st, 2004 and July 5th, 2005 ?


I require this information in order for me to demonstrate that my client was wronged when dismissed by the Toronto East General Hospital because the 360 Degree Assessment was not used in the manner in which it was designed to be used by the consultants who introduced it to them - KEMERER GROUP INC. FORMERLY RICHARD KEMERER @ ASSOICIATES and was indeed an invalid indicator with respect to her job performance.


Anyone with information is asked to contact: Ernest J. Guiste - (416)364-8908 - E mail: ejguiste@yahoo.com or ejguiste.rightslawyer@gmail.com.

Tuesday, August 2, 2011

Toronto Star Demonstrated Small Mindedness in Civility Prosecution Coverage

On June 24th, 2011 a disciplinary panel of the Law Society of Upper Canada reprimanded me for conduct which they found constituted unprofessional conduct on my part. The panel ordered the reprimand at a little before 4 p.m. Peter Small a journalist with the Toronto Star was in attendance and his story was published in the Toronto Star by dinner time that evening. The lead sentence of the internet version of his story was "The Law Society of Upper Canada has reprimanded a lawyer for rude, profane and aggressive behaviour".

I have been consistent in my view that the manner in which most of the conventional media covers legal issues is wanting in that the reporting is merely conclusionary and often appears to be advocacy on behalf of one interest or another. The Toronto Star's coverage is no exception and provides a splendid illustration of my point. My prosecution was divided into two parts - liability and penalty. The liability portion took place on December 13th and 14th, 2010. I testified extensively and my testimony was subjected to cross-examination. The penalty hearing took place on June 24th, 2011. The Toronto Star only attended the penalty hearing. As one who reads the Toronto Star daily I expected more of them in their decision to cover this story.

In this post I will highlight the four year history of my prosecution from start to finish.

Case History:

- Parties attended a mandatory mediation session on or about June 21st, 2007 at which time the utterances were made;
- All participants to the mediation including the Mediator signed a comprehensive confidentiality agreement;
- June 27th, 2007 or so the Mediator releases his report which encourages
further mediation and is silent on any professional misconduct;
- August 1st 2007 Mr. J. Goodman and his client Novopharm filed a complaint with the LSUC. This complaint alleged the following:

1. I told him to "Shove it(his offer)up your ass";
2. I stated "You don't have to grab a tit for it to be sexual
3. That I negotiated directly with their client, Novopharm;and
4. An allegation that I was rude to a staff member at their office.

****- June 2008 LSUC closes complaint with a caution after investigation. ****

- July, 2008 Mr. Jeffrey Goodman appeals the caution seeking a greater penalty.
- July, 2009 the scope of the cocmplaint is expanded by the LSUC to include various e mails and letters between counsel both prior to and after the original complaint;
- Scope of the complaint is expanded further when Justice Basel writes directly to the Treasurer of the LSUC alleging that I missed 3 or 4 judicial pre-trials. This complaint is later amended to assert that I failed to treat the court with courtesy and respect;

****- September 24th, 2009 LSUC issues press release announcing Civility Protocol;****

- December 13, 14th, 2010 I testified that I understood that the confidentiality agreement which I signed prior to the mediaiton session made my utterances about Novopharm's offer and their position that there was in fact no sexual harassment of my client immune from prosecution;

- March 8th, 2011 the Panel ruled that the confidentiality agreement did not protect my speech from prosecution and proceeded to find me guilty on three and a half of six counts;

- July 5th, 2011 Panel releases order dated June 24th, 2011 providing for the non-disclosure of evidence from the hearing which may disclose Novopharm's confidentiality interest in the settlement.

NOTE: This piece is written for the sole purpose of drawing attention to issue of public importance, namely, the failure of the Toronto Star to properly cover a story with significant public interest.

Thursday, June 9, 2011

Brigette DePape: No struggle - no progress - no hope - no change !

In my last post I raised the possibility that Brigitte DePape's "Stop Harper" protest during the recent Throne Speech may have been orchestrated by the government. Her media statements post event along with her recent piece published in today's Toronto Star entitled "Message in a stop sign" categorically refutes this possibility and signals a much needed affirmation that - no struggle results in no progress - no hope results in no change. Ms. DePape embodies the spirt of hope and change that Canada and the world needs at this time.

Despite her tender age Ms. DePape seems to have a keen understanding and appreciation of the dynamic known as social and political change. She understands that social and political change comes from the people and it is often a small segment of the people who are the necessary catalyst for change. One simply has to look at the very recent civil rights struggle of African-Americans to understand this. Social and political change in that specific context only came about when individuals like Rosa Parks got tired of feeling powerless and hopeless.

Despite her tender age Ms. DePape understands the direct relatioship between hope, the power of the people and change. The power of the people is infinite and change is always possible so long as the people have hope. Ms. DePape's work is - if nothting more - a reminder that change does not just happen. Social and political change comes about by self-less and often spontaneous acts of individuals when hope seems non-existent.

Saturday, June 4, 2011

Stop Harper Protest: Reverse Sting ?

As the pomp and cerimony of the Speech from the Throne Ceremony was unfolding on the Senate floor yesterday a young woman named Brigette Depape held a sign in the form of a stop-sign which read, "Stop Harper !" The message was clear and simple. Viewers all over the country and indeed the world received the message.

The question is was that message part of a spontaneous and legititmate political expression on the part of this young woman or was it "orchestrated" by the government. Why would the government do that you ask ? Why not ? Harper's government was recently voted in with a majority. Harper's government cleverly faulted the demise of their minority government on the opposition. The oppossition according to the Harper government acts contrary to the interests of Canadians. Orchestrating such an act does two things for the Harper government. Firstly, it reaffirms the pre-election message that the opposition want to destroy the country and only Harper can save it. Secondly, it sends the reverse message that the Harper government can not be stopped and at the same time solidifies the Harper base of support.

Time will tell whether Brigitte DePape's "Stop Harper" message was spontaneous and legitimate political expression or a reverse sting operation orechestrated by the Harper government. If it is the former there is hope for Canadians. If it is the latter Canadians must ready themselves for reform.

Note: This piece is written for the sole purpose of drawing attention to an issue of public importance. I do not profess to have any knowledge of the communicator's or the government's motivation with respect to the sign. I am simply outlining two possible scenarios. I leave it to those who earn their living in the media to investigate the communicator's background and enlighten us. Democracy works best in this way.

Sunday, May 29, 2011

Consent to sex: What happened to moral blameworthiness ?

A few years ago I sought leave to appeal from the Supreme Court of Canada in a case which was popularly referred to as "The Clergy Man and the Park". In Webb v. Waterloo Police Services Board and P.C. Gillingham I sought to recover compensation for my client who was unwittingly entangled in a police sting operation carried out by Waterloo Region Police Service in their efforts to "rid a park of homosexual activity" by having P.C. George Gillingham entice men seeking sexual activity in Kitchener's Homer Watson Park to touch him and then charge them with sexual assault.

The evil which I attempted to have the Supreme Court of Canada acknowledge was that the offence of sexual assault was not amendable to a sting-type operation like the one carried out by Waterloo Region Police because the actus reus is dependent on the complainant's subjective state of mind - in the Webb case - a police officer who admittedly concealed his identity as a police officer to Mr. Webb because "he would not have committed the offence if he knew I was a cop." I argued that the potential harm capable of flowing from allowing state actors such a broad power of discretion warranted review and censure from the highest court in the land. An innocent citizen could potentially be charged with sexual assault only because the charging police officer claims a lack of consent notwithstanding the fact that all objective indicia point to consent.

Last week the Supreme Court of Canada increased the class of potential victims of false allegations of sexual assault from gay men at the hands of the police to include common law partners who engage in erotic asphyxiation. The Supreme Court of Canada overturned a husband's acquittal by the Court of Appeal for Ontario finding that the wife could not have consented to any sexual act while she was unconscious even thought the couple had engaged in this conduct before and the wife maintained that she consented to be asphyxiated. This conclusion was arrived at in the face of the following uncontested facts:

- H and W were involved in a long-term relationship and had a child
- H and W had engaged in asphyxiation during sex before;
- W complained to police two months after the act;
- W recanted at some point and stated that she brought the
allegation of sexual assault after H threatened to take custody
of their son;
- W testified that she consented to the asphyxiation.

This appeal made its way to the Supreme Court of Canada because one of the justices of the Court of Appeal for Ontario, Mr. Justice Laforme, dissented finding that as a point of law the woman could not have consented because she was unconscious. It is clear that the majority in the Supreme Court of Canada jumped on an opportunity to both confirm and expand upon the court's ruling in Ewanckuk - the so called "no means no case". While one can see the logic in the broad proposition put forward by the majority in this case that proposition fails to do justice to the specific facts of the case. One could not argue in good conscience that a person who drugs another in order to have sexual relations with that person has obtained valid consent where that party is unconscious during the act. However, clearly that situation is not what was before the Supreme Court of Canada. The parties in this case were involved in a long-term common law relationship in which they had a child together and had previously engaged in the type of sex which was the subject of the allegation. Evidence in the trial court suggested that W sought to recant the sexual allegation by suggesting that she brought it forward as a result of a threat by H to take custody of their son. If anything - consent appears to have been withdrawn two months after it was given as a bargaining chip in the custody battle between the couple.


The results in Webb v. Waterloo Region Police Service and R v. J.A. provide compelling evidence of the danger associated with the legal regulation of a fundamental part of human interaction. In Webb the courts determined that a police officer playing a role to invite a man to touch him so as to "rid a park of homosexual activity" did not consent to the touching of his clothed crotch even though the same officer had committed the same act on another man hours prior and on all objective criteria the officer had clearly invited and consented to the sexual touching. In Webb the courts appear to have decided to close their eyes to the mountain of evidence which called into question the police officer's claim of a lack of consent. In R v. J.A. the approach and result are strikingly similar but with a new twist. Consent it is said can only be given by a conscious mind. This is so even thought the complainant consented to being asphyxiated. Clearly the complainant was well aware that she would lose consciousness and her partner would continue to engage in sexual activity with her during her period of unconsciousness. They had done it before.

One question which arises for this ruling is this. If voluntary intoxication can not be used as a defence to a general intent crime why then should voluntary aspxyiation negate consent to private acts between consenting adults ? Surely, the law is capable of making a distinction between the husband and wife who voluntarily engage in this form of sexual pleasure with a situation where the agreement to become unconscious is lacking. To be clear - that is not to say that there may never be circumstances in which even with an agreement to aspxyiation that one may not consent to a specific act in all of the circumstances. Consent has both a subjective and objective component to it. An over emphasis on the subjective component of the analysis combined with an interpretation of consciousness which has no regard for the agreement of the actors may not be in the public interest and liable to make criminals of those who lack the necessary blame-worthy state of mind generally required for a crime.

Note: This piece is written for the sole purpose of drawing attention to an issue of public importance - namely - the regulation of consensual sex between adults.

Monday, May 23, 2011

Reporting on "Manners Trial" Failed the People

The recent coverage of the "Jordan Manners Trial" confirms my long held position that the media's coverage of legal proceedings is wanting. Media coverage in this case was primarily concerned with informing the public about the outcome of the proceeding as distinct from how the outcome was arrived at and the positions of the lawyers as distinct from what the evidence of the witnesses was. The fact that the Crown did not have a case at all was lost in the coverage.

The media coverage provided us with a lot of speculation and conjecture but very little in terms of substance. At the first trial the Crown's key witness recanted the statement which she had provided to police. The jury was unable to come to a verdict and a mistrial was declared. At the second trial the Crown called the same witness and she confirmed her recantation. This time the two young men - both of whom had been in pre-trial custody for four years now were found not guilty by the jury. There was a popular sentiment in the coverage that the star witness recanted on account of fear. However, the trial judge expressly addressed this in the charge to the jury and told them there was in fact no such evidence. It has since been revealed that the statement taken from the star witness by Toronto Police investigators suffered from serious flaws including the fact that it was not under oath and she was promised anonymity.

Reading between the lines from the evidence reported upon by the media, the recanted evidence was the cornerstone of the Crown's case. According to reports the witness informed the police in her statement that she saw one of the two defendants "dragging the deceased like a rag doll and subsequently the other defendant robbed him of some property." She did not claim to have witnessed the killing. No one did. No weapon was found and there was in fact no physical evidence linking the defendants to the killing. If this was the extent of the evidence against the defendants one must wonder why the Crown and the police brought the case to trial - not once but twice. Indeed it is debatable as to whether or not there was in fact reasonable and probable grounds to charge the defendants. Clearly, it would be a stretch to suggest that there existed a reasonable prospect of conviction following the star witnesses admissions of untruthfulness.

Could it be that the fact that the killing took place in a public school made the goal of charging someone and obtaining a conviction a priority for the Toronto District School Board, Toronto Police Service and the Ministry of the Attorney General? The answer to this question can be found in reviewing the chronology of events following the occurrence combined with the swiftness of the decision to charge the defendants in light of what we now know to be the case against them. Chief Blair took the unprecedented step of visiting the crime scene. The defendants were charged within four days or so of the event. According to reports the police promised the key witness that she could remain anonymous and failed to take a sworn statement from her. On June 7th - some two weeks following the incident The Toronto District School Board appointed a lawyer with expertise in actions against public authorities - namely - Julian Folconer to investigate the issue of school safety. By August, 2007 the School Community Safety Advisory Panel released its interim report.


The role of the media in a free and democratic society is as much to observe and ensure that the rule of law is adhered to in legal proceedings as it is to simply report on the outcome of these legal proceedings. In discharging the first branch of this duty the media ought not to make friend or foe with the interests involved in the prosecution. Indeed it is this first prong of the role of the media which ensures accountability. When the media fails in this aspect of their role we the people are denied. The public in Toronto were not well served by the quality of the reporting in this case. In looking back on the coverage it is a testament to the soundness of the jury system and the skill, dedication and competence of the defence counsel that the rule of law prevailed notwithstanding. Now that justice has spoken perhaps we can get some answers on some of the following questions:

1. Why wasn't the statement of the "star witness" under oath ?

2. Why was she promised anonymity and by whom ?

3. Is there any truth to the suggestion that the killer is in
fact known to police and is not one of the defendants ?

Note: This piece is written for the sole purpose of encouraging public discourse on a matter of public importance. Democracy works better when ideas are freely exchanged and state action is subject to scrutiny.

Tuesday, May 3, 2011

Michael Ignatieff, Jean Augustine, Privilege and the Demise of the Liberal Party of Canada

A number of years ago I wrote a piece entitled "Why Jean Why ?" effectively protesting the Liberal Party of Canada's move to oust Ms. Jean Augustine from her Etobicoke Lakeshore riding to provide the new leader in waiting Mr. Michael Ignatieff with a seat. At the time I found this to be a move which I felt would come back to haunt the party. Here was Jean Augustine a West Indian woman who came to this country as a domestic servant and worked her way up to become a school principal and ultimately an elected member of parliament giving up her seat for a gentlemen who had spent the last 35 years or so out of the country and had - in my view - no leadership credentials. There seemed to me to be something seriously wrong with this picture. By my way of thinking Jean Augustine represented both the Canadian and Liberal dream. Here was a woman who literally came to this country with nothing and with hard work and determination was the embodiment of the Canadian dream being pushed aside for a man whose only visible credential was privilege. It mattered not that he had no leadership credentials. He was from a class of Canadians who were entitled to lead by virtue of their family history and educational credentials alone.

Tonight Mr. Ignatieff led the Liberal Party of Canada to a historical low. For the first time in Canadian history the party has been relegated to third place. I expected that. It was and remains abundantly clear to me that Mr. Ignatieff was in above his head. He is plain and simply not a leader. He is an academic. He may be good at that. However, leading a political party and a nation requires a skill-set that he simply does not have. Writing books and teaching at leading educational institutions in and of itself does not make one a leader. Leaders must be effective communicators. Leaders must possess a vision and passion. Despite all his academic accomplishments Mr. Ignatieff lacks the qualities necessary to lead effectively. This is not his fault. He is what he is. The fault lies at the feet of the power structure of the Liberal Party of Canada.

I am very disappointed tonight. I am disappointed not so much because of the loss but because it was so obvious to me that Mr. Ignatieff was not up to the job. I am disappointed because it is plain and obvious to me that the choosing of Mr. Ignatieff as leader of the Liberal Party of Canada had more to do with privilege and entitlement than merit and competence. Many may say - Ernie how could you be so naive. This is how things work. To that I say. Indeed - this is how things work in the labour market for now. However, the privilege and entitlement model does not work in the political forum. It does not work in the political forum because the candidate and all his flaws are open to pubic scrutiny. A fellow with a degree from Harvard or Oxford can make big bucks in jobs which others without those specific credentials are systemically excluded from. He can perform and live a happy and comfortable life because he is supported by the power structure which allowed him to be there. The political leader who is propelled to leadership on this model without regard to skill, passion and competence is doomed to fail. The times have changed. Privilege and entitlement just doesn't cut it anymore !

Sunday, May 1, 2011

Hernandez v. Texas: 57 years ago today

57 years ago today the U.S. Supreme Court released its landmark decision in Hernandez v. Texas. Until this significant civil rights ruling it was unclear whether the Equal Protection Clause of the 14th Amendment provided protection from the discriminatory impact of state legislation within racial groups. Up until this ruling state actors were of the view that the objective of this provision was limited to discriminatory applications of law as between Negros - as we were referred to then - and whites.

The facts in Hernandez were simple and powerful. Pete Hernandez, a Mexican American, was charged with first degree murder of his employer. He lived in an area in Texas, where not a single Mexican-American had been selected to sit on a jury in the past twenty-five years. He was tried by an all white jury and found guilty of first degree murder. His lawyers - all of whom were Mexican-American challenged his conviction under the 14th Amendment. Their argument was cogent and concise. Peter Hernandez was entitled to be tried by a jury of which Mexican-Americans like himself are at least entitled to participate. They demonstrated with the state's own records that Mexican-Americans were effectively excluded from jury duty. They argued that although Mexican-Americans were white they were nonetheless denied the equal protection and benefit of the law on account of their Mexican-American heritage compared to white Texans.

The State of Texas argued that Mexican-Americans are white and the 14th Amendment is limited to addressing inequality in the law as between whites and Negros. In addition, it argued that their jury selection process did not in fact rely on any racial considerations. It just so happened that Mexican-Americans were not selected to be on juries.

The U.S. Supreme Court led by Chief Justice Earl Warren rectified this narrow and most unfortunate reasoning. The court was unanimous in finding that the Equal Protection Clause of 14th Amendment was not limited to discriminatory laws affecting Negros and whites and that the exclusion of Mexican-Americans from jury duty was not accidental and was indeed a denial of their constitutional right to equal protection.


What lessons are we to take from this landmark decision ? The first lesson is that the problem of race is deeply rooted and entrenched in American society and goes beyond blacks and whites. So deeply rooted and entrenched is the race problem that it distorts or impairs reason and common sense. The second lesson is that it is truly comforting that most observers - including Texans - can readily see the perverseness of the state's position today.

Wednesday, April 6, 2011


Today one of the first and most brutal participants in the enslavement of Africans has asked for a bailout from the European Union. One would have thought that a country like Portugal which thrived on the blood and sweat of Africans would have received a sort of economic advantage relative to other nations who did not employ such barberic methods. Clearly they did not.

Oppression and enslavement do not last forever. In time we must all pay for our misdeeds. The currency for the compensation for the oppression and enslavement of innocent human beings is nothing short of like suffering.

Saturday, April 2, 2011

Dudley Laws: More than a "black activist" !

The contributions of Dudley Laws to Ontario society are significant and profound. No other single individual has had a more direct and positive impact on ensuring police accountability in the area of police use of force on the citizens of Ontario than Dudley Laws. The current system of civilian review of police conduct in Ontario only came to fruition as a direct result of his unwavering conviction that no one - including the police - are above the law.

Accordingly, I was saddened but not overly surprised when I attended the wake hosted by the Jamaican Canadian Association last night to honour this outstanding citizen to find that less than a handful of persons of European descent were in attendance - at least while I was there. Allan Tonks, Judy Scro, Peter Rosenthal, Bob Kellerman and maybe three others were in attendance while I was there.

I was similarly saddened in seeing only one member of the judiciary of African-Canadian ancestry - namely, Mr. Justice Tulloch at the wake last night.

History shows that great men of African descent are never embraced by the popular media, never, never by the dominant class in the community in which they live and never, never, never embraced by the adminstration of justice. It was not long ago that a respected Toronto Sun columnist openly referred to Mr. Nelson Mandella as a terrorist. I could go on and on and on.

What is a "black activist" anyway ? Those who saw Mr. Laws as merely a "black activist" will be shown by history to be part of the problem which he fought so hard to change. Public Enemy said it best in their song entitled "Don't believe the Hype". I quote in memory of Mr. Laws:

"They claim that I'm a criminal
By now I wonder how
Some people never know
The enemy could be their friend, guardian
I'm not a hooligan
I rock the party and
Clear all the madness, I'm not a racist
Preach to teach all
'Cause some they never had this
Number one, not born to run
About the gun...
I wasn't licensed to have one
The minute they see me, fear me
I'm the epitome - a public enemy
Used - abused without clues
I refused to blow a fuse
They even had it on the news
Don't believe the hype..."

...."Never played the fool, just made the rules
Remember there is a need to be alarmed
Again I said I was a timebomb
In the daytime the radio scared of me
'Cause I'm mad, plus I'm the enemy
They can't c'mon and play me in primetime
'Cause I know the time, plus I'm gettin mine
I get on the mix late in the night
They know I'm livin right.."

Note: This piece is written for the sole purpose of drawing attention to an issue of public importance - namely - the valuable contributions made Mr. Laws to both the law and quality of life in Ontario and his marginalization for so doing.

Thursday, March 31, 2011


Any effort to tackle the so called "access to justice problem" in the Ontario justice system must begin with a clear definition on what is meant by the term "access to justice problem." For the purpose of this commentary the "access to justice problem" in Ontario speaks to the lamentable circumstance which sees ordinary Ontarians unable to access legal services on account of its prohibitive costs. The manifestation of this very serious problem is evidenced by the steadily increasing number of self-represented litigants coupled with the increasing amount of time it takes to bring a case to resolution. In this commentary I will attempt to identify some of the impediments to access to justice and suggest a few policy prescriptions to tackle the problem.


A few years ago I assisted a friend in trying to retain a family lawyer. My friend was a a single woman earning a bit over $40,000 per year with a mortgage free home worth roughly $225,000. All the lawyers I approached on her behalf except for one stated matter of factly, "she can't afford me." The one lawyer who agreed to take the case quickly devised a plan which called for her to move into an appartment and sell her house. It was crystal clear to my friend that what this lawyer was saying to her was that she would pay his fees with the proceeds of her house. This experience caused me to think seriously about this issue. I realized that if this single woman who was earning $40,000 a year could not afford a lawyer and the average family income in Ontario is in the area of $60,000 per year then who can ? As the evidence is beginning to reveal there is a significant number of individuals in Ontario who can not afford lawyers fees.

Policy makers who are serious about accesss to justice need to bring all the stakeholders together to look into the question of how can we make the cost of legal services accessible to average citizens. As unpalatable as it is this may require a review of how legal servicces are billed.

Insurance coverage of
defence costs only:

Some years ago I was involved in a case against Women's College Hospital. I was representing a poor woman who asserted that she was fired from her employment because she asserted her right to overtime pay under the Employment Standards Act. In the course of this litigation I came to learn that the hospital's legal defence was fully covered under an insurance policy which provided for their full defence costs but not for liability. I was made to understand that any liability payment would come from hospital revenues and not the insurer. I was many years younger then but I understood that this type of insurance coverage was very problematic to the efficient operation of a civil litigation system because there is no insentive for the hospital to settle and certainly an incentive for counsel representing the hospital to litigate the case rather than settle the case.

Policy makers who are serious about access to justice need to look into the impact that this type of insurance coverage has on acting as an impediment to the quick and efficient resolution of disputes.

Costs on interlocutory
motions and trials:

The conventional wisdom thinking that all litigants must be treated the same when it comes to the adjudication of the issue of costs in civil litigation has been in my personal experience one of the most significant impediments to access to justice in Ontario. The reason is simple. A costs award against GM in a proceeding against RBC is a mere cost of doing business which will have very little impact on their viability. A cost award against a poor litigant who was beat up by the police and is unable to work is clearly a very different matter. The costs award against the poor litigant can and too often slams the doors of justice in their faces. Costs awards on both interlocutory motions and trials are all too often creating an impediment to access to justice.

Policy makers who are serious about access to justice need to reevaluate this practice. The principle that costs ought not to deprive a poor litigant access to the courts to have their case heard on it merits likely requires some sort of statutory amendment in the Rules of Civil Procedure or Courts of Justice Act to that effect. The current practice of leaving this to the court's discretion is not working very well it would seem. Readers who are interested in this point should review Justice Dennis Lane's costs decision in Walsh v. Regenscheit where he said that the people pay for the courts and they ought not to be denied entry because of the fear of losing their case and the devastating financial consequences that may flow from that. Justice Lane is a wise man.

NOTE: This piece is written for the sole purpose of exchanging ideas on an issue of publice importance. Democracy and the rule of law work better with the free exchange of ideas.

Tuesday, March 22, 2011

McKay v. Toronto Police Services Board ruling highlights inconsistencies in HRTO adjudicative process

The Ontario Human Rights Tribunal's recent decision in McKay v. Toronto Police Services Board et al 2011 HRTO 499 provides a splendid example of the apparent struggle that this adjudicative body is having in developing a consistent and logical legal framework for its decisions. This recent ruling finding that a Toronto Police Service officer racially profiled an Aboriginal complainant stands in stark contradiction to the Tribunal's decision in Clennon v. Toronto East General Hospital 2009 HRTO 1242 - an allegation of age discrimination in the firing of a long-term obstetrical nursing manager who was fired "without cause" and denied common law severance unless she signed a release acknowledging that her rights under the Code were not violated by the employer.

In McKay the Tribunal subjects the evidence to a level of scrutiny that is commensurate with the quasi-contitutional nature of these statutory rights. Vice Chair Edna Chadha clearly states in her reasons the fundamental part that credibility plays in the adjudication of these claims. She cites and applies established legal authorities such as Faryna v. Chorney [1952 2 DLR 354 and applies the principles articulated therein to the facts. She recognizes and articulates the key concepts for evaluating and scrutenizing evidence - namely - credibility and reliability. She points out that they are distinct concepts. Credibility she indicates refers to the honesty and sincerity of the witness while reliability deals with the accuracy and faliability. She states in her reasons and therefore recognizes that a tribunal is entitled to accept or reject some, all or none of a witness' evidence. In this case the Tribunal actually evaluates and weighs all of the evidence - viva voce and documentary.

In Clennon the Tribunal employs a radically different approach. Here the Tribunal ruled that the employer fired Mrs. Clennon for a non-discriminatory motive, namely, poor performance. This was based on her supervisor reciting a litany of unproven allegations of poor performance which she claimed to rely upon in making her decision to terminate. The Tribunal received this evidence characterizing it as non-hearsay - holding that it went to the supervisors state of mind and establishing that she did not rely on age to terminate. In this case the Tribunal did not assess credibility and reliability of the evidence even though the Tribunal made significant credibility findings against the supervisor who testified. The Tribunal found against her on three crucial evidentiary points in the case. The first two focussed on two statements she made to Mrs. Clennon suggesting that she ought to take early retirement and the other was that she told Mrs. Clennon that she was dismissed from her previous position at Humber River Regional Hospital. These adverse credibility findings are further compounded by the Tribunal's finding that none of the alleged incidents relied upon as poor performance were brought to Mrs. Clennon's attention as performance issues and were very poorly documented. The Tribunal even found that the supervisor who effected the dismissal did not speak truthfully to the vice-president who authorized it.


The claim that the Tribunal possesses expertise in the areas within its jurisdiction is a very hallow one in light of the above. Labour relations and securities regulations are clearly areas that require some special knowledge for the proper adjducation of rights in those areas. I question whether the same is true for human rights. At the end of the day the proper adjudication of a human rights case boils down to the assessemnt and evaluation of the evidence. It is generally a he said she said inquiry. Tribunals of this nature do not hold any monopoly on the skill and legal wisdom needed to assess and evaluate evidence in accordance with law. There is no expertise there that the courts ought to defer to.

NOTE: This piece is written for the sole purpose of encouraging debate on a matter of social importance - namely - the proper adjudication of human rights in the Province of Ontario.

Sunday, March 20, 2011

Was police and other misconduct responsible for Wilton Smith's conviction ?

How does a criminal prosecution go from the judge at the preliminary inquiry candidly telling the prosecutor moving for committal on a charge of first degree murder on August 10, 1992 - "there is no evidence linking this man to this crime" - to that man, Wilton Smith, ending up being found guilty of first degree murder on April 29th, 1994 by a jury of his peers ? The answer to this key question is the key to Wilton Smith's liberty. In this post I will outline some of the facts and circumstances in the prosecution of this case which lend support to a theory that police and other misconduct/negligence may have contributed to yet another innocent man being found guilty of a crime he maintains he did not commit.

Linkage evidence:

The statement made by the preliminary inquiry judge - thankfully those statements are captured in the portion of the transcript that is still available is the starting point to this inquiry. This statement must have been made for a reason. I will suggest that it was made because up until that point in the preliminary inquiry there was in fact no evidence linking Wilton Smith to the crime. What the exact nature of the 'forensice evidence" is that was presented subsequent to that statement is we will never know since those transcripts were either "lost or destroyed." However, because the matter went on to trial it is safe to conclude that the evidence adduced at trial ought to have mirrored or was similar to that evidence.

Blood on clothing ?

The Crown led evidence at the trial suggesting that blood from the deceased was found on the clothing that Wilton Smith was wearing when he was arrested. Wilton Smith was photographed wearing the clothes which he was arrested in and those clothes were seized by police constable Bockus. Those photopraphs were not presented as evidence at the trial or the preliminary inquiry. Officer Bockus seized the clothing and submitted them to the Centre of Forensic Sciences for testing. If indeed photographs were taken of Mr. Smith wearing these clothes on arrest - why were these photographs not presented as evidence at trial or the preliminary inquiry ? What happened to these photographs ?

Weak linkage evidence ?

The key to both committal and conviction in this case was linkage evidence. Here a woman was found by her live-in friend who claims to have found her dead in the living room and the friend did not see or hear anything. No murder weapon was recovered either. Clearly, it is not an understatement to suggest that the evidence adduced after the preliminary inquiry judge's bold statement that there was "no evidence linking this man to this crime" was crucial to Wilton Smith both making full answer and defence at trial and in subsequently addducing evidence to show that his conviction was a miscarriage of justice.

When was the further evidence
transcripts destroyed or lost ?

The key questioon is when did the Ministry of the Attorney General lose or destroy the crucial evidence contained in the transcripts of the preliminary inquiry following the August 10th, 1992 proncouncement of "no evidence linking this man to this crime" ? I would surmise that there are two scenarios. Scenario one would be that the destruction took place pursuant to a retention policy that required them to be kept for a reasonable period of time. It would stand to reason that this reasonable period of time would not be prior to the conclusion of the trial - namely - April 29th, 1994. One good reason for this policy of keeping the preliminary transcripts available for trial is because it is often used to challenge the trial evidence. What is said at the preliminary inquiry and what is said at trial ofen differs. Did defence counsel encounter any problems securing this vital evidence ? The second scenario is that this crucial evidence was lost or destroyed prior to Wilton Smith's trial. If this is the case then it begs the question why ? The answer to this question only the custodian of these documents can answer.

The I.D. Witness Joseph Pryce:

The lawyer for the prosecution(crown attorney)led evidence from one Joseph Pryce to the effect that Mr. Pryce saw Wilton Smith come into his shop to sharpen a machete. The crucial question of when and whether in fact this witness made his observations of Wilton Smith have been the subject of prior postings on this blog. For the purpose of this posting the key point is this. Joseph Pryce did not testify at the preliminary inquiry. He could not have. He could not have have because Detective Scott Bronson testified that he only met with him on January 25th, 1993 when he attended at Mr. Pryce's place of work and showed him some photographs and Mr. Pryce picked out Wilton Smith. In addition, it appears that Mr. Pryce did not call the police to report his observations prior to their attendance at his place of work on January 25th, 1993. This conclusion is supported by the following excerpt from the trial transcript involving the prosecution lawyer - Mr. McDermott, the trial judge(Justice Ewaschuck) and defence lawyer - Karen McArthur:

Mr. McDermott: "My lord, the only - the only issue on the
other side of that though is it's quite
clear from the evidence, abundantly clear,
that Joseph Pryce didn't go to the police
with the information. The police came to
him. So that channel didn't start with
Jospeph Pryce in any way."

Justice Ewaschuck: Did you get out of him that he didn't call ?

Mr. McDermott: Yes, I said, did you have any idea that the police
were going to show up on that day or anything
about this case ? Nothing, he said, nothing.
He put it out of his mind he said.

Ms. McArthur: But what Mr. McDermott didn't lead from Mr.
Pryce is how the police did connect to Mr.

Justice Ewaschuck: Right. There is no evidence in the case as
to how the police came to know that Joseph
Pryce may have known something relevant
about this case. The only evidence is that
Detective Bronson found Joseph Pryce.
Joseph Pryce did not call the police. He
was surprised at their arrival. Is that
harmful at all ?

Ms. McArthur: I don't think it accurately reflects the
state of the facts as Mr. McDermott even
knows, my lord.

Mr. McDermott: I just as soon Ms. McArthur not impugn
anything to me in her submission, my

Justice Ewaschuck: I agree. It will go to the jury.

Later on the jury is brought in and they are told the following on this point by the trial judge:

"Three, this is your question, "if possible
how Joseph Pryce's testimony came to be found ?
Number three, this is the response - there
is no evidence in the case as to how the
police came to know that Jospeh Pryce may
have had - may have known something
relevant about the case. The only evidence
is that Detective Bronson found Joseph Pryce.

Commentary and analysis:

The evidence linking Wilton Smith to the murder of Patricia Innis is not only weak but its probative value is seriously circumspect for the following reasons:

1. Assuming Smith had blood stains linking him to the murder
on clothes seized by members of the Toronto Police Service -
why would they waite until a judge tells them there is no
evidence linking him to the murder - after the prosecution moved
for commital to put it into evidence ?

2. Where are the photos taken of Wilton Smith in the clothes he
was arrested in ?

3. When was the preliminary inquiry transcripts post August 10,
1992 lost or destroyed ?

4. Why is it that not all of the transcripts from the prelimnary
inquiry were destroyed if it was destroyed pursuant to a
retention policy ?

5. Who is this man said to be Joseph Pryce ?

6. Where is this man Joseph Pryce ?

7. How did Detective Bronson know to just attend at Pryce's
place of work one day fully armed with a photo-line-up kit ?

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance - namely - the propriety of Mr. Smith's conviction for first degree murder. Anyone having any information which can shed light on the questions raised in this publication are asked to contact the writer.

Saturday, March 5, 2011

Clennon v. Toronto East General Hospital: Non-hearsay they say ?

In Clennon v. Toronto East General Hospital HRTO 1242 the Ontario Human Rights Tribunal ruled that the respondent employer violated Mrs. Clennon's right to be free from discrimination based on her age. Ordinarily, one would welcome such a finding. However, such was not the case here. The reason for this follows from the limited and bizare nature of the Code violation which the Tribunal found. The Tribunal ruled that Toronto East General Hospital violated Mrs. Clennon's righs under the Code not by virtue of her termination "without cause" and to replace her with a "younger and cheaper worker" as she alleged in her compliant but because they failed to allow her an opportunity to improve her performance pursuant to their polices before terminating her employment of some 24 years.

Shockingly, the Tribunal came to its conclusion that Mrs. Clennon's performance was wanting not from hearing from witnesses with actual knowledge of the various performance issues raised by the hospital in defence but instead as relayed by the then Director, Ms. Natalie Cournoyea. The Tribunal came to this conclusion in the face of the following findings of fact:

1. Despite her denials Natalie Cournoyea stated to Mrs. Clennon,

(i) "Why don't your retire;

(ii) "Why don't you consider retiring ? your husband is retired
and it would be good to be retired with him".

2. Toronto East General Hospital fired Mrs. Clennon "without cause"
after 24 years of service as an obstetrial nurse and for roughly
three of those years as Manager of the Birth Centre by denying
her common law severence unless she signed a release in their favour
acknowledging that they did not violate her rights under the
Ontario Human Rights Code;

3. The worker who replaced Mrs. Clennon, one Claudette Manhue, was
some 16 years younger than Mrs. Clennon and Mrs. Clennon had won
the competiton for the same position some three years prior
against the same worker;

4. The Tribunal expressly found that:

"I have found that none of the specific incidents
relied upon to support the applicant's termination
were specifically raised with her as performance
issues. The Director admittedly never brought home
to the applicant that her failure to address
performance deficiencies could jeopardizde her
continued employment at the hospital."

Non-hearsay ?

In response to the Mrs. Clennon's application for reconsideration of this decision she alleged, amongst other errors, that the non-discriminatory motive - namely - the alleged poor performance to justify her dismissal relied on inadmissable hearsay. This is what the Tribunal ruled in response on the reconsideration application:(see 2010 HRTO 1693)

"I also do not agree with the characterization of
the 360-degree assessment and the performance-related
information from e -mails, letters and notes as "hearsay
evidence." Evidence is hearsay evidence when a third party
relates what was told to her in an attempt to assert the
truth of the statement made. In the instant case, the respondent
was not proferring the 360-degree assessment and other
performance-related information in order to establish the truth
of the statement made therin. Rather, this information was put
in support of the Director's evidence that she relied on these
performance-related issues as the explanation for her termination
decision, and that the applicant's age was not a factor. The
relevant issue for me was why did the Director make the decision
to terminate the applicant's employment and was her age a factor
in that decision, and the Director provided direct evidence on
that issue."

The classic danger of hearsay
illustrated by Tribunal decision:

Notwithstanding the pronouncement quoted above regarding the purpose for which Toronto East General Hospital adduced the alleged poor-performance evidence, the Tribunal's ruling on remedy (2010 HRTO 506) clearly reveals that the Tribunal relied on this evidence for its truth. This is what the Tribunal wrote on this point:

"In making my determination, I am instructed by the adage that
in order to solve a problem, a person first must recognize that
there is a problem. I did not see this from the applicant. As
a result, in my view, it is more likely than not that, even had
a performance management plan been implemented, the applicant is
unlikely to have been willing to accept and acknowledge her
performance deficiencies as a first step to correcting them.
Accordingly, I find that even if a performance managment plan had
been implemented, the applicant's employment as Manager still would
have been terminated by the respondent. In terms of the timing of
the termination, I find that a period of over one year for
implementation of a performance management plan is not unreasonable,
with the result that I find that the applicant's employment as
Manager would have been terminated on July 5, 2005 in any event."

Human Rights Tribuanl
Code of Conduct:

Article 43 of the Code of Conduct applicable to members of the Tribunal stipulates that -

"A member shall make each decision on the true merits and justice
of the case, based on law and on the evidence led before him or her."

Article 44 stipulates that -

"A member shall apply the law to the evidence in good faith and to the
best of her/her ability"...

Commentary and analysis:

Public policy in Ontario long has recognized the paramount importance which the right to be free from discrimination and harassment based on age and other enumerated grounds plays in our society. The legislative decision to enact laws and a system of adjudication to resolve these important claims is consistent with the quasi-constitutional nature of these rights. As laudable as these steps are, they are rendered meaningless when the body adjudicating those important legal rights has inadequate safe-guards to ensure that decisions are rendered in accorance with law. The Tribunal would be wise to have reconsideration applications which raise important questions of law touching on the fairness of a case referred to either the Chair or a full-board for review. In addition, the Tribunal and or law-makers in Ontario ought to review the very lementable condition which sees litigants like Mrs. Clennon spend significant sums of money to assert what is a quasi-constitutional right - often against state actors like Toronto East General Hospital and others - who spend public funds with impunity to defeat these rights and indeed the poor litigants and are unable to recover the cost of their legal representation in these proceedings. How can this be right ?

Note: This piece is written for the sole purpose of drawing attention to a matter of public importance in the community and to encourage public discourse.

Friday, March 4, 2011


In its recent ruling in Snyder v. Phelps et al the U.S. Supreme Court once again affirmed the right of freedom of speech even if the content of the speech is offensive and even outrageous. The court upheld the decision of the U.S. Federal Court of Appeal(4th Circuit) setting aside a jury award to Mr. Snyder for intentional infliction of mental distress and other torts based on the offensive and outrageous content of the suject speech relying on a state statute.

The basic facts:

Mr. Snyder was awarded a multi-million dollar judgment by a jury in a civil action which he brought against Mr. Phelps and his followers from the Westboro Baptist Church as a result of injury he alleged he suffered as a result of their hurtful and outrageous speech and demonstration at his son's funeral held at a local Catholic church. Mr. Snyder was buring his son - a U.S. soldier who died in combat in Iraq. Members of this church are fundamentally opposed to homosexuality and especially homosexuality in the U.S. Army. Consequently, the followers of this church advocate that God hates the U.S. and make it a practice to communicate their message at the funerals of U.S. military personnel. The court record confirmed that the protesters in fact followed the applicable city ordinances with respect to their protest and their message was largly resticted to messages on picket signs. The messages included the following: "God hates fags", "Fags doom nations", "The U.S. is doomed", "Thank God for dead soldiers", "Priests rape boys" and "You're going to hell." At trial a jury found that the conduct of the protesters was outrageous and found for Mr. Snyder.

U.S. Supreme Court Analysis:

The U.S. Supreme Court begins its consideration of the constitutional issue raised in the case by clearly acknowledging the fundamental and paramount place that the First Amendment right to free speech holds in the legal system. Commensurate with this approach, the court does not merely accept the findings and conclusions of the lower court under some theory of judicial deference to the lower courts "discretion" but it reviews the entire record with a view to satisfying itself that the lower courts conclusions are sound in law. Following a review in this manner, the court determined that the speech in question involved comment on public issues and the effect of the state statutory enactment relied upon by the jury awarding damages to Mr. Snyder effectively curtained the content of the protesters speech by virtue of the award of to Mr. Snyder. The court acknowledged that the content of the speech was hurtful and outrageous. However, the court pointed out that they could not censor or punish the picketers merely becasue the content of their speech was hurtful. Chief Justice Roberts wrote:

"Speech is powerful. It can stir people to action
, move them to tears of both joy and sorrow, and as
it did here - inflict great pain. On the facts before
us, we cannot react to that pain by punishing the
speaker. As a nation we have chosen a different course -
to protect even hurtful speech on public issues to ensure
that we do not stifle public debate. That choice requires
that we shield Westboro from tort liability for its
picketting in this case."


Some observers will argue that the courts have no business second-guessing and effectively substituting their opinion for that of the democratically elected law-makers who passed the state law circumscribing the picketter's rights to free speach. These observers fail to understand and appreciate the depth, purpose and scope of the U.S. Constitution. Unlike constitutions in other "free and democratic" nations, the drafters of the U.S. Constitution appear to have intended to make a clear departure from English law. A constitution under the U.S. model is the supreme law of the land because it provides the legal framework within which the legislature remains accountable to all of the people all of the time. It is not for the state to have absolute authority to decide what speech is acceptable. This ruling is consistent with what I understand to be the rule of law - namely - the law applies to all - including the state. When the state is above the law - either by design, omission or custom individual rights are left vulnerable to the arbitrary exercise of judicial discretion and state power.

Note: This piece is written for the sole purpose of encouraging public discourse on a matter of publice importance.

Tuesday, January 18, 2011

Clennon v. Toronto East General Hospital : A Case Comment

Basic Facts:

Mrs. Clennon was trained as a mid-wife and registered nurse in England. In 1981 she was recruited from England by the Toronto East General Hospital to join their birthing unit. She commenced employment with Toronto East General Hospital in Janury 1981. By all accounts Mrs. Clennon was an exceptional and highly regarded nurse with considerable experience and expertise in the obstetrial area. In 2002 the hospital managment approached her to take up the position of Manager for the birthing centre. They were fully aware that she lacked some of the skills necessary for the job but were satisfied that with proper coaching she could pick them up and they promissed to do just that. Mrs. Clennon took up the position in 2002 and was terminated on July 5th, 2005 without cause. Mrs. Clennon was 59 years of age at the time of her dismissal. She was offered 18 months severance on the condition that she sign a release denying that her rights under the Ontario Human Rights Code were violated by the hospital. Mrs. Clennon refused to sign this release and as a result did not receive the 18 months severance. The hospital did, however, pay her severance and termination pay of some $36,000 under the Employment Standards Act. Mrs. Clennon was subsequently replaced by a younger worker - Claudette Manhue - whom she had previously beat out in the job competition for Manager in 2002. Some time after Clennon's dismissal and Manhue's hiring the hospital dispensed with one of the two nursing manager positions which they had when Mrs. Clennon was manager and Ms. Manhue was given enhanced responsibilities and increased pay. The monetary saving to the hospital was considerable since each nursing manager was paid roughly $80,000 compared to the $90,000 paid Ms. Manhue.

Thrust of human rights

Mrs. Clennon brougth a human rights complaint to the Ontario Human Rights Commission alleging that she was dismissed on account of her age contrary to the Ontario Human Rights Code. She was fired without cause. Her replacement - Claudette Manhue was 16 years younger.

Toronto East General Hospital's

Although the hospital purported to terminate Ms. Clennon's employment without cause and paid her severance and termination pay under the Employment Standards Act, their defence to her allegation of the Code violation was that she was fired for poor work performance. The hospital presented a book of documents with a litany of alleged complaints by various nurses and individuals - none of whom were called as witnesses by the hospital. The hospital called two witnesses - Natalie Cournooyea - Director of Nursing and Mr. Milton Obrodovich - Vice-President of Patient Care. The gist of the poor perforamance evidence was that a litatny of complaints were brought to the attention of the Director and she decided to terminate Mrs. Clennon's services. Unfortunately, Ms. Cournoyea appears to have mislead the Vice-President - whose authorization was necesary for the dismissal - by informing him that she had taken all steps to help her improve her performance before deciding on termination pursuant to the hospital's own policies.

Mrs. Clennon's testimony:

Mrs. Clennon was very consistent in her evidence in both denying the alleged poor performance allegations and in the fact that they were never communicated to her as being issues that put her job in jeapordy. The Tribunal's following finding of fact on this point is very telling:

"I have found that none of the specific incidents
relied upon to support the applicant's termination
were specifically raised with her as performance
issues. The Director admittedly never brought home
to the applicant that her failure to address performance
deficiencies could jeapordize her continued employment
at the hospital."

Tribunal Ruling:

The Tribunal went on to rule that Toronto East General Hospital had violated the Ontario Human Rights Code in effecting Mrs. Clennon's dismissal but somehow the Tribunal concluded that the hospital had succeeded in establishing a non-discriminatory motive for the dismissal - Mrs.Clennon's poor work performance. The Tribunal ruled that the Code violation resulted from the hospital's failure to provide Mrs. Clennon with an opportunity to improve her performance pursuant to their policy. Having found this limited violation of the Code the Tribunal reasnoned that reinstatement was not a viable remedy in the circumstances. The Tribunal found as a fact that Mrs. Cournoyea uttered the following two age aniums statements to Mrs. Clennon prior to the dismissal: 1. "Why don't you retire ?" 2.
"Why don't you consider retiring ? your husband is retired and it would be good to be retired with him."

Reconsideration sought
and denied by Tribunal:

Mrs. Clennon sought reconsideration of this decision. The challenge was based on amongst other grounds the fact that the Tribunal had effectively relied on pure hearsay evidence in finding that the employer had established a non-discriminatory motive for her dismissal. The Tribunal summarily dismissed her application. This is what the Tribunal wrote on this point:

"Evidence is hearsay evidence when a third party
relates what was told to her in an attempt to assert
the truth of the statement made. In the instant
case, the respondent was not proferring the 360-degree
assessment and other performance-related information
in order to establish the truth of the statements made
therein. Rather, ths information was put forward in
support of the Director's evidence that she relied on
these performance-related issues as the explanation for
her termination decision, and that the applicant's age
was not a factor. The relevant issue for me was why did
the Director make the decision to terminate the
applicant's employment and was her age a factor in that
decision, and the Director provided direct evidence on
that issue."

The following quote fromt the Tribunal's reconsideration decision calls into question the soundness of the Tribunal's reasoning and analysis:

"...the fact that some performance concerns were not
raised with the applicant by the Director does not
necessarily mean that the Director didn't nonetheless
have these concerns. Indeed, upon an exhaustive review
of the evidence in my Decision, it was my determination
that while the Director did not raise some of the specific
performance concerns with the applicant, she nonetheless
was concerned about the applicant's performance and that
was the reason she made the decision to terminate."

Analysis and commentary:

Our higher courts have consistently characterized human rights legislation as quasi-constitutional. This quasi-constitutional status is rendered illusory if we allow inferior tribunals like the Ontario Human Rights Tribunal to undermine the clear and positive legislative intent of the legislation. It is one thing to provide inferior tribunals like the Ontario Human Rights Tribunal with flexibility and latitude to make rules and to effectively govern their proceedings - but such tribuanls must always do so in accordance with law. Established legal principles in employment law such as the need to bring home to a worker that their conduct is wanting is not a trivial matter. The ability to effectively challenge an allegation of poor performance is effectively denied where the employer calls no viva voce evidence. A proper application of the law calls for an adverse inference being drawn against the party in control of evidence who fails to call it. The individuals who authored the various documents making up the poor performance evidence were employees of the hospital. They ought to have been called and subjected to cross-examination. This decision is not only patently unreasonable but it is also perverse.

Note: This piece is written for the sole purpose of sharing views and ideas on an issue of public importance - namely - human rights.

Saturday, January 8, 2011

Was Patricia Innis the victim of a jealous spouse ?

There is no doubt that the police did not investigate the question of whether any other person could have a motive to murder Patricia Innis. They arrested and charged Wilton Smith the day following the murder and clearly articulated the theory of their case to the media. Wilton Smith was awaiting disposition on a charge of uttering threats involving Ms. Innis and therefore they reasoned that he killed her so she could not testify against him.

As is so often the case in situations where the Defendant asserts that they were wrongly convicted, evidence presented at the trial puts a very different gloss on the initial police theory of the case. The Wilton Smith case is no exception and is somewhat unique. The case is unique because no one witnessed Wilton Smith commit the murder. No one placed Wilton Smith at the scene of the crime other than Wilton Smith himself. Iona Davis claimed that she discovered the dead body in the apartment that she shared with her and her infant child - Ocheann. The evidence offered by Iona Davis and Delroy Benjamin was that Wilton Smith drew Delroy Benjamin out of the house by telling him that his employer was hiring and that he Delroy should come down and apply for a job. While Delroy is away - someone sneeks into the home and murders Patrica Innis. This version of the murder does two things. Firstly, it tends to absolve Davis since she is the one who called the police. Secondly, it removes Delroy Benjamin from the crime scene and at the same time casts a shadow over Wilton Smith.

Analysis of police theory
of Wilton Smith liability:

The police theory of liability is crude and simplistic. Wilton Smith was awaiting trial on March 12th, 1992 on a charge of uttering a threat to cause death to Patricia Innis therefore he killed her so she could not testify against him. Iona Davis discovered the body and called the police. Delroy Benjamin was lured out of the house by Wilton Smith so that he could sneek in the apartment and murder Patricia Innis. After Wilton Smith is committed to stand trial police somehow attend at Joseph Pryce's place of employment with a photo-lineup prepared to show to him and he picks Smith out as "the man who came in to sharpen the machete." Pryce testified that he did not contact the police prior to this and they did not contact him. He said he was surprised when the police arrived and wanted to talk to him. Not surprisingly the jury found this quite remarkable and asked the trial judge how did the police come to know of Joseph Pryce. The judge told them there was in fact no evidence of this in the trial.

Was this a jealous spouse
murder ?

Iona Davis and Delroy Benjamin were a married couple. Evidence at the trial confirmed that prior to coming to Canada they lived as a couple, had two children together and were formally married in March 1993. Ms. Davis arrived in Canada from Jamaica on January 29th, 1992. Prior to her arrival in Canada, Mr. Benjamin was already in Canada and he admitted to sleeping at Ms. Innis' home "several times". Ms. Davis started residing with Ms. Innis in February - some two to three weeks prior to the murder on March 10th, 1992.

Did Mr. Benjamin
impregnate Patricia Innis ?

Wilton Smith testified at his trial that some time in February, 1992 Ms. Innis reluctantly informed him that she was pregnant and that Delroy Benjamin was the father. He further testified that she decided and to his knowledge she had an abortion some time in February. Mr. Smith testified that Ms. Innis was very ashamed of the situation and she requested that he keep it a secret and not tell anyone. Iona Davis testified that she was informed of Ms. Innis's pregnancy by Delroy Benjamin. Delroy Benjamin testified that Ms. Innis told him "in a sense that she was pregnant." Keep in mind the timing of these three incidents, namely, Iona Davis' moving in with Patricia Innis, news of the pregnancy and the abortion. Let us now examine the testimony around these issues:

Defence Lawyer: Now, the relationship that you had with Patricia we have
discussed. You guys were very, very good friends I think is how
you put it ?

Benjamin: That's correct.

Defence Lawyer: And I gather that Patricia told you that she was pregnant ?

Benjamin: No, she didn't told me in a sense. No, she didn't told me in
sense that she was pregnant.

Defence Lawyer: She didn't tell you in a sense ?

Benjamin: No.

Defence Lawyer: She told you in some other sense that she was pregnant ?

Benjamin: Yeah.

Defence Lawyer; And that was a conversation between you and Patricia ?

Benjamin: Not really a conversation.

Defence Lawyer: You and Patricia were doing the talking -- or Patricia was doing
the talking and she suggested to you something you so you believed
she was pregnant ?

Benjamin: No.

Defence Lawyer: No ?

Benjamin: No. I saw her sitting looking in space and I ask her, what's
wrong with you; are you pregnant ? And she say, hm-hmm, that's

Defence Lawyer: So she said hm-hmm in the affirmative ?

Benjamin: Yeah.

Defence Lawyer: Okay. Now, I guess you know that Patricia didn't tell Iona that
she was pregnant ?

Benjamin: I don't know.

Defence Lawyer: You don't know that ?

Benjamin: No.

Defence Lawyer: How many nights did you spend at Patricia's place Mr. Benjamin ?

Benjamin: I don't know how many nights. Several.

Defence Lawyer: Several ?

Benjamin: Yeah.

Davis' evidence on
the pregnancy:

Defence Lawyer: Miss Davis, did you know anything about Patricia being pregnant ?

Davis: She didn't tell it to me.

Defence Lawyer: Did you know anything about it ?

Davis: Delroy tell it to me.

Defence Lawyer: Do you remember when he told you about it ?

Davis: No.

Defence Lawyer: Did you find out anything about who was the father ?

Davis: No.

Defence Lawyer: Now, when Delroy told you about it, was it before or after
she died ?

Davis: Before she died.

Defence Lawyer: Now, was that when you were living with her ?

Davis: Yes.

Defence Lawyer: And Patricia is a good friend to you ?

Davis: Yes.

Defence Lawyer: And that was before she died. And were you staying with her at
that time ?

Davis: No.

Mr. Smith's Evidence
in brief:

Wilton Smith testified under oath that Ms. Innis told him in February, 1992 that she was pregnant with Delroy Benjamin's child. He testified that she decided to and did in fact have an abortion in the same month. According to Smith Davis moved in with Patricia Innis after the abortion. Mr. Smith told the jury that it was Ms. Innis who pushed him to assist Delroy in trying to find a job. Smith confirmed that at some point in February he did take Delroy to his place of work in search of work. However, he denied calling him on the morning of March 10th, 1992 to lure him out of the house. Instead - Smith told the jury a very different version of facts.

Patricia's call the
night before:

Wilton Smith testified that the night before the murder he received a call from Patricia Innis asking him to come over to her place. He testified that there was a lot of noise in the background but he could not identify who it was. He testified that he asked her what was wrong but she would not say other than to tell him to come over. Smith testified that he did not go as it was late but he called her in the morning and she again asked him to come over and he did.

According to Smith's testimony he arrived at the apartment and Davis, Benjamin, Innis and Ocheann were all in attendance. Wilton testified that Patricia was relaying some dissatisfaction pertaining to monies owed her by Delroy or something along those lines. He said he needed to urinate and accordingly entered the washroom and was in the process when he stated something to the effect - "I told you long ago to run those loafters out of your place." Delroy Benjamin exclaimed - "what did he say ?". Smith testified that Innis responded in an angry tone, "He said I should run you loafters out of my place." According to Smith this triggered a violent reaction from Benjamin who then rushed the washroom and started fighting with Smith. while the two men were fighting the deceased stated that she was going to call the police. According to Smith the two women then got into a very heated exchange of words where the deceased referred to Davis as a "mule" - a women who can not conceive and Davis fired back called the deceased a "cemetery" - a woman who has had an abortion. Wilton Smith testified that while he was fighting with Delroy he looked over and the deceased was on the floor with Davis standing over her with a bloody meat-cleaver in her hand. Smith testified that Delroy threatened that if he told anyone his mother would be dead. Smith said he ran out of the apartment in fear.

To be continued....

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance. The rule of law and democracy works best when ideas are freely exchanged.

Saturday, January 1, 2011


As the new year arrives replacing the old one my mind is drawn once again to the plight of my client - Wilton Smith - who is serving a life sentence for a murder he maintains he did not commit. A careful review of the developments in his case from the preliminary inquiry judge's admonishment to the prosecutor that there was no evidence linking him to the murder to the unexplained discovery of a witness - Joseph Pryce - who testified that Wilton Smith attended at his shop to sharpen a machete raises some serious and troubling questions surrounding both the competence and ethics of the police investigation carried out by the Toronto Police Service.

A Rush to Judgement ?

On March 10th, 1992 Ms. Iona Davis called Toronto Police Service to report that she had discovered Patricia Innis' almost decapitated and lifeless body in the apartment which she was sharing with her and her infant daughter Ocheann. Wilton Smith was arrested and charged the next day. Ocheann was roughly two to three years or so at the time. Ms. Davis maintains that she did not witness the killing. She also maintains that she did not hear anything that would have alerted her to the situation. According to Ms. Davis' testimony she was giving the infant a bath and sometime after coming out into the living-room she made the grisley discovery and that Ocheann told her to call the police. This is how the testimony went:

Prosecutor: And Ocheann said she wanted her mommy ?

Ms. Davis: Yes

Prosecutor: What did you do ?

Ms. Davis: I take her to the living room and that's when I saw Patricia lying
on the floor.

Prosecutor: All right. And what happened ?

Ms. Davis: She say I must call the police because her mommy is hurt and I
went back...

Prosecutor: This is Ocheann said...

THE COURT: No, no. She said it.

Ms. Davis: Ocheann said it.

Iona Davis and Delroy Benjamin: A closer look

Iona Davis was residing with Ms. Innis at the time of the murder. She was a close friend of both Iona Davis and her husband Delroy Benjamin. Iona Davis was the God-Mother of Ms. Innis' daughter, Ocheann. God-parents are typically supposed to step in the shoes of a child's parents should death or some other unfortunate event prevent them from discharging their parenting duty. Poor Ocheann was shocked to learn recently that her God-Mother - Iona Davis resides in Toronto. Poor Ocheann was made to understand that her God-Mother had returned home to Jamaica. As fate would have it both Ocheann and Iona Davis have Facebook pages indicating they each reside in Toronto. One wonders why Iona Davis would abandon poor Ocheann following her mother's brutal murder. This makes no sense. The answer to that pressing question may be found in Wilton Smith's testimony at his trial.

Wilton Smith testified at his trial that Ms. Iona Davis killed Ms. Innis by violently striking her in the neck with a meatcleaver - almost severing her neck from her body. Mr. Smith testified that her boyfriend and now husband, Mr. Delroy Benjamin was present and threatened him that if he told anyone he would kill or harm his mother. Iona Davis does not put either Wilton Smith or Delroy Benjamin at the scene of the crime. However, Detective Bronson, the officer in charge of the investigation testified that while police were at the crime scene Delroy Benjamin called using a false name seeking to speak to the deceased. The police notes also confirm that Ms. Davis initially did not place Delroy Benjamin at the Innis apartment on the day of the murder but later acknowledged that he was there and left before she discovered the body. Ms. Innis did not inform police that Delroy Benjamin was her husband. They had children together prior to coming to Canada from their native Jamaica. Ms. Davis was on a vistor's visa which was to expire on March 31st, 1991. Mr. Benjamin's visa was either expired or close to experiation at the time. Police and or the Crown secured extensions for each of them. According to her Facebook page - Ms. Davis lives in Toronto today.

Was Delroy Benjamin
a party to the offence ?

Wilton Smith clearly implicated both Iona Davis and Delroy Benjamin in the death of Patricia Innis. However, neither Ms. Davis or Mr. Benjamin implicated Wilton Smith in the crime. I have carefully reviewed the testimony given by Mr. Benjamin at Wilton Smith's trial and I found his testimony to lack logical consistency and therefore credibility. For examample, Mr. Benjamin actually telephoned Patricia Innis' home on March 10th, 1992 while Detective Bronson and others were at the crime scene responding to Iona Davis's call regarding her grisly discovery. This on its own is not all that unusual. However, what is very unusual is that Detective Bronson answered the phone and told him that she was unable to come to the phone at this time. Detective Bronson testified that Mr. Benjamin identified himself in that call as Patrick Clarke for some reason. The prosecutor attempted to get an explanation from Mr. Benjamin for why he identified himself as Patrick Clark. His evidence was nonsensical to me. I will reproduce it below to illustrate my point.

Prosecutor: You left. What did you do when you left ?

Benjamin: Well, I walk along the way to -- back to Wallace and spend sometime
at my friend's house. Then I call Patricia.

Prosecutor: You called Patricia ?

Benjamin: Yeah

Prosecutor: What happened when you called Patricia ?

Benjamin: I don't get her. I get somebody else on the line.

Prosecutor: Male or female ?

Benjamin: Male.

Prosecutor: What did the male say ?

Benamin: He says Patricia can't come to the phone just now.

Prosecutor: Who did you say you were ?

Benjamin: I say I was -- I said I was Patrick Clarke.

Prosecutor: Patrick Clarke ?

Benjamin: Yes

Prosecutor: And why did you say you were Patrick Clarke ?

The Court: You didn't recognize it ? It wasn't Sammy, I guess, that was
answering. It was some other male, right ?

Benjamin: It was Mr. Bronson answer the phone.

Teh Court: Who answered ?

Benjamin: Mr. Bronson.

The Court: Oh, detective. Oh, all right. So it was a police officer.

Prosecutor: What time of the day - I should ask you this, Mr. Benjamin.
What time of the day was this ?

Benjamin: It was nearly 4.

Prosecutor: Nearly 4. So can you recall how this conversation went ? You rang.
You said it was Detective Bronson on the phone. You didn't know
know that at the time though ?

Benjamin: No. After I saw him, I recognize his voice, so I know it was him.

Prosecutor: Now, why did you tell him you were Patrick Clark ?

Benjamin: Well, if was at my friend or my cousin and I call, when she pick
the phone, oh, I think it's Patrick.

Prosecutor: When you call who ?

Benjamin: When I call, Patricia say, oh, I think it's Patrick. So I just
said I'm Patrick.

Prosecutor: So when you call Patricia in times past fro your cousins's ?

Benjamin: Yeah, or my friend.

Prosecutor: Or your friend, Patricia would pick up the phone and say into
the phone to you, oh, I think it's Patrick ?

Benjamin: Yes.

Prosecutor: How many times did this happen ?

Benjamin: Several.

Prosecutor: What was that all about ?

Benjamin: I don't know.

Prosecutor: Do you know why she said, oh, I think it's Patrick ?

Benjamin: Oh, she was referring to her friend.

Prosecutor: Hm - hmm.

Benjamin: She was referrring to her friend.

Prosecutor: To her friend ?

Benjamin: Yeah.

Prosecutor: So I'm not clear though why you told Det. Bronson that you
were Patrick Clarke.

Benjamin: Well, he way, Patricia can't come to the phone, so I figure
she's busy or something, so if I say I'm Patrick, you know,
that would speed her up.

Prosecutor: Oh, I see.

With the greatest of respect to the prosecutor I fail to see that Mr. Benjamin provided her with an answer to the very important question that she asked. To compound my difficulties with his evidence - it appears that Mr. Benjamin then took it upon himself to contact the police. The following passage from his testimony speaks to this point:

Prosecutor: Did you - did you eventually get in touch with the police ?

Benjamin: Yeah.

Prosecutor: When ?

Benjamin: I call the apartment two time after and I don't get nobody.
so my friend Abdul sitting next to me and I'm telling him what
happened. I said, I'm calling and I can't get nobody. He said,
you never get nobody ? I say, yeah, I call once and I get somebody
and I get police. He said, police doesn't answer people phone
unless something is wrong. So he looked up the number in the
directory and we called it.
Prosecutor: And that's how you come to...see the police ?

Benjamin: Yeah.

Prosecutor: Did you go to see them ?

Benjamin: Yeah, I did.

Analysis of Benjamin Evidence
Regarding Patrick Clarke call:

The Crown theory was that Wilton Smith lured Mr. Benjamin out of the house so that he could kill Patricia Innis. Mr. Benjamin testified that the deceased woke him up at about 9 a.m. that morning and told him that Mr. Smith was on the phone for him. Mr. Benjamin testified that Mr. Smith told him that his employer was hiring and that he ought to come in to fill in application prior to 1:30 p.m. Mr. Benjamin testified that he attended at Mr. Smith's place of work and someone named, Nick told him that they were not hiring. According to Mr. Benjamin he arrived at Mr. Smith's place of employment at roughly 1:23 p.m. He did not testify as to when he left. From there he testified that he went to his friends house and called Patricia.

If one is to accept Mr. Benjamin's version of events then one wonders why he did not ask to speak to his wife - Iona Davis when he called. He left her there with Patricia according to his version of facts. Also, one wonders why he did not ask for the identity of the person who answered the phone. This was a place where his wife was living and where he had actually slept the night before. Obviously, he knew the man was not Wilton Smith. Why the need to conceal his identity ?

On the other hand, if one accepts Wilton Smith's version of the events along with the fact that Iona Davis is said to have discovered the body and called the police - it makes perfect sense - especially when combined with the evidence that Iona Davis tried to suggest that Mr. Benajamin was not at the apartment at all - that he would call to see what was going on since he left his wife at the crime scene. It would stand to reason under this version of events that Mr. Benjamin's call was to obtain an update and to distance himself from the crime. I wasn't there. I don't know. Mr. Benjamin's contradictory evidence with respect to when he came to know the identify of the man who answered the phone is very tellling. At first he testifed in response to questions from the prosecutor that he came to learn that it was Det. Bronson who answered the phone after he met Det. Bronson that night and he heard his voice again. However, later on in the same line of questioning he says that he called a few times and got no answer and discussed this with his friend and he informed his friend that a police officer answered the phone.


Wilton Smith was arreted and charged the day following the murder. Why the rush ? What kind of investigation could be done so quickly ? Truth can be surpressed but never destroyed. Evidence and truth are not always the same thing. Evidence can be flawed or fabricated. Evidence is subject to the inherent frailties of human observation. Improper motives and the like can colour and distort evidence and surpress truth. The truth in this case may have been perverted or surpressed but in the same way that the sun rises every morning so too will the truth of what happened to poor little Ocheann's late mother rise up for all to know.

In the next issue I will outline evidence pointing to an improper motive along with other points that ought to have been investigated by police and were not.

NOTE: This piece is written for the sole purpose of shedding light on an issue of public importance. Democracy and the rule of law work best when individuals are able to exchange ideas on issues of public importance.