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.