Posts Tagged ‘justice’
‘Cops are hard on people like me and my friends‘ — Evan Maud, Nov. 13, 2012
Who is Evan Michelle Maud?
And why would he lie about Winnipeg police taking him on a so-called ‘starlight tour’ in late 2010 only to be snared in a web of embarrassing lies which police utterly ripped apart in short order thanks to GPS, surveillance cameras and other investigative means?
I can’t answer that. What I can tell you is a little more about Mr. Maud, his upbringing and background, which may help those interested come to understand a little more about the 22-year-old and his circumstances. Many people still clearly have questions.
At his last public appearance to apologize for bringing the false claims against the police, Maud didn’t take any questions.
Instead he was ushered out of the room after reading a three-minute long statement (below) which didn’t actually say, ‘I lied.’
Many hearing the statement questioned Maud’s sincerity given the ‘mea culpa’ was apparently key to the public mischief charge he was facing being dropped.
‘Restorative justice in action’ was how it was essentially sold to the public/media by Onashowewin, a Manitoba aboriginal justice agency for which I have a great respect for with respect to their work on private Gladue pre-sentencing reports often tabled in court.
Maud was also the subject of a PSR with a Gladue component — this one authored by a Manitoba Corrections officer. But it wasn’t relating to the ‘starlight tour’ hijinks. It was instead written to inform the judge who handled his January sentencing for attacking an innocent man after being punted from a party in the North End on his 21st birthday in November 2011.
(Without going off on a tangent, it appears one of the concerns about the adequacy of Corrections Gladue reports raised by the Manitoba Court of Appeal late last year has been addressed.)
The report tabled concerning Mr. Maud, compiled by a probation officer in the aptly-named Corrections Random Assault Unit — was thorough, lengthy and detailed and involved interviews with several people who’ve known him his entire life.
The bulk of what’s in it is presented below.
A life-long member and resident of the Cross Lake First Nation, Maud’s father, 59, is a community councillor and support worker who spent 15 years in residential schools as there were no other schooling options in the community in his youth.
He went on to leave the community briefly to study at university in Brandon. Cross Lake, population roughly 7,000, is a community which continues to feel the pain of the residential schools legacy.
Today, Maud’s dad says, there are few options for folks to make a way for themselves.
“There are widespread issues of drug and alcohol abuse, domestic violence, suicide, vandalism and other types of crime,” he told the PO.
Hailing from Skownan First Nation north of Winnipeg, the 51-year-old has lived away from her home community for most of her life, returning frequently there to visit relatives.
“(Her) family comes from a long line of very traditional people who have continued to practice indigenous styles of healthy living, sustenance, spirituality and preservation of their heritage and language.”
Like Cross Lake, however, the shadow of Rez schools has led the community and its people down the sad path of years of poverty, drug and booze issues, domestic violence, suicide and a lack of community services, the report says.
In 1996 — an unspecified standoff left the community “torn apart” and left a trail of family breakdowns and migration away for security and safety reasons.
“Homes were looted and burned to the ground and many people never returned.”
Since then, Skownan has rebuilt and a sense of habitat returned. A gaming centre has brought jobs and a construction company and business centre have become local sources of pride, the report suggests.
Maud’s early years through his troubled teens:
Born in Thompson to his parents, the couple’s relationship didn’t last and they lived apart during their brief time together. Although Maud’s mom was his primary caregiver, he did spend time with his father over the years and the two have grown close.
He has a half-sister and three half-brothers. Maud as a child, according to his dad, was “very independent, curious and quiet.”
“(Dad) also noted that his son clearly understood the difference between right and wrong and would spend a great deal of time asking questions and trying to figure things out on his own.”
Curiously, Maud was made to feel unwelcome by Cross Lake band members.
His mom says Maud was a “difficult son to manage.”
“She indicated she felt he acted up on purpose to get attention.”
In an emotional interview with the probation officer/report writer, Maud’s mom described her parenting skills as wanting and that she did to her kids “what was done to me.”
In his youth, Maud suffered through an abusive relationship his mom undertook and was made victim of physical and sexual abuse, the report says. Mom describes his upbringing as a “rough childhood.”
“She worried about her son as her was very accident prone, acting out first, suffering through consequences after and he experienced numerous injuries as a child.”
Mom was a rover, taking Maud and his step-sister from home to home and school to school across three provinces in his youth. As of late 2012, she has been 25 years sober.
A cousin who now lives in Toronto recalled how Maud “was a curious child, very sociable, outgoing, liked to make up stories and was always asking questions.”
The sister dubbed Maud “the million question kid,” saying he was curious, liked reading and “asked too many questions.”
“She believed her brother began to get into trouble after she left home, was influenced by other teenagers and got caught up in marijuana and alcohol.”
He was no stranger to bullying — brought about because he wore his hair long.
By 13, Maud was experimenting with weed and mushrooms. By 15, he was drinking. At 16 he fell into the clutches of an unnamed gang but fought his way out of it the following year.
By Grade 9, Maud was suspended from school — but returned in 2011 to get his GED. In this time, he was living with the cousin, who says he fell into a bad crowd who “pressured him into drinking or took advantage of his good nature.”
“She indicated she believes (Maud) has never really experienced stability in his life, lacked parental support and guidance.”
Today, Maud avoids people from his past, the report noted him as saying. He keeps counsel with one close friend who has no criminal background.
“(Maud) indicated he could not open up to new people easily, and did not like to discuss his past, so making positive friends was difficult.”
He prefers the company of his sister and a girlfriend who describes him as “calm” but worries about his habit of “internalizing everything.”
The girlfriend says he worries about having no job. Maud successfully completed a welding certificate course and had been actively seeking work at the time.
“She commented the subject is trying to make positive changes, find employment and goes for long walks when he is feeling down and needs to clear his head.”
Drinking, she says, is forbidden in her home.
MAUD, in his own (slightly mediated) words:
Calm and quiet in his interview with the PO, Maud says the assault he inflicted on the landlord in Nov. 2011 was “all a blur” because he was so drunk at the time. This admission caused the officer to note he seemed to be “deflecting” the blame for what happened.
“(He) went on to say he believes others judge him unfairly based on his actions, make it sound like he is a bad person for something he doesn’t remember and do not know the real person he believes himself to be … (saying) “Cops are hard on people like me and my friends.”
While he was clear he didn’t want to go to jail, Maud indicated he would do whatever the court wished of him.
He’s never been diagnosed with any mental illness or antisocial disorder.
“He indicated he has low motivation and stays at home so much it feels like a dungeon.”
Of concern to the PO was how Maud displayed no apparent empathy or remorse for the man he attacked.
The officer ranked Maud — using a standardized case-management risk assessment tool — as a high risk to reoffend but concluded he was a suitable candidate for community supervision.
Maud didn’t take questions after issuing his apology to the police and public for the ‘starlight tour’ allegations — delivered through the media who turned up to hear it.
Instead, he was quickly shuffled out of the room and we’ve heard nothing from him since.
I haven’t checked if the public mischief charge he faced as a result of his actions was in fact, dropped as was claimed it would be.
The silence left after the apology been a void simply filled with more questions, all asking, really, the same thing: Why did he do it?
I can’t answer that. Maybe Mr. Maud can’t either.
Maybe it would be unlike the “million question kid’ to have it any other way.
Maud’s Apology in full:
I’m sorry for jeopardizing the reputation of the Winnipeg Police Service. I want to say sorry to the police officers and putting them in that situation. I’m also deeply sorry to their families, friends and colleagues for causing them to doubt, mistrust and question the two police officers. And I am so sorry for that. I understand that would not have happened if I didn’t say the things that I said. I feel bad for what I put them through.
At the time, it was hard. I felt overwhelmed when the TV crews and community took it to a whole new level. Next thing you know, it was all over the place, reporters from different media sources were questioning me. I was scared. I never wanted this to happen. During this time all I wanted was to live my life normally and go to school. It was the worst two years of my life.
I felt bad that my mom moved all the way from the next province to come support me. I put my mom in a situation where she thought she didn’t raise me right. I just made a mistake. I try my best to apologize to everyone that I may have harmed.
I also want to acknowledge the Assembly of Manitoba Chiefs for taking the time to help me. I didn’t mean to put my people through this.
I don’t want this to impact anyone from submitting legitimate complaints in the future. I want people to understand that I did not intend for this to happen. I was taught that forgiveness is a part of healing and I need this to move on in life in a positive way. In many ways, I learned how to have respect, how to be truthful and honest. I am part of a youth community, and I want them to think of me as a role model.
I want to encourage youth to tell everything that they know is right. I was able to move forward and graduate school and am now doing good things for myself. In closing, I want to say sorry and thank you for listening.
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Sec. 7 — The Charter of Rights and Freedoms.
For more than 22 years, Richard Scott has headed up Manitoba’s third branch of government in his role of Chief Justice of our Court of Appeal. Effectively, he’s been the highest legal authority in the province. No small task.
But in less than a fortnight, he’ll close his office door a final time and walk away from the Law Courts Complex, having reached the age of mandatory retirement.
Scott’s final appeal sitting was Friday, when his achievements were recognized on the record through an at-times touching “swearing out” session by his appeal court colleagues.
“Manitobans and the justice system have been more than well-served by you, chief,” the court’s second longest-serving justice, Michel Monnin, wrote in a letter read out by Justice Freda Steel.
Monnin noted how when Scott was appointed directly to the chief’s chair in 1990, he inherited a court which was “struggling” but transformed it into a “credible, respected and collegial bench.”
“You have been able to achieve this because of who you are and how you function and deal with people,” wrote Monnin. “You brought to this court a sense of civility which had been lacking and then in due course brought respect from the bar and litigants.”
The in-court ceremony followed a weekend gala in Scott’s honour held on Feb. 8-9.
Among the many guests in attendance were Supreme Court Justices Rosalie Abella and Beverley McLachlin.
It’s pretty evident the Canadian legal community has a great respect for Justice Scott.
But also, his contributions to Manitoba outside the courtroom over the years can’t be ignored. [More detail here]
Put simply: in his decades as a lawyer and judge at the Court of Queen’s Bench and COA levels, he’s sat on many community boards (Heart and Stroke Foundation and Winnipeg Foundation are but two), The Canadian Judicial Council and has taken on roles as a legal educator, locally and internationally.
He says his community service will continue on in his retirement.
On top of all this, Scott is also a family man, being husband to an equally-respected wife and three daughters.
As a guiding rule, Canadian judges speak to society through their decisions.
In Scott’s case, he’s spoken out to the public about 1,600 times through published decisions over the years.
Canadian judges are seldom public figures in terms of media exposure. Mr. Scott has been no exception to this.
However, in the days prior to his retirement as Chief Justice, he opened up his office to a handful of media outlets and reporters. (Articles here and here).
While my own 35 minutes with him covered similar, but not identical ground, I present here most of the verbatim Q and A transcript of our meeting for the record.
Q: Because of the mandatory retirement age (age 75 for federally-appointed judges), do you feel you’re being sent away too early?
Scott: As a matter of fact — and this answer surprises some of my colleagues, I don’t. Do you know the history of the mandatory retirement?
Q: Fill me in.
Scott: Diefenbaker, of course, was Prime Minister from ’57 to ’62. He was probably one of the best trial lawyers, ever, especially before juries. But he didn’t do so good in the court of appeal. And in those days, there was no mandatory retirement and judges, particularly appellate judges, died with their boots on. So, when he became prime minister, he thought it was a good idea to have mandatory retirement for judges. But he picked an age — and remember, life expectancy is probably two or three years greater now than it was then — leaving a lot of elbow room, picked a very high age if I can put it that way, 75. And it got adopted, and it was the last amendment to the old BNA (British North America) Act. And I think on balance it’s not a bad thing.
Fifty years, 100 years ago when you retired from the bench, that was it. You were gone, you retired, you sort of disappeared off into the sunset. Now, it’s different … Some judges are going back to law offices, some judges are involved in communities and community work, some do arbitration work. Martin Freedman, my colleague up until about six months ago is now doing arbitration work. So there are things that people, like Martin, like Charles Huband, who want to stay involved can do which takes advantage of their experience as judges. So, you know, 75 I think, is about right.
Q: In your time as CJ — what are some of the public misapprehensions about the court system you must have noticed over the years?
Scott: I think there are two public misapprehensions that come immediately to mind. The first is, and I don’t think this is as much a problem now as it was maybe a decade ago – there’s some people who think we’re unaccountable. We’re not elected, we’re appointed, we’re not accountable to the people. And of course nothing could be further from the truth.
We do our work in public. Our decisions are public, we’re subject to appeal review. we have a discipline and judicial conduct process. So we are accountable in a very real way. That’s one misapprehension I say I think it’s lessened a bit.
And the other has to do with the public’s view about sentencing in criminal cases. This seems to be the hot-button spot for the public and certain elements of the media. And to me, there’s an interesting contradiction. Whenever, for example, in appellate court — we get a very steady diet of sentence appeals. Some by the Crown, but the Crown’s right to appeal is very limited. So a lot by the defence. And when in our judgement, (we) reduce a sentence or in some instances deny the Crown’s application for an appeal, a lot — no, not a lot — some people take a very negative view: ‘we ought to be tough on crime.’
But the interesting thing is, and I’ve had the opportunity with friends and acquaintances and doing some public speaking engagement to put a scenario to people. I can go into it if you like — taking someone who’s a young person, an adult, but a young adult involved in a serious offence, good background, strong consistent professional advice that this was an aberration, that the person is rehabilitatable — that with proper guidance, the odds are very strong that this person will never be involved in a serious crime again. And when you put it to people in these particular circumstances: ‘do you think that the emphasis should be on deterrent, should be on punishment or should we be looking at rehabilitation? Should we be looking for a balance between rehabilitation and deterrence?’
And virtually without exception, they will say, ‘No, what the court should do is try and strike the right balance.’ I mean, punishment and deterrence are definitely are factors but nonetheless, you want to do something to ensure that this young person doesn’t offend again, and indeed give the young person an opportunity to become useful member of society.
So, sort of, globally many people seem to get upset when the news media reports that we’ve reduced a sentence for example, but when you tunnel into the facts, my sense is that there’s a lot of support out there. And of course, any criminologist that you talk to will say in scenarios like the hypothetical that I just discussed, that anything we can do to rehabilitate the person, keep the person away from the criminal justice system in the future is to the good. So, you have that sort of conflict between the global view and the specific view when you put the actual facts of a case — or a hypothetical case — to members of the public. I think the public have a better understanding of the difficulties and the nuances in criminal sentencing on many occasions than the media do.
Q: That provides a segue into one of the main reasons I wanted to talk to you. Because you’ve been in your role for so many years, you would have been through the Aboriginal Justice Inquiry, you would have seen the outcomes of that. But, in recent years, I’ve had a challenge professionally, and that is trying to explain Gladue and Ipeelee to the public in a way that makes sense to them. Because I think from a legal point of view, you can understand it, but there seems to be a bit of a disconnect and I’m hoping you could take me through your perception of it as it’s been applied or misapplied through the years.
Scott: For the next two weeks, I’m still a sitting judge, so I have to be little cautious but – and if you want a break I’ll get the section in the Code. I think it’s in Section 718 … it’s in the Code [718.2(e)] that specifically says if a person is of aboriginal descent, is a factor to be taken into account, when it’s relevant in a particular sentencing process.
And what the Supreme Court has said, and James, I’m trying to put this in neutral terms — what the Supreme Court has said in Gladue and reemphasized in very strong terms in Ipeelee is: That the court has to be informed, first of all, that the person is an aboriginal person because, as you know, you’ve been around here for a while — that’s not always evident when you’re looking to the person, talking to the person – if it’s a Metis person.
And secondly … what relationship (their aboriginal heritage) had to that offence. Let me give you two hypotheticals. You have an aboriginal person who has grown up and raised in the city, yes, as virtually all aboriginal persons do who are city dwellers, they have a connection with their roots, with their community but they’re a Winnipegger, they’re an urban person and they’re involved in a serious crime. The relationship between their aboriginal background and the crime isn’t – may not be terribly significant. So it may not be as significant a factor it is for someone who grew up in poverty on a reserve and is involved in an offence where the person’s economic disadvantage is a factor in the offence. Shoplifting, even a robbery of a convenience store because they’re desperate, because they’re impoverished, because they have no source of income. And in those circumstances, their aboriginal background is something that the court needs to take into account.
Where it plays out in the balance is up to the individual judge. And sentencing is an art, not a science. And the Supreme Court has emphasized now for some years that as long as the judge adverts to the correct legal principles — and we’re talking about a legal principle now — appellate courts cut some slack to the judge. You know the judge has some elbow room as long as a sentence is in an acceptable range. So it’s something the court needs to be told about. The onus really, is on the lawyers, and that’s one of the things — messages we’ve particularly got from Ipeelee — is we, we courts, we judges have to be more vigilant in making sure that we have this information. So we know what the facts are, we know about the person’s aboriginal background, its impact, its influence on where they are today so that can be taken into account.
What all of this does not mean is that there’s an aboriginal discount. The fact that a person is aboriginal, period, end stop – that simple fact does not influence an offence – sentence at all. It’s what influence the fact that the person … is an aboriginal has had on their life and their background and their life experiences before the offence and it may well have led up to the offence that we take into account. Now that’s a very long-winded explanation. I appreciate that. Because it’s still a complex area, it’s still an area where the law is developing and the law develops incrementally. So we’re feeling our way through this. And the way the common law develops — there will be other cases, there will be another be another Ipeelee five, ten years out where the Supreme Court and the court before that — one or more intermediate appellate courts — will have the opportunity to fine-tune the concepts. So it’s a work in progress.
Q: I just wanted to gauge your response to a recent decision from your court. And a line in it that speaks to Gladue and the court cutting down on a sentence. Because you’ve been such a community involved person and the Chief Judge at the same time — Justice monnin in November wrote that: ‘presently in the province there is either a concerning disregard or systemic impossibility to provide what is required for judges to comply with the dictates of the Supreme Court’ and he’s talking about Ipeelee and Gladue. (Here’s the background)
Scott: James, I’m not going to comment on something one of my collegues wrote. That’s just a no-no for any judge to comment on one of my own decisions, never mind — let me just say I think he’s talking about what I just talked about. Which is — the courts need more information if we’re going to apply Gladue and Ipeelee in accordance with the mandate we now have first of all from the Criminal Code and secondly from Gladue and Ipeelee.
The courts need more information. Without — I want to be very clear — without commenting on my colleague’s statement, I have no doubt that’s what he was talking about.
Q: In the end, in the time you’ve been in your position, do you think our society has become more just, fair … are we a better society today than we were in 1990, or ’85?
Scott: Well, if one did nothing but read the media, one would would say, conclude the answer is ‘no.’ Curiously perhaps, after all these years, I’ve become a little bit of an optimist on human nature and about society. And I think most people are decent, law-abiding citizens who want to do the right thing. Crimes are committed — and we’ve basically been concentrating on criminal law — crimes are committed in a number of circumstances — and I’m thinking of a number of things like dangerous driving, the Criminal Code driving offences — by people who are not criminals in the traditional sense of the word and the perfect illustration of this is that: While the public can be forgiven in thinking we live in an increasingly violent society — the statistics tell us otherwise. Statistics have increasingly — and now in the ‘States, too – consistently reported that incidents of violent crime are slowly, but steadily, diminishing. So I think that’s some support for the view I have. But my own sense is society is not more violent, a more dangerous place to live than it was before.
But, thanks to instant media and the internet and all the rest of it — if a terrible crime takes place in New Brunswick, people in Manitoba are made aware of it hours later. Fifty years ago, we probably wouldn’t have been aware of it and if so it would have been on page 26 of the … newspaper. So yes, I think there’s a greater awareness of these issues, but I don’t think that our society is any less kind than it was 50 years ago.
Q: When you close your office door for the last time, what’s the case you’re going to remember the most?
Scott: Well, there’s two. One was Lavallee (see below) where I was the (QB) trial judge who instructed that the jury on what’s now known as the battered woman defence which was — I was reversed by the Court of Appeal and the Supreme Court agreed with the contents of the charge to the jury and therefore, in turn, reversed the Court of Appeal.
And the other one is the Metis land claim (again, see below), and I can say no more about it. It’s an unbelievably difficult case. I wrote the judgement for the court. It was a year and half of absolutely intense work and the Supreme Court – it’s by far and wide now the longest reserve (decision) the Supreme Court’s had for a long time. It was argued … a little over of 14 months ago — so they’re having a great deal of difficulty with it as well. We’ll see what they do. It’s a very difficult area with some new legal concepts in play and – first of all, I don’t have a clue what they’re going to do, and if I did, I wouldn’t be able to comment on it anyways. But in terms of the intensity of the issues and the work we all put into it — that stands out in my mind.
Q: Is there a legal concept that’s emerged in the last 20 years that’s had a really fundamental effect on the justice system as a whole?
Scott: I would say it’s the jurisprudence that’s come out of Sec. 7 of the Charter. I was appointed in ’85 (to the CoQB). In ’85, the Supreme Court — in ’84 it was Hunter and Southam — that was the first great Supreme Court dealing with Sec. 8, the right to be free from unreasonable search and seizure.
But Sec. 7, which is the right to life, security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice — those who were involved in the gestation and birth of the Charter assumed that that would be a procedural protection — only dealt with process — it didn’t deal with substantive law. The Supreme Court … wrote the decision, said ‘No. This is — deals with substantive law, not just procedural.’ And it is the foundation for so much of the criminal jurisprudence that we now have developed under the Charter. It’s really the building block — yes there are other specific sections, but it’s the common road for virtually all the Charter jurisprudence that’s developed. It was given such a broad remedial interpretation by the court. So that’s, that’s the decision that really set us off on the journey that we’re now only part way through.
Because, the Americans have had 250 odd years to do judicial review and interpretation of their Bill of Rights and we’re still only just over 30. I think we’ve come a long way, but there’s still a lot to do.
Q: Is it a journey that in your mind, has a positive conclusion?
Scott: Yes. Yes I do. I think not withstanding the angst on the part of some people, the Charter has been a very good thing for the country, it’s given people knowledge, really, confirmation of the role that the courts play and I think that’s all to the good.
Q: Are you happy with your work, at the end of the day?
Scott: Happy is, yeah. I feel that I’ve made a contribution to the judiciary and through the judiciary to the community that we serve. And I leave with a sense of accomplishment but at the same time with the sense that there’s still a lot more to be done, particularly with respect to the going concern about access to justice, costs and delay — which is an issue now that’s to the forefront, for example, of the work of the Canadian Judicial Council. There’s a lot of work going on there now and that’s something I’d like to be a part of. But unfortunately, (time flies), in two weeks I’ll be doing something else.
Q: It strikes me that there’s just so much need for the system. On behalf of the public — to solve disputes, to deal with whatever might be …
Q: Any idea why that is?
Scott: Some people would say we’ve become a more litigious society. And we look to the south of the 49th Parallel — and sort of the knee-jerk reaction in many instances seems to be … to run off to your lawyer. There’s a little bit of that, but I think it’s just the society we live in. It’s so complex and it’s bewildering to a lot go pretty intelligent, educated people, not just the society at large, who really need help to understand what their rights are in the sense of ‘what are my options?,’ ‘what are the things that I can do as a result of this situation?’ In the last decade — and now we’re going over to the civil sphere — I don’t think the litigation numbers are up that much …
But I don’t think we’re actually going to court more, it’s that people need legal advice. And that’s just the world we live in.
Q: Is it a situation where the end goal is where you don’t want to see any of that happening? We talk about ‘eradicating crime’ … does the fact that system exists — is that a problem in the first place?
Scott: I would say it’s the solution, not the problem. If you go back 1,000 years, judges were invented as a way to keep people from killing each other when they have a dispute. I put that pretty crudely, but that’s what history tells us. So we’re here to resolve disputes: criminal, civil and family in a fair and impartial way. And as you know — it’s recognized we are a branch of government — the third branch of government — and we’re here as part of the democratic structure. And the need for judges today is as great as it’s ever been. In part, just by being there, people know that if there are disputes that can’t be resolved, there’s this group of women and men called judges who are there to resolve disputes and to try as best as human beings can to be fair and impartial.
And so, I think the importance of the judiciary today — it’s as important as it’s ever been, and as critical to society as it’s ever been.
At the end of Friday’s “swearing out,” The first thing Scott noted for the record was how he’s been a judge for 27.5 years.
The second was to acknowledge what a judicial career actually is: a career as a public servant.
“It has been an honour and a privilege to serve the public,” he told those present.
Manitobans have been lucky to have him at the helm.
‘Pragmatic, Common-sense and forward-thinking:’ *
A sampling of major Scott decisions over the years:
R v. Lavallee, ‘battered woman defence’ At: http://canlii.ca/en/ca/scc/doc/1990/1990canlii95/1990canlii95.html (his original Court of Queen’s Bench trial decision unavailable online)
Gillespie v. Attorney General of MB, ‘Inherent Jurisdiction’ (Scott, dissenting) At: http://canlii.ca/en/mb/mbca/doc/2000/2000canlii26952/2000canlii26952.html
R v. Higgins, ‘Breath demand by police’ AT: http://canlii.org/en/mb/mbca/doc/1994/1994canlii6405/1994canlii6405.html
Manitoba Metis Federation V. Canada and Manitoba: AT: http://canlii.ca/en/mb/mbca/doc/2010/2010mbca71/2010mbca71.html
Winnipeg Livestock Sales Ltd, ‘restrictive covenants’ AT http://canlii.org/en/mb/mbca/doc/2000/2000mbca60/2000mbca60.html
Tyrone Enterprises v. O’Brien, ‘impecunious plaintiffs’ AT: http://canlii.org/en/mb/mbca/doc/2012/2012mbca3/2012mbca3.html
[* How Justice Steel described Scott's approach to his job; many of the decisions cited by her as being fundamental ones of his.]
The last couple of days of testimony have delved into and exposed — to some decent degree — the fact CFS workers never searched out Karl Wesley McKay’s background or did a “prior contact check” in the CFS database. Nor, it must be said — did CFS even ask for his full name when they discovered he was staying with Samantha Kematch and Phoenix in July 2004.
Here’s how it was put by former Winnipeg CFS intake supervisor Carolyn Parsons today of what happened when McKay’s name surfaced for the second time in 2004 on Dec. 1.
“I think if in this time we had been able to determine Mr. McKay’s history — that certainly would have changed everything and I think that’s something that every person who’s been involved with this situation wishes had happened.”
At that time, they entered the name they had in the CFSIS database and gave it a Jan. 1, 1980 date of birth — a typical practice when a person’s actual birthdate couldn’t be located.
Today, inquiry staff released an exhibit from the province as to what CFS workers would have found if they had been able to track his name in the system. It’s apparent there was confusion — and the issue exposes what was an apparent limitation of the computer system at the time.
Sometimes the first name McKay used was Carl, other times Wesley, sometimes Wesley Carl, Wes and finally, Karl. Seems the only time in 2004 his real name appeared was on May 28, 2004 after he marched into a welfare office and tried to claim Phoenix on his budget.
Sadly, his name wouldn’t be conclusively linked to Kematch’s case in the CFS database until March 15, 2006 — five days after RCMP announced Phoenix’s death had been uncovered and McKay and Kematch arrested. I note with interest that RCMP at the time spelled his first name as “Carl.”
It was also around the very day RCMP laid first-degree murder charges against the despicable pair for the murder of Phoenix through abuse and confinement in a cold basement.
If CFS had dug into his background in 2004, they would have found him referenced in eight separate files dating back from March 1996 to fall 2000 when his partner’s two kids (one of them was his) were made permanent wards of CFS.
Here’s a just few lowlights of the disclosed files — and this is certainly not exhaustive:
- April 1998: CFS informed McKay had (again) beaten up on his partner at the time, breaking her nose. Investigators felt neither he nor she had “any insight into the impact this was having on the two children and the potential risk to them … Probation services later advised of the severity of the assaults on ** by Carl McKay. These included him having taken the supporting leg off the bathroom sink and beating her with it.”
- June 1998: One of the kids is found wearing only a diaper and a sweatshirt on the corner of William Avenue and Isabel Street in the company of a drunk male. “She was immediately apprehended,” the agency said.
- Sept. 25 2008: “Wesley left a phone message stating (his partner) was an alcoholic and had problems. Wesley sounded as though he was intoxicated. He appeared to be very vindictive and left the message out of revenge.”
- Early 1999: McKay fails to follow through in family violence programming and a “better fathering group” … “he failed to internalize his violent offending behaviour and had persisted in denying and/or minimizing the problem. It was apparent to probation services that Carl was only complying with the order minimally because he felt forced to do so.”
- February 1999: His then partner heads to a shelter but is stays only a few days before going back to McKay. “It was her contention that the reasons she reconciled with him was that she had nowhere else to go.”
- March 1999: “Report comes in through CFS that … (she) had been assaulted by Carl McKay.”
- 1999: McKay is described as being “uncooperative” the agency.
Under a section called “identified problems,” a worker in September 2000 — the same month Kematch regained custody of Phoenix — wrote: “Carl Wesley McKay poses a threat to the children both directly and indirectly in terms of his propensity for violence,” and that he has little or “any insight into the impact … lifestyles have had on the two children. “
Under ‘interventions,’ the worker says both McKay and his then-partner were “directed to participate in programming to address addictions issues, domestic violence, anger management, issues of victimization only to be met with failure.”
“My own contact with Mr. McKay has been non-existent in spite of several attempts. On several occasions I attended to his residence at (redacted) in order to serve him with court documents but without any success. In co-operation with probation services. I attended to the Law Courts building on the date of one of his court appearances for Breach of Probation. However he failed to appear in court.”
In June 2000, a worker wrote McKay was “identified by probation services as an extremely high offender re: domestic assault”
Like I said above, this was not exhaustive of what the files contain. But it spells out a little further what a risk McKay was.
McKay on the record in 2003, but not on CFS radar
That said — It hasn’t been mentioned yet that McKay’s name actually surfaced much earlier than 2004 — a year earlier in fact, and still no one appeared to ask who he was.
Note the date: This was right after Phoenix was taken into care a second time and Kematch suddenly surfaced after nearly two years expressing an interest in parenting her.
Most importantly: Note how McKay’s name is spelled . Odd, isn’t it? Odd because that’s the correct spelling.
Now: here’s what the worker present — Laura Forrest had to say in her testimony about McKay’s appearance in court that day:
“I asked her the name and she gave me the name and I believe a date of birth,” Laura Forrest said. It’s in my addendum, she said.
Here’s the relevant section of that addendum:
“Worker learned that Samantha has been in a relationship with (redacted) DUB- October 12, 1974 – for two years. has met Phoenix and has some knowledge about the situation, but Samantha did not feel comfortable discussing all the issues in front of him. (redacted) companied Samantha to court.”
It’s Karl McKay’s name on the court transcript.
But his actual birthdate is March 28, 1962, not October ’74. Was it him? Or just another of Kematch’s lies to CFS?
Note how Forrest phrased this in her testimony: “I asked her his name and she gave me the name and I believe a date of birth.”
One thing’s apparent: It’s too bad questions weren’t posed directly to McKay himself.
Just for the heck of it, here’s a letter Probation Services wrote to CFS in 1999 about McKay.
“One of the great mistakes is to judge policies and programs by their intentions rather than their results.” — Milton Friedman
A few weeks back, prior to the resumption of testimony in the Phoenix Sinclair inquiry, the University of Manitoba’s law school held a morning-long public session on public inquiries and their genesis, largely looking at the Sophonow inquiry held many years ago.
Among the four speakers was former deputy Attorney General Bruce MacFarlane.
As I’ve been pondering the inquiry at length, an off-hand comment MacFarlane made keeps coming back to me.
The thing about public inquiries when you’re in government, MacFarlane said, is you never know what you’re going to get.
His words resonate today, because in the drab downtown Winnipeg convention room where Ted Hughes presides over the increasingly contentious and costly proceedings into the role CFS played in Phoenix’s life up until shortly before her 2005 murder, we’re hearing things which, seen in the right light, could shake our Manitoba reality to its core.
And that may not be a bad thing — in fact, this examination of an exceedingly secretive system might ultimately be just what the ER doctor ordered.
But I suspect confronting what needs to be confronted will be anything but easy.
Let’s start with a fairly well-accepted premise about political power and its legitimacy: A government and the systems it uses to exercise its power (policing, taxation and, yes, child-protection for example) are essentially rendered toothless and ineffective if the citizens those systems serve don’t ‘buy into’ them and accept their actions as proper, justifiable and fair.
(To put it more concretely, even the most garden variety city cop reporter will tell you the ‘f**k the police, f**k the courts’ sentiment in Manitoba is not only prevalent but has grown considerably in the last 20 years. Disrespect for police authority and the justice system is high.)
So, let’s recap just a few salient truths we’ve heard so far about Phoenix and her circumstances, and some of the circumstances of CFS from 2000-2004.
- Mom and dad, both young and disadvantaged, were each products of the CFS system.
- Phoenix was taken into the custody of CFS same child-welfare system at birth.
- Dad was considered a “passive resistant” CFS client who wanted to raise Phoenix himself in order to spare her his own childhood experiences of the system.
- When dad was offered CFS services in a time of heavy grief, he rejected them for ones he could access from and in his own community.
- The CFS system set rules and goals (case plans) for her parents to reclaim Phoenix, but didn’t follow them to the letter.
- CFS committed itself to following up with the family, but couldn’t seem to do it in a uniform or consistent manner.
- There was confusion of whether the CFS client was Phoenix, her mom, her dad, both or all three at the same time.
- The family lived in a severely challenged community where the need for CFS services was always stretched thin.
- The personal ‘values’ workers brought to cases directly influenced important aspects of it, including assessments of risk children faced.
- Any actions taken by the CFS system’s actors (largely based on presenting circumstances) were hemmed in by legislation requiring that families and kids were to be dealt with in the “least intrusive” manner possible.
- CFS agents — namely social workers — were rebuffed, misdirected or outright lied to in many of their efforts to look out for Phoenix when she was not in care (though at the same time, CFS appeared to do little to verify much of the information it was receiving.)
We could take apart and debate and analyze each and every one of the above.
But for today, anyways, lets just start by looking at the concept of ‘values.’
Why did Rohan Stephenson lie to CFS? Because, he says, from his value system he believed he was doing the right thing for Phoenix.
Consider his clearly stated perspective from his past brushes with the system:
“I was coming from a marginalized group of society: low income, partying lifestyle, general distrust of police and the establishment. … “I had no positive experience with police in my youth certainly, or with CFS. I had only known CFS taking children away. Not fixing families only breaking them.”
Also consider another example, the mistrust and resistance to the agency implied in Steve Sinclair’s statement to social worker Laura Forrest after she came knocking on his door in early 2003. He refused to tell her where Phoenix was.
“Then she would have went down there and got up all in their face. I knew she was safe. That’s all that mattered to me. They would have made a different judgment call in their eyes, right?”
“We’ll see about that,” was Sinclair’s resistant reply to Forrest when she told him she’d return and had to see the little girl.
What the above directly implies is the values and work the CFS system performs clashed with those of its clients. Not all of them, for sure, but likely many.
Also interesting is how in Stephenson’s case, CFS and police are linked as being similar entities — as illegitimate actors of the state whose interference is perceived as an intrusive threat and not a benefit, based on past experiences.
But the quandary is very clear: What is CFS to do if the heart of its work — the children and families it’s mandated to serve — don’t believe in what you’re doing and don’t support your right to do it?
How does the system, looking forward, get past the entrenched ‘us versus them’ mentality? Was this also a goal of the devolution process?
It’s a fundamental, if not foundational question. One Hughes will have to investigate if he’s going to recommend realistic ways to better protect children.
In Phoenix’s lifetime anyways, CFS clearly appeared to be a mess.
And today, we’re told the need for CFS has grown, not abated.
The government — where the buck ultimately stops regardless of the bureaucratic CFS authorities system it uses to deflect that reality — has and will likely continue to throw millions of dollars, discretion-regulating technology and staffers at the system.
That ‘solution’ will continue, I suspect, until the point we’re willing to do what may seem impossible: Confront our issues and prejudices, settle long-standing scores we have with each other and move past them already. Find a better way.
But to reiterate where we started off: We don’t know what we’re gonna get.
The death of any child, no matter the circumstances is horrible, and to see one murdered, simply unspeakable and intolerable. We can all agree to that.
From that baseline, we have our work cut out for us.
That’s clear, and will become even more so in the hard days ahead.
The stage was set. The media turned up in droves.
And for once, today there appeared to be more than a single public observer taking in what’s likely to become the most expensive (and I’d contend, expansive) public examination of a huge and hush-hush government department in Manitoba history.
Despite the anticipation, Steve Sinclair’s testimony at the inquiry into the role Child and Family Services played in his daughter’s short life didn’t inch us any closer to discovering anything truly on point.
Let me be clear: As previously stated, I have lot of respect for Mr. Sinclair. I feel horribly for him and his loss(es).
The grief he must deal with I can’t pretend to imagine. And I would never, ever, begrudge him a venue to say what’s on his mind as it relates to Phoenix. Ever.
“I appreciate the chance to speak,” he told Commissioner Hughes after being dismissed from the witness stand.
I have no doubt he did. And, for the record, I’m glad he did.
But I’m wracking my brain to figure how what Sinclair told us fits into the picture the first phase of this inquiry is supposed to be painting.
That is: to help us unravel the actions and inactions of CFS as they related to Phoenix before she wound up back in her mother’s care, and somehow wound up lonely, abused and murdered on a tiny Manitoba reserve.
It was interesting to note Sinclair’s observations about Samantha Kematch, how she didn’t want to talk about her first-born son and he didn’t want to pry. It was heartbreaking to hear his recollections of Phoenix as he visited with her in a CFS office as a baby and what she was like in his home at age three. It was concerning to see the effect his second daughter’s death clearly had on him.
I did find it extremely important Sinclair discussed what happened and his apparent confusion when he agreed to let Kematch take Phoenix for a few hours only to never see her again, and to also get a little more clarification on how Phoenix wound up at HSC with a foreign object in her nose in early 2003.
And it was also interesting to hear from Sinclair’s own lips the underpinnings of why CFS concluded he was a “passive resistant” client.
But again, such things appeared to me to be ‘story’ when it’s ‘process’ we’re jousting with: the ‘story’ of a gigantic government child-protection system and how it operates.
Sinclair’s first-person version of events and clarifications of circumstances weren’t written up in any CFS report we’ve seen yet — a report to be used as information by which agency decisions were made during his daughter’s lifetime.
We should be focusing here on the systemic problems with Manitoba child-welfare and ‘process’ as they related to Phoenix’s case at the time, looking at the internal decisions CFS agents made based on the information CFS gathered.
As far as I can see today, Sinclair’s testimony — at this stage of the inquiry — didn’t help us answer or put into any much greater context the serious questions which have surfaced.
A scant few of those questions, simply rattled off from the top of my head, might include:
- Why did Winnipeg CFS allow Kematch and Sinclair to have Phoenix back prior to her completing a psychological assessment/evaluation deemed vital at the time Phoenix was born?
- Is it enough for a social worker and her supervisor to say because a child — one who had once been in CFS care — has been seen quickly by an ER doctor, that that constitutes in any way a safety assessment as to what risk she may be in?
- Why was Sinclair allowed by CFS to unconditionally reclaim Phoenix seven weeks before her court-sanctioned period in custody (it was the shortest order the law allowed) ended? Allowed to take her back despite he took no programming to deal with the drinking issue that was deemed so risky for Phoenix she needed to be brought into care?
- When, in early 2004, it appeared Sinclair (described by CFS as her ‘primary caregiver’) was totally AWOL and Kematch was mysteriously caring for Phoenix at times, was the little girl allowed to live at her godparents without any long-term state-sanctioned plan for her care and well-being? And no legal guardianship order being in effect?
- Why was one worker’s comprehensive risk assessment of the family’s case simply tossed out by another worker to start “fresh?”
- Where are all the supervisory notes?
What we’re trying to answer here, I thought, was, how did the provincial child-welfare system — not her dad — fail Phoenix?
I don’t recall Sinclair being asked many questions about what he’d have liked to see CFS do in his case, what solutions he might have as a person involved in a system he likely loathes. In fact, I can’t say I heard many tough questions asked of him at all.
His evidence may have been more helpful in the inquiry’s upcoming third phase, which will look broadly at societal conditions such as poverty; how they may have factored into Phoenix’s death.
Maybe I’m just not seeing it — but I don’t see how Sinclair’s evidence put us any closer to what we’re trying to get at today.
If you can help me out, fire away in the comment section.
”People can’t make choices they didn’t know they had” — wise Manitoba lawyer
I’ve never met Steve Sinclair. I don’t really know the first thing about him.
But over the past few weeks I’ve had to really watch myself — to guard against the conceit that I somehow do.
Ever since testimony really got underway in the Phoenix Sinclair inquiry a few weeks back, I’ve spent more than a few moments pondering her dad.
To be more specific: I’ve been trying to put my head around what it might be like to see intimate personal details about your troubled life through your childhood and young adulthood be cast out into the street for all to bear witness to day after day after day for all to see.
Manitoba is undertaking an inquiry into Phoenix Sinclair’s short existence, for sure — but in many instances it’s also appeared to have taken on the shape and form of a microscopic examination of Steve’s life as well.
I suppose it’s unavoidable. No. That’s just wrong. It is unavoidable.
It would be simply impossible to get to the bottom of what actions CFS took (or, as it’s becoming more clear didn’t take but maybe could have) during Phoenix’s all-too-short lifetime without proffering explicit details about Sinclair’s life and the circumstances which informed it before and after after his daughter was born.
We’ve been given a lot of information about Sinclair’s troubled past and, it must be said, reputed failings as a father. But those observations have largely all been filtered through the sieve of the minds, priorities and discretionary note-taking and observations of social workers and other CFS officials.
Sinclair drank heavily at times, we’re told. Couldn’t stay sober enough to hang on to Phoenix at one point. Appears to have abandoned her and vanished at another. Came from a background of CFS involvement and family abuse. Was on welfare. Didn’t seem to work.
And, it perhaps goes without saying: At least one time in his life Sinclair displayed horrible taste in whom he became romantically involved with.
But lost in the bureaucratic morass of case summaries, field visits and wrangling over lost notes and the imprecise departmental distinctions between safety and risk, there’s clearly another side to Sinclair.
To put it simply: It’s pretty apparent he tried.
Tried to play by the CFS rules to be a good dad despite a gloomy history of involvement with CFS agencies, its agents and foster homes over his lifetime. Tried to be a dad to his daughter in circumstances most would find beyond trying or manageable.
And likely, although it hasn’t been explicitly stated, seems to have tried to overcome his reputation as a “passive resistant” CFS client.
Hell, his real name is Nelson Draper Steve Sinclair, but consistently CFS workers refer and referred to him as “Steven.” [I've done this too in two separate reports and I felt horribly.]
Think about how remarkable Sinclair’s efforts are, really. Think of them in the context of the sickening and judgemental tenor of our society’s (mostly anonymous) gum-flapping about “welfare bums” and “natives” abusing the social-welfare system. Not to mention within the often-mentioned reality that aboriginal communities need fathers to step up. (More: Here).
More kids equals more free government assistance cash. Blah, blah, blah. (God, how our criticisms have become dismally uninformed and trite.)
I’m asking you to regard Sinclair within the context of the inquiry’s evidence so far.
That being: Sinclair as a young aboriginal man who clearly had little to no material wealth or grand future prospects and who didn’t just throw up his hands when his daughter was born and seized by CFS.
He agreed to work with the agency. And he did. As far as we’ve been made aware, between April 2000 and at least February 2001, he met all the demands placed on him. He, Kematch and Phoenix appeared to have a stable home life.
Then came April 2001 and the birth of Echo, his second daughter. It’s impossible to really know whether it was a lack of CFS diligence which allowed he and Kematch to leave the hospital without any CFS intervention (It was Delores Chief-Abigosis’s file at this point) or if it was because there were no child-protection concerns for Echo at the time.
Nevertheless, it’s pretty clear by now who was viewed as the real risk to Phoenix, and it wasn’t Sinclair.
When Kematch left their home a few weeks later with Echo in tow, it was Steve who picked up the ball and ran with it.
A couple of days later Kematch brought Echo back in a filthy state , leaving Sinclair a single dad who cared for both the kids, ostensibly with some help from friends. When Chief-Abigosis visited with him in July 2001, Steve was the person feeding Echo, holding her.
He and his sisters organized a sit-down with a worker this month to lay bare their concerns about what was going on in Steve’s life.
Then, Echo died suddenly of a respiratory infection, through no fault of Sinclair’s. Police quickly determined there was no foul play involved.
In the wake of Echo’s death, CFS says they offered Steve services on a voluntary basis. We don’t know yet why he rejected them — but it’s clear he was still working with community resources of some kind. I’ve never experienced such a great loss, so I won’t presume to get into Sinclair’s head as to what he was going through.
Months passed without apparent incident, except for Phoenix being brought to hospital in early 2003 with a thing in her nose, which may have been there for months. Worker Laura Forrest met with him soon after — at the same home he had lived in for about two years at this point.
She described Sinclair as “foul but sober” in her dealings with him. Insisting she’d return to see Phoenix, his reply, according to her, was “we’ll see about that.” How to interpret that properly? It’s impossible to know, really.
Phoenix would be be apprehended again June 22, 2003 after Sinclair apparently couldn’t get his act together enough to satisfy pairs of CFS workers he was able to care for Phoenix. There was no evidence whatsoever she was being abused in any way. Possible neglect was the real worry. Possible.
Phoenix was described emphatically by workers who sat with her in her the Place Louis Riel hotel room emergency placement as “well behaved,” as well as potty trained — so there had to be some parenting happening, some measure of honest care, in her life.
And although Kematch resurfaced at this point, making overtures to parent Phoenix, it was Sinclair who turned up in court on Aug. 13, 2003 with worker Stan Williams to say he wanted to resume parenting once he got things together.
Williams isn’t alive today to share his version and impressions of Steve, but through his boss, we learned he became a fierce advocate for the 21-year-old dad, believed in him to the point he’d basically — for right or wrong — convince his boss to get CFS to hand Phoenix back to Sinclair unconditionally on Oct. 2, 2003.
From there, it’s hard to say what the hell happened.
We do know CFS believes Phoenix somehow wound up in the care of Kematch for a while before she then mysteriously made her way to the safety of foster parent Rohan Stephenson, who, along with his ex, Kim, were good and trusted friends of Sinclair’s — people he (and CFS) trusted to care for Phoenix.
Had Sinclair gone off the rails and ditched out on being a dad?
He was hard to find — but it’s clear that when a worker finally spoke with him on Feb. 5, 2004, he agreed the best thing for Phoenix was for her to stay with the Stephensons as an unofficial place of safety. In a sense — that action was his doing right by Phoenix.
And that’s where we’re left off for now. Yes, there are gaps. Yes, there are some questionable decisions Sinclair made.
But he didn’t ever, ever appear to hurt his little girl — and he certainly didn’t murder her. Neglect her at times, perhaps, sure.
Wednesday morning, Sinclair is scheduled to take the witness stand.
We’re going to hear first-hand his side of the story. Why he chose to act as he did.
But to me, the inquiry — the most expensive such public proceeding in Manitoba’s history, and probably the most contentious — wouldn’t be possible without some major buy-in from Steve Sinclair, some continued effort on his part to see some kind of answers to what sounds like an easy question:
What the hell happened here?
Even in light of Phoenix’s death, Sinclair’s participation in the inquiry, to me, shows he was a father who cared.
And that’s a lot more than many, many other kids in Manitoba have.
We’re not in a position to judge Steve Sinclair.
People can’t make choices they didn’t know they had.