Sunday, October 14, 2018

Niagara Regional Housing: another regional authority under question

Public housing struggles to meet the needs of the community in every part of Canada. In the Niagara Region the Niagara Regional Housing Authority, NRH, oversees this task. The NRH is an arm of the Regional Municipality of Niagara even though it operates as an authority with its own board of directors. Funding for the NRH is primarily provided by the Niagara Region at approximately 60%, and both provincial and federal governments provide some 17% with a balance coming from its own operations through rents. At the end of the day 80% of the NRH operating budget is public money; taxpayers' dollars.

The NRH mission statement as read on its website claims “to expand opportunities that make affordable housing an integral part of building healthy and sustainable communities in Niagara.” Its strategic plan for 2013-2016 states that the “NRH demonstrates our commitment to this vision and to Regional Council's focus on Niagara as a healthy community, that supports a safe, healthy, diverse culturally rich community where people of all ages and incomes enjoy a high quality of life.”

Seniors' residences comprise approximately 45% of the public housing the NRH oversees, some they own and operate but the majority are semi-private and are funded by the NRH. Staff at the NRH whether management or not are public employees paid by the public purse. So an authority such as the NRH funded by the taxpayers' dollars would be expected to be answerable to public scrutiny, and to be diligent in overseeing its responsibility in shepherding public money. Well, in theory, yes, in practice it has left serious and alarming questions needing answers.

The Paderewski Society Home in St. Catharines is one such semi-private seniors home. It's life began as a vision of one man, Leopold Skorski, and is a registered non-profit society with a set of by-laws and an elected volunteer board of directors. Although it is a registered non-profit organisation its operational funding is entirely provided by Niagara Regional Housing, which is public money. Much as been written on this website relating to the Paderewski, with the most recent article detailing the trial completed late 2017.

As members of a society, we are aware that if we unlawfully take something that does not belong to us we will face an investigation and consequences. In the case of the Paderewski, a Superior Court justice said in his decision that the Purchasing and Tendering Policy had been breached. That same justice said the by-laws of the Society had been breached and the policies of the NRH. He called this very suspicious. A Forensic Auditor, Robert Forsyth, stated under oath fraud had been committed. Should this not be enough for a full police investigation and the guilty face consequences? Public money had been stolen and the NRH fully aware of this fact and nothing has happened.

After the trial, emails were sent to Niagara Regional Chair Alan Caslin and the current Chair of the NRH, Henry D'Angela advising them of the Superior Court's Justice decision and the testimony of Auditor Robert Forsyth. Remember the NRH is predominately funded by Niagara Region's tax dollars. Chair Alan Caslin has never responded, Chair of NRH Henry D'Angela on July 10th 2018 confirmed by email that he had forwarded the concerns regarding fraud to staff. His email had two names which he had c.c'd: Donna Woiceshyn, CEO and Shelly Upton. On July 12th 2018, Shelly Upton, Manager Housing Programs responded stating: “I have had an opportunity to review the Superior Court decision attached to your email as well as our files and records involving the Paderewski Society Home.” She continued that the NRH “has investigated allegations of improper spending at Paderewski on several occasions since 2009. Following each investigation NRH wrote to the Board of Directors of Paderewski confirming that no financial irregularities had been found.” Shelly Upton finished by saying that NRH “considers the complaint regarding the purchasing and tendering processes related to the fencing installed in 2011 closed.” Chair D'Angela referred to Shelly Upton July 10th at 1:13 pm., Shelly Upton closed the files July 12 at 7:20 pm. This had to have been a truly exhaustive review of records and files, although Upton did not surprise anyone.

Regional Chair Caslin's lack of interest in the fraud of public money is not so surprising with all he has had hang over him. First, there was the information of Alan Caslin's personal association with Justice Edwards who had heard a Motion filed against the Niagara Region, and a ruling in favour of the Region. Then there was the feeding frenzy by regional councillors in grabbing personal property belonging to a journalist and a private citizen. In this case, the Ombudsman slammed the Region after its investigation. Finally, there is the whole question of the hiring of Region's CEO Carmen D'Angelo. Yet Caslin and the NRH not caring about fraud is hard to accept, unless one reviews evidence put forward during the trial.

Entered into public record were minutes of the Paderewski Society Home board meeting on November 13th 2013. Present at the meeting was Lorraine Small, a manager with the NRH, and a manager who had supposedly looked into allegations of financial irregularities. Ms. Small advised the Board in November of 2013 to take legal action against Leopold Skorski to shut him up and stop him from asking any more questions. Lorraine Small is a public employee, paid with public money yet how did she have the legal right to provide such advice? Legal action was taken by the Board of the Paderewski against Leopold Skorski, Alexander Davidoff and Alexandra Davidoff in February of 2014.

Further testimony was provided by Stella Fensom, building manager at the Paderewski during the trial in 2017 who is the center of the questions of fraud, that Laura Beckwith another manager at the NRH at the time, handed over a copy of a letter written to the RHRA by defendant Alexander Davidoff. The Retirement Homes Regulatory Authority is a provincial body established to assist seniors in many facets of their lives. This provincial authority sent a copy of the letter they received to the NRH so that they look into the issues raised. Under no circumstances was anyone at the NRH permitted by law to provide a copy of the letter to a private non-government body who they advised to take legal action to silence questions being asked. Chair of the NRH at the time, Shirley Cordiner admitted to sharing the letter and then said she ordered all files to be deleted. Does that smell a little of the provincial Liberals and McGuinty? Paderewski lawyer at the time, Rachel Slingerland of Martens Lingard, refers to the illegally obtained letter in her Notice of Action dated February 27th 2014.

Shirley Cordiner, former NRH Chair went further writing a letter dated December 18th 2013 in which she stated that all the allegations made, in particular relating to two contracts: the Gale Force Fencing and Glen Paul, who had been investigated and no irregularities found. Both the judge at trial in 2017 and the Forensic Auditor Robert Forsyth found massive irregularities. Robert Forsyth called it fraud and Justice Henderson called it very suspicious and a breach of the Purchasing & Tendering Policy.

The timeline in all of these actions by the NRH staff is of crucial legal importance and raises the possibility of questions of complicity in the fraud. Can there be another explanation and can there be an explanation of why no investigation has been conducted of the fraud? Niagara regional staff had become involved directly in a legal action by a third party who is financed by public money. This same third party was improperly investigated by the NRH staff for fraud.

Questions relating to the absolute lack of interest in fraud of public money do not stop with the NRH or the regional government of Niagara. Malte von Anrep, Q.C, with Lancaster, Brooks and Welch LLP, and the lawyer for the Paderewski founder, Leo Skorski, wrote Mayor Walter Sendzik of St. Catharines on May 11th 2018. Mayor Sendzik did not bother to reply.

Chris Bittle is the federal representative for the Trudeau Liberals in St. Catharines, and a former lawyer with Lancaster, Brooks and Welch. An email was sent July 3rd 2018, stating out the details of the fraud and offering to make available all the legal documents. Niagara Regional Housing is in part funded by the federal government, MP Chris Bittle pops his face into photo-ops, and more importantly, Chris Bittle does not shy from public comment about local issues. Several months ago when a public storm broke in relation to a regional councillor from Niagara, MP Bittle played out his attack against the councillor publicly. That issue had nothing to do with a federal politician. Now he is silent, why?

The provincial elections swept the Liberals out of Queens' Park and brought forward two local former St. Catharines councillors into the glamour of provincial politics. Both Jeff Burch and Jenny Stevens were Merritton Ward Councillors and both have been elected as NDP representatives, and both have been featured in articles in Mayorgate.

Jeff Burch as a councillor found himself under investigation by Integrity Commissioner Suzanne Craig for lying to City Council. Craig was not able to complete her investigation but in her final report she clearly stated that she had not cleared Jeff Burch of these very serious allegations. Today Burch struts as the NDP Municipal Affairs Critic and on August 7th 2018 an email was sent to him relating to the fraud with a link to Justice Henderson's decision. The NDP, the New Democratic Party, which attacks the sitting Conservative government of Doug Ford has shown no care at all for fraud of the public purse. Burch has not responded to the email.
Fellow NDP representative Jenny Stevens, like Burch, was a former St. Catharines councillor, and in the 2010 municipal elections claimed to go out at night to fix plumbing for constituents. Jenny Stevens is also rather famous for her telephone answering machine message where she confirmed that the former Mayor of St. Catharines, Brian McMullan had fixed a fine for a resident. Stevens is Veterans Legions, and Military Affairs Critic and like compadre Burch she manages to pop out of her seat now and again to poke at the Ford government. She also received an email on August 7th 2018, and like Burch, Stevens ignored everything. The NDP is the official opposition in Ontario and it has much to say about the government, yet the NDP has shown that public money is not an issue of concern.

As a last resort, a letter was sent to Premier Doug Ford with the Justice Henderson Ruling and Robert Forsyth Testimony. Little expectation remained as previously both the NDP's Jeff Burch and Jenny Stevens, and the Federal Liberals through Chris Bittle ignored this very serious situation. A letter arrived dated September 17th 2018 signed by MPP Steve Clark, the Minister for Municipal Affairs. Minister Clark begins his letter with, “Premier Doug Ford has forwarded to me your letter regarding your concerns with the Niagara Regional Housing Authority.” Premier Ford had not ignored the material sent to him and through his minister, Steve Clark provided guidance and confirmation for the next steps to be taken.

It is difficult to understand how fraud by a non-profit seniors' housing provider be ignored, particularly when identified by a Superior Court Justice and a Forensic Auditor. The local newspapers The Standard, Niagara this Week and its editors have decided to censor all information relating to this, local regional government and its housing authority have closed their files, provincial opposition and the federal representative simply ignore everything; yet the Charter of Rights guarantees equality of law and this cannot be permitted to simply fade. Answers are demanded to serious questions and they need to be sought out.

Friday, July 6, 2018

Paderewski Society Home battle continues

The Paderewski Society Home for seniors in St. Catharines, Ontario, is a nicely kept residence where seniors from Polish background can spend their twilight years. It was the dream of one man, Mr. Leo Skorski, a Polish immigrant to Canada, who worked hard and did well for his family. Leo wanted to find a way to give back to the community which gave him and his family so much. As a result, the Paderewski Society Home came to life providing a clean well run seniors residence.

Today Leo Skorski, a man in his early 90's, sharp and full of life as ever, continues a fight which began in February of 2014. After the Paderewski was built and all the legalities completed Skorski served as the Board President for several years, transferring his uncompromising integrity and honesty from his personal and business life to the running of the seniors home. Eventually, Skorski became a resident at the Home and as the by-laws of the Home required, he had to step down from his position as the President of the Board of Directors. Although he stepped down as president he had not relinquished his concerns as to how the Home was run.

By 2009 the questions surrounding the actions of the Board of Directors of the Paderewski and the building manager Stella Fensom had grown immensely for Skorski, he enlisted the help of friend and Queen's Council, Mr. Malte von Anrep from the law firm of Lancaster, Brooks and Welch to find satisfactory answers. For some five years, Malte von Anrep on behalf of his friend and client made attempts to find satisfactory answers to the serious questions raised. The solicitor representing the Paderewski, Rachel Slingerland of Martens Lingard LLP, provided responses that to Skorski seemed ambiguous at best. Numerous attempts at communication with Niagara Regional Housing who funds over 90% of the operating budget of the Paderewski Society Home equally proved fruitless to Malte von Anrep and Leo Skorski.

Finally, in late 2013 Skorski was introduced to me, publisher of Mayorgate by Niagara Regional Councillor Andy Petrowski. Interviews with Leo Skorski and his lawyer Malte von Anrep, attempts at obtaining comment from Paderewski Building Manager, Stella Fensom which had been left unanswered, reviewing dozens of documents including responses by Niagara Regional Housing; all provided the basis for an article. Prior to publishing, I had contacted the Retirement Homes Regulatory Authority – a provincial body – relating to matters affecting seniors and the operation of seniors' residences. In addition to the RHRA, I contacted the Minister for Seniors Affairs seeking advice on the issues raised by Leo Skorski.

An article titled, 'Seniors Languish in Intimidation' was published in late January 2014. February saw three Notice of Action documents prepared and served by lawyer, Rachel Slingerland of Martens Lingard LLP claiming defamation. The three recipients were: Leo Skorski, Alexandra Davidoff, daughter of Alexander Davidoff, and Alexander Davidoff, publisher of Mayorgate. It was no surprise that questions raised in the article by Leo Skorski needed to be silenced but Alexandra Davidoff had no connection to the article. Her only connection to this website – Mayorgate – was to produce as an artist on occasion caricatures to articles. This was a clear attempt at intimidation and nothing else.

Once the Notice of Action was delivered the games began and continued for over three and a half years. Paderewski's lawyer, Rachel Slingerland, attempted to stall or stop a forensic audit from being conducted, she attempted to refuse to have Paderewski Board President, Sabina Glowacki from being questioned under the Examination procedure. Most notable of all was the refusal by Rachel Slingerland to examine Alexandra Davidoff as part of the Examination for Discovery process. And the refusal was clear, Slingerland knew that no evidence existed against Alexandra Davidoff.

Then in 2017, Rachel Slingerland, of Martens Lingard LLP walked away from the Paderewski as clients and a new lawyer took over the baton. Taking over the carnival was lawyer Zijad Saskin of Broderick and Partners LLP. A trial date was finally set and the trial judge was Justice J.R. Henderson.

It was a trial that lasted nine days, beginning on July 31st 2017 with testimony provided by President of the Board Sabina Glowacki, Board Member Tony Sotola, Building Manager Stella Fensom and Forensic Auditor Robert Forsyth. At question was the issue of Defamation and did the defendants harm the reputation of the Paderewski Society Home by making comments that were absolutely untrue in the article published on Mayorgate.

Defamation Law has changed dramatically since the Supreme Court decision in Grant v. Torstar Corp, 2009. Until this decision, the protection of reputation was the key to defamation action. Now a new defense had been brought forward that of responsible communication about matters of public interest.

A trial is pretty much like a game, and that is not said with any disrespect for the law or our system of justice; Law and its administration is a key component to a democratic society, still, the analogy presented is hard to ignore. The key players are the lawyers who do not play for any permanent team, their companies are nothing more than agents. Their mantra is in the best interest of the client, and as long as they are paid that is apparently the only rulebook.

In this case, the best interest of the client involved the malicious and vexatious prosecution of an individual even when both lawyers were fully aware that no evidence existed. Rachel Slingerland of Martens Lingard issued her Notice of Action in February 2014 and was immediately told that the defendant, Alexandra Davidoff, had no involvement with the Mayorgate website or the articles written and published. Rachel Slingerland had to have a motive for this act, after all, she is supposedly university trained and had passed the Bar.

Rachel Slingerland left the firm Martens Lingard and another lawyer from Broderick & Partners LLP, Zijad Saskin took over the file as the Paderewski lawyer. Saskin in taking the file would have had to review everything and would be fully aware that the action against one of the defendants was nothing more than intimidation but apparently the law mattered little to Zijad Saskin. On August 3rd 2017 the morning of the fourth day of the trial Justice J.R. Henderson said, “First of all, with respect to the Plaintiff's case against Alexandra Davidoff, in my view, there is no evidence that has been presented by the Plaintiff at this trial that would justify the claim against this defendant. Therefore the action against Alexandra Davidoff is dismissed.” (as per official transcript by Carol A. MacLean, Certified Court Transcriptionist).

Moments prior to dismissing the action Justice J.R. Henderson said, “I certainly have a question as to the evidence against Miss Davidoff,” to which Zijad Saskin representing the Paderewski Society Home responded. “As, I mean, as far as I'm concerned Your Honour, I, I would agree with your finding that there is no evidence against Miss Davidoff and as far as I am concerned, I would consent to an order dismissing the action against Miss Davidoff.” (from trial transcript by Carol A. MacLean, Certified Court Transcriptionist).

The trial continued with a judgment by Justice J.R. Henderson provided on the 3rd of November 2017. After reading the reasoning for judgment one can't help but burst into a rendition of the well-known song by Meatloaf, “Two Out of Three Aint Bad.” In this case, the plaintiff is a non-profit corporation, run by a volunteer board of directors, and “funding for the operation comes from NRH,” (page 3, paragraph 11, Justice J.R. Henderson, Reasons for Judgment – Introduction). Simply put the plaintiff, Paderewski Society Home, is a non-profit organisation solely funded by public money granted through a regional government body, the Niagara Regional Housing Authority.

At trial were three defendants: first was Leopold Skorski, a retired and successful businessman, who came up with the concept of a seniors' home for individuals of Polish heritage. He raised the financing, completed all the government red tape and built the Paderewski. He then served as the first president of the Board from its opening in 1991 to July 2007. Defendant Alexander Davidoff, the publisher of Mayorgate, interviewed Leo Skorski, then his lawyer Malte von Anrep, Q.C., of Lancaster, Brooks & Welch, gathered documents from various sources particularly the NRH and the plaintiff's legal representative. The third defendant; Alexandra Davidoff, had the action dismissed against her by Justice Henderson.

Skorski raised a number of questions about the monthly financial statements, tenant concerns, and the operation of the Paderewski Home. He enlisted the aid of Malte von Anrep, Q.C., and took these concerns to Niagara Regional Housing. At best he saw the responses he got as inadequate, Skorski then turned to Mayorgate in an attempt to bring public attention to the serious issues he felt were left unanswered. Justice Henderson at paragraph 6 in his decision states, “The Mayorgate article is the essence of the complaint in this action.”

Defamation Law is based on the principle that the plaintiff must prove that the words were reasonably capable of a meaning that can injure a plaintiff's reputation, and Justice Henderson says as much in paragraph 20 of his decision. At paragraph 147, Justice J.R. Henderson states: “I must consider the nature of the reputation that has been lost. In my view, given the financial irregularities, the Board's mishandling of Skorski's complaints, and the Board's questionable conduct at the AGM, the reputation of the Paderewski Home has been tarnished by its own actions. This was not a pristine well-run organisation at the time of the publication of the Mayorgate article.”

Further at paragraph 146, Justice Henderson writes, “I must look at the conduct of the plaintiff. In my view, Skorski was right to confront the Board about financial irregularities, but the Board mishandled and ignored his complaints. If the Board had reasonably considered Skorski's criticism, these matters may not have escalated to the point of the Mayorgate article. That is, Skorski went to the media only after his criticisms, some of which were accurate, had been ignored by the Board and the public authority.”

Then at paragraph 144, Justice Henderson writes, “given that there is public funding of the Paderewski Home, the allegations of tenant abuse may affect the plaintiff's source of public funds, and may also affect its reputation in the community to the extent that possible private fundraising may be suppressed.” What private fundraising is Justice Henderson eluding to when at paragraph 11 he confirms that the funding of the operation is provided by Niagara Regional Housing? At paragraph 146 he writes that Skorski had been ignored by public authorities, and by “public authorities” he meant the NRH, (Niagara Regional Housing). Several exhibits had been provided at trial, such as the letter from NRH Chair Shirley Cordiner where supposedly NRH staff conducted investigations and found nothing wrong at the Paderewski. The most alarming of all was a copy of the Paderewski Home Minutes of the Board of Directors Meeting of November 13th 2013, where it states, “Ms. L. Small from NRH visited the office on November 6, 2013” and then on page two, “Ms. Small suggested that the board again consider taking legal action against Mr. L. Skorski for harassment.”

Paderewski Society Home Minutes, November 13, 2013, part of trial exhibit #3, at tab L and on public record

There is a great deal more to question in the Justice Henderson decision. At trial, evidence had been provided by Forensic Auditor Robert Forsyth who had conducted an audit of the Paderewski Home. Forsyth testified that he felt on a balance of probabilities that there had been civil fraud, and in the opening to paragraph 66 Justice Henderson writes, “I specifically accept Forsyth's opinion that the Board violated its own internal Purchasing and Tendering Policy (PTP) in relation to the GFC contract.”

Through paragraphs 68 to 72 Justice Henderson discusses the GFC contract that spiraled to some $30,000. At paragraph 69 Justice Henderson writes, “I agree with Forsyth that this transaction is very suspicious.” Then further, “I also agree that the acceptance of the original GFC repair bid constitutes a violation of the plaintiff's own PTP.” At paragraph 70, “This again is a violation of the PTP of the plaintiff.” then again in paragraph 71, “Again the Board violated the plaintiff's own PTP” and finally paragraph 72, “Accordingly, I find the plaintiff violated its own internal regulations and failed to operate as directed by the NRH, with respect to the GFC contract.”

Following discussions of the GFC contract, Justice Henderson moved to the issues of Glen Paul, “the manager's carpenter”. In paragraphs 76 to 86 Justice Henderson dissects the contract which amounted to over $10,000. He begins writing again, “This is a clear violation of the PTP” at paragraph 76, then he says that Stella Fensom, the building manager, claimed that the privacy screen contract was a custom job and could only be done by Paul, to which Justice Henderson adds, “but those reasons were never recorded, and in fact are clearly untrue.” Further at paragraph 78, Justice Henderson writes that Fensom “deviated from the proper rules in so many ways, and then failed to disclose that she had a connection to the contractor is extremely suspicious.”

Justice Henderson raises the fact that the directives of the NRH were violated by Stella Fensom and the Board of the plaintiff in paragraphs 79 and 80. In paragraph 81 he begins with, “there are suspicious circumstances surrounding the payment to Paul,” then he writes at paragraph 84, “Finally, and significantly, the entire Paul contract is suspect because Paul is the brother of Fensom's daughter-in-law. Moreover, despite questions from Skorski and from Forsyth during the investigation, Fensom denied that she had a family connection to Paul until shortly before the start of the trial. I accept Forsyth's view that the fact that Fensom deviated from the proper rules in so many ways, and then failed to disclose that she had a connection to the contractor is extremely suspicious.”

Justice Henderson states Forsyth testified that there had been civil fraud but that he did not accept Forsyth's ultimate conclusion that fraud occurred. He said, “the missing elements of civil fraud are the proof of a loss to the victim (plaintiff) and the benefit to the fraudster (Fensom).” It can be taken then that Justice Henderson saw the Board of the Paderewski as the possible victim and building manager Stella Fensom as the fraudster.

Robert Forsyth provided lengthy testimony at the trial, and on page 9 of the trial's transcript it reads: “A Supreme Court case, a judge summarized four elements of civil fraud. Here I'm going to use the words Paderewski and Ms. Fentom [sic], Fensom. So a false representation was made by Ms. Fensom or somebody else in, in Paderewski. Some knowledge of that, that representation being false was known to, they call them the defendant. The false representation caused someone to act and there was a loss.” The Supreme Court case Forsyth referred to was from Bruno Appliance and Hryniak. Further at page 40 of the transcript, Forsyth says, “As a civil expert, I can deal with what I'm given but I don't have the power to compel bank statements. I don't have the power to, to speak to all of the contractees and distant people. I could only speak to Ms. Fensom and the Board so I could not follow up on things that I might otherwise have done.” He continued in response to a question by Malte von Anrep, “What I had was consistently being told he was met at the Royal Canadian Legion. There was no connection. There had been no situation where they met socially other than I think it was at Cat's Caboose, and at other places. That, that's what I was given to understand. Well, now there's a connection, a connection that seemingly was denied. So, first of all, that tends to make me even more dubious of any explanations offered by Ms. Fensom. Secondly, if, as I understand it, Ms. Fensom's son was married to the sister of Paul, that in a way provides motivation. It supplies the missing link.”

Forsyth further said, “on the balance of probabilities, makes me conclude that there was fraud, using my earlier definition of fraud, where now – excuse for me for one second – for now I, I know that there's a false representation. I know that, that Ms. Fensom knew or ought to know that, that there is some facts, material facts that weren't there. Paderewski did the contract because of Ms. Fensom's providing the information and that there was a loss. So I have apparently all the elements of a civil fraud.”

Robert Forsyth has a Masters in Social Psychology, an MBA in Management Science. He is a Certified General Accountant, a CFI, and in 2000 was certified as a forensic investigator. Since 2003 all his work has been in forensic accounting. He has been involved in ninety investigations or consulting assignments either for the Government of Ontario Ministries or for various lawyers in private practice, and an expert witness in ten court or arbitration cases. Forsyth was contracted by Niagara Regional Housing to prepare and deliver seminars on fraud and ways to prevent it and how to audit and investigate for fraud. Justice Henderson did not accept Forsyth's conclusion on fraud at the Paderewski.

Justice Henderson would not accept the word fraud, he preferred to say that the transactions were very suspicious and that the PTP had been breached. Then he turned his attention to the Annual General Meeting in his decision. Beginning with paragraph 92 through to 95 he dissects the By-Law of the plaintiff, the Paderewski, and the process that provides for the election of the Board. At paragraph 96 Justice Henderson says, “Accordingly, I accept that Skorski and his group had reason to believe that they were eligible to participate in the meeting, vote in the election, and run for office, provided they were not tenants of the Paderewski Home.” This has been said by Leo Skorski for several years and the facts he provided for the original article.

The conclusion to paragraph 96 was more of an eye-opener, “I do not make any finding as to whether the results of the 2013 election were valid, but I find that the decision by Glowacki to terminate the meeting, and prohibit Skorski and his group from participation was an irregularity in the process.” So once again Justice Henderson agrees with Skorski and now that's two out of three, and Meatloaf is about to sing... but wait, this is Justice Henderson.

In relation to potential tenant abuse or neglect, paragraph 97 shows where Justice Henderson was going. He writes, “The only tenant of Paderewski who testified at this trial was Skorski, and he testified that he did not live in fear at the Paderewski Home and that he had not been the subject of any abuse. Thus, any evidence of abuse of tenants by a Board member or by Fensom is hearsay evidence, and must be treated with caution.”

Hearsay evidence is tricky and when a judge makes such a statement it would be expected the statement is carried to both sides, here in this case, it did not appear to be by Justice Henderson. First, Skorski had fought for over ten years to bring the truth to the surface, and at age 91, he was threatened with eviction. Three main individuals: Mr. Janusz Zelichowski, Ms. Helen Cholawski and Mr. Dolbaczuk who spoke out and provided written statements, had all passed away before the trial had begun, others were hesitant to speak to an outsider.

Tony Sotola testified regarding the incident with tenant Zelichowski. At paragraph 104 Justice Henderson writes, “I find that Sotola did not do anything wrong to start the confrontation and that Zelichowski inappropriately responded by striking Sotola with his cane.” During his testimony Board Member Tony Sotola was asked by Malte von Anrep, “I'm not asking whether they convinced you to call the police or not, I'm saying to you, suggesting to you that nowhere in either your version of the events or Mr. Zelichowski's version of the, of the events, is there any mention of you being struck by a cane. Isn't that a fact?” Tony Sotola responded with, “That's a fact.”

In the end, Justice Henderson says at paragraph 116, “the statements in the Mayorgate article about tenant abuse and neglect are not substantially true,” and at 117 “I also find the statements in the Gestapo letter are not justified.” The meaning of the word substantially used by Justice Henderson implies that he saw some truth but not largely, mainly or greatly. Yet more alarming was the label Justice Henderson put on a plea for help from a 91-year-old for his fellow senior tenants.

Henderson is a Justice within the Canadian judicial system, a system built on the principles of the Charter of Rights. Canada does not accept any form of labelling in our society; be it on race, religion, or beliefs. Justice Henderson took that plea or help by seniors and labelled it “the Gestapo letter,” and then used that label eight times throughout his written judgment. Was it for effect or impact? In paragraph 6 Justice Henderson writes, “the plaintiff relies on one letter written by Skorski to NRH in early 2012, hereinafter called “the Gestapo letter”.” That statement by Justice Henderson is not “substantially” true as the letter is addressed to “Mr. Mayor, Mrs. Beckwith,” and its content primarily refers to the Mayor.

The mere connotation of the label “the Gestapo letter” brings to mind the horror of Nazi Germany, antisemitism and the most horrific abuse of human rights and murder. In the Statement of Claim by the plaintiff there is no mention of the letter at all. During trial the lawyer for the plaintiff, Zijad Saskin, referred to the letter and did not call it a “Gestapo letter.” Defendant Leo Skorski explained that many of the tenants are survivors of the Nazi occupation of Poland. He explained that it referred to in the sentence, “We have a genuine complaint and proof of the “Gestapo” style of treating helpless seniors,” actions taken by the Manager and a questionnaire circulated among tenants.

Out of the five paragraphs of this letter four begin with Mr. Mayor, and reading the letter there was no expression of anger or hatred which would be associated with such a label as Justice Henderson slapped on it. The letter finishes, “You have [You refers to Mrs. Beckwith of the NRH] the power to intervene in our situation and restore a healthy atmosphere and let us seniors live the rest of our lives in dignity and happiness.”

At the end of his decision Justice Henderson writes, “I find that Skorski in particular had good intentions” and “similarly, I find that Davidoff had good intentions as he believed that Skorski had raised issues of public concern.” The real crunch comes in paragraph 147 as Justice Henderson writes, “In my view given the Board's questionable conduct at the AGM, the reputation of the Paderewski Home has been tarnished by its own actions. This was not a pristine, well-run organisation at the time of publication of the Mayorgate article. I find that the unfounded complaints of tenant abuse reduced Paderewski's reputation, but other conduct by the plaintiff has also undermined its reputation.”

With such a conclusion defendant Leo Skorski who fought for well over ten years for the truth was asked for a comment, his response was: “I was very disappointed, because the opposite side was under oath did not tell the truth, regardless that I presented three written proofs and a forensic audit proof that fraud was committed, Justice was not served.” An opportunity for comment was provided to Skorski's lawyer, Malte von Anrep, who refused to respond. The lawyer for the plaintiff, Zijad Saskin was sent an email with a number of questions for his clients and an opportunity to provide comment on the proceedings completed before Justice Henderson. No response has been made available by the plaintiff lawyer Zijad Saskin, Stella Fensom nor by any member of the Paderewski Board of Directors.

Justice Henderson ruled in favour of the plaintiff and Meatloaf left the building with the lyrics of his song, 'Two Out of Three Aint Bad' in his hands. The ruling by Justice J.R. Henderson is under appeal at the Ontario Court of Appeal and this saga has not found an end as yet.

Sunday, May 6, 2018


Vengeance is referenced in the bible, yet from experience how often has the act of revenge been accompanied with unexpected consequences. All too often as human beings, we feel that payback is sweet and at times it may be. Our society has treated women, on the whole, less than fairly. Many will say that it is a gross understatement and one can shout out example after example of the unfairness through our history.

It is difficult to comprehend today what makes a woman less deserving of the right to vote or access to basic education. Today these wild barriers have become a thing of the past, yet society still has treated women in a less than comparable manner to men. Although women move within the circles of academia and politics equally to men they still find so many doors of so-called equal opportunity if not shut, very difficult to open.

Although the idea of inequality is reprehensible in any form it is the manner in which women had been treated by men in a moral even legal sense that has brought greater attention today. The inequality had manifested in our justice system as much as in society. Too often a woman who had been assaulted found herself facing a disbelieving legal machine where she is forced to prove that she had not in fact mitigated the circumstances of the assault.

This inequality brought to life a spark in a young woman born in The Bronx, New York.  Tarana Burke, at the age of fourteen, joined the 21st Century Youth Leadership Movement whose purpose was to create grassroots community organisers, and to this day has remained an activist in the community.  After graduating college Burke developed an African-centered all-girls programme titled Just Be with its ultimate goal to "ensure that young women move through adolescence and into adulthood with a strong sense of self-worth and healthy self-esteem." (Wikipedia, Tarana Burke).

In 2006 Tarana Burke still eager to find a resource that would help young girls heal created the Me Too My Space page, and the response was almost immediate with young women wanting to know how to be a part of the movement.  It was not until October 2017 that Burke had become aware of the MeToo hashtag being used without credit to her.  Actress Alyssa Milano started using #MeToo as an internet hashtag partially as a response to the accusations surfacing against Harvey Weinstein.  Later Milano acknowledged Burke's much earlier use of the phrase and the movement that it had created, and Burke has remained supportive of the #MeToo hashtag.

Tarana Burke's goal was to help young women heal and to develop a sense of self-esteem and self-worth, she had been quoted as saying that the movement was about “empowermental empathy.” Now it is a fair question to ask if the #MeToo movement has shifted from Burke's original ideals? After all, the word empathy does not equate with a presumption of guilt simply based on accusation alone.

Hashtag MeToo appears to have become a mighty weapon, a divine sword of vengeance. Should an imperfect or as some say even broken system of justice where procedural fairness has been ignored be replaced by another extreme version? Whether it is popular to ask that question particularly by a male should not silence the need to seek an answer.

Today we are faced with a smothering blanket of fear wielded and manipulated by the MeToo Movement, where a mere accusation is enough to end everything. This new system of justice where an accusation is enough to exact consequence is not only gripped the world of entertainment but has spread across the board of society into government and all corners of the business world.

No one can deny that harassment of any kind must be fought and that sexual harassment has been a silent weapon used by predators for a long time. The unveiling of Harvey Weinstein was a good thing and needed to be done, but what has followed has gone to an extreme that threatens the very foundation of justice or procedural fairness.

An accusation of sexual harassment or any form of sexual impropriety is enough to have an individual removed from his job and face a public storm. In most cases, the accusation or allegation is not accompanied by evidence and all too often is based on something that happened in the past. Even words spoken in an inappropriate manner are enough for the MeToo banners and T-shirts to start waving in the air.

One such example comes from Canada when Steve Paikin, host of the TVO political show Agenda, was accused by a formal mayoral candidate Sara Thompson of sexual impropriety. Thompson, a candidate in the 2010 mayoral campaign for Toronto, accused Paikin of asking her if she would sleep with him. The allegation by Thompson claims that Steve Paikin made this advance in exchange for putting Sara Thompson on his show.

Thompson sent Steve Paikin an email outlining her position which he provided to the TVO executives. To their credit, TVO did not cave into the hysteria created by MeToo and did not remove Steve Paikin as host of the programme. Lisa de Wilde, CEO, in a press release stated that Paikin will remain as host until an independent investigator Rachel Turnpenny – a lawyer specialising in workplace investigations – completes her inquiry.

The investigation took eleven weeks and twenty-one witnesses were interviewed at the end of which a 27 page report was released by Rachel Turnpenny of the law firm Turnpenny Milne LLP. Steve Paikin had been cleared of any wrongdoing. A CBC article by Kristin Tushony and Samantha Beattie, (Steve Paikin cleared after investigation into allegation of inappropriate comment, April 27, 2018) quotes from the report, “At times, the investigation had some serious concerns with Thompson's approach to the investigation. The investigator learned that Thompson was contacting potential witnesses in what appeared to be either a fishing expedition to secure other potential complainants against Paikin or to garner support for her recollection. Thompson also demonstrated a tendency to suggest to witness a version of events (in line with her own perspective) prior to their interviews with the investigator.” The full report and appendix were released on

MeToo has become a powerful weapon and most corporations cave in, TVO in this situation did not see that an accusation alone was enough. It takes courage to stand up against any form of pressure which attempts to exact actions otherwise not contemplated, as it takes immense courage to publicly critique and examine the realities of a phenomenon like MeToo.

Margaret Atwood, an extremely well known Canadian author wrote an opinion piece titled 'Am I a bad feminist?' for the Globe and Mail, published January 13th 2018. Atwood wrote this in response to being labelled what she refers to as a “Bad Feminist.” This label had found itself justified in part for an Open Letter called UBC Accountable that Atwood had signed in November 2016.

"In November of 2016, I signed - as a matter of priniciple, as I have signed many petitions - an Open Letter called UBC Accountable, which calls for holding the University of British Columbia accountable for its failed process in its treatment of one of its former employees, Steve Galloway, the former chair of the department of creative writing, as well as its treatment of those who became ancillary complainants in the case," Atwood's own words from the Globe and Mail article.

Steven Galloway was a UBC professor who had been accused of sexual misconduct. He did not know who his accusers were and was forced to sign a confidentiality agreement so he could not even defend himself. After an inquiry conducted by a judge found that there had been no sexual assault, Galloway was fired anyway. Atwood had signed this petition with a number of other prominent people, several of who have withdrawn their signatures after a frenzy of pressure.

In her article Atwood says that the MeToo Movement is a symptom of a broken legal system that found a new tool on the internet, she adds: “If the legal system is bypassed because it is seen as ineffectual, what will take its place? Who will be the new power brokers?” That is the danger now society faces and these new power brokers appear to care little for a fair procedure or legal rights. It has become a new religion, a fever-pitched shrill which marches on the warpath.

Europe in many ways has seen the MeToo Movement in a different fashion. French actress Catherine Deneuve along with some 100 french writers, performers and academics had written an Open Letter which appeared in Le Monde, saying gallantry is not “macho aggression.” Euronews published a translated version of the Letter on January 10th 2018, 'Catherine Deneuve says “flirting is not a crime," criticises #MeToo movement' where the Open Letter states: “Rape is a crime. But insistent or clumsy flirting is not an offence, nor is gallantry a macho aggression.” Out of all the sentiment expressed in this letter the most powerful was, “#metoo has defacto led to, in the press and on social networks, a campaign of public denunciations and indictments of individuals who, without being given the opportunity to respond or defend themselves, have been put on exactly the same level as convicted offenders.”

Deneuve faced a backlash of attack for signing this letter and on January 15th 2018, in an article by Christopher Hooton for the Independent said, “Yes, I like freedom, I don't like this characteristic of our times whereby everyone feels they have the right to judge, to arbitrate, to condemn. A time where simple denunciations on social media generate punishment, resignation and sometimes, and often, lynching by the media.” Deneuve, on the other hand, finished by saying, “I am a free woman and I will continue to be. I warmly salute all the victims of odious acts who may have felt offended by the letter published in Le Monde, it's to them and them alone that I apologize.”

To disagree with MeToo is to face a potential backlash of accusation and attack for taking an anti-feminist stand, yet our democratic society is anchored in the freedom of speech for all and a belief that justice is equal to all. Somehow MeToo forgets that and appears to demand punishment purely on an accusation, is that justice?

There is no denying that MeToo had brought to public attention some serious predators like Harvey Weinstein and Kevin Spacey. Through this Movement five women had made public the actions of famous New York architect Richard Meier, a partner in Richard Meier & Partners. One of his accusers was paid $150,000 as a settlement which adds more credibility to the accusations. Hadley Keller for his article in Architectural Digest, March 13th 2018 published Meier's apology: “I am deeply troubled and embarrassed by the accounts of several women who were offended by my words and actions. While our recollections may differ I sincerely apologise to anyone who was offended by my behaviour.” Richard Meier has stepped down from the company carrying his name until a full HR investigation is complete.

Charitable organisations such as the Red Cross, Oxfam and Plan International UK have come face-to-face with allegations of inappropriate behaviour and more. The need to dump staff and place promissory notes of pending investigations have found their way into collection boxes. Of all organisations facing this tsunami is the Vatican. Nuns are describing how they are mere slaves to bishops and cardinals. After all the cleaning, washing, cooking and serving they are not permitted to sit at the same table repast.

Still, for all the publicised victories the MeToo Movement seems to roll through the landscape of society with the air of intimidation of sexual misconduct stemming from alleged incidents committed ten or more years in the past. One such example comes from the Los Angeles County district attorney's office where five cases of sexual harassment against filmmaker James Toback were dropped. Even though there were several hundred allegations made against Toback, the five which the police brought to the D.A. had fallen beyond the statute of limitations.

Statue of Limitations could have played an important role in the Bill Cosby situation but justice, as broken as it is, claimed to be, found the crimes that Cosby was accused of could not go free. Bill Cosby had been called a raping monster by one accuser, and it was the courage of one woman, Andrea Constand, to endure a retrial and heavy examination by the Cosby defence lawyer which brought him to justice. Cosby was convicted of three counts of sexual assault, (each carrying a conviction of 10 years imprisonment); his lawyer has said that Cosby will appeal.

Time is not only the issue that some of the women have had to deal with, although that can be a completely separate topic of discussion. No investigation into any allegation can ignore the motivation behind the accusation. Indian-American comedic actor Aziz Ansari who won a Golden Globe award for his Netflix series 'Master of None' has had to face these questions.

According to all accounts, Aziz Ansari met a young woman at a party which later led to the two of them going on a date. After the date the young woman, anonymously, provided the website Babe an account of her encounter with Ansari claiming sexual assault. Ansari has not denied the date or of engaging in sexual activity, only that he thought everything was completely consensual. If Ansari was a surburban fella who took a girl to a restaurant and later to his apartment, no dissatisfaction of either party would be made public. Aziz Ansari is not a suburban fella; he is a Golden Globe winner and the topic for all talk show hosts to dissect and discuss his life and reputation, while the young woman remains anonymous.

Washington Post and Variety had reported that allegations of inappropriate overtures had been made by veteran broadcast journalist Tom Brokaw in mid-1990's. The accuser is a former NBC News and Fox News correspondent Linda Vester. Brokaw denies these allegations and wrote an emotional letter to friends and associates from which CBC News quotes: "She couldn't pick up the phone and say I'd like to talk. I have issues from those two meetings 20 years ago. Instead she became a character assassin. Strip away all the hyperbole and what has she achieved? What was her goal?" (Tom Brokaw 'hurt and unmoored' by sex harassment allegations, Associated Press, April 27, 2018).

Then there is Paul Bliss who was CTV's Queen's Park Bureau Chief, a veteran reporter and news anchor. As Postmedia's Christie Blatchford said, “he did the truly modern death.” (Christie Blatchford: There was no other way this story could end but in Paul Bliss being disappeared, National Post, March 8, 2018).

Paul Bliss found himself at the opposite end of this new justice stick. He had been accused of sexual abuse. The accuser was a former CTV employee, Bridget Brown, and the incident of sexual abuse had happened in 2006. Blatchford states, “she wasn't hurt, … disgusted and traumatized, yes. Hurt no,” and went on to have “an excellent career at CTV.” Then why such an allegation twelve years later? According to the article “Brown was struggling with CTV's coverage of MeToo. In particular the slightly smug reporting of some of their reporters on the Patrick Brown story.” Blatchford further writes Bliss was “done in by publicly made allegations of sexual abuse and the climate of corporate fear wrought by #MeToo.” A career shattered by allegation alone, now Bliss has launched a 7.5 million dollar lawsuit over the dismissal; suing the broadcaster, its parent company, and the woman who made these public allegations. “Bliss claims that he and Brown had a consensual encounter and that she had defamed him.” None of this has been proven in court yet.

The matter which had upset Bridget Brown so much was the public allegation of sexual misconduct by two women against former Ontario PC Leader Patrick Brown. Former yes, as the public allegations had been the reason his leadership of the PC Party ended. One of the women originally claimed she was in high school and under the legal drinking age, later changing her story that she was out of high school and of legal drinking age at the time of the incident. Again the alleged incident occurred several years ago when Brown was a federal MP representing the Barrie, Ontario area.

Patrick Brown has denied these allegations from the beginning calling them false and malicious. Still, it is the power wielded by the MeToo fever that brought an end to his leadership of the political party. Now Patrick Brown has filed a statement of claim that seeks damages of $8 million and an order that CTV remove all material in its possession that alleges sexual misconduct to CTV News. Yet again the action has not been proved in court, and regardless of whether Brown wins his action, the allegation will haunt his name after the gavel falls.

MeToo's power comes from making the allegation public and forcing life-changing consequences purely based on the allegation. Requiring an investigation and evidence to prove the allegation does not make one insensitive to women, nor does it mean that requiring such basic rights makes one complicitous with a potential offender.

In England Bill C 51 is almost law heading for a second reading in their Senate. The Metropolitan Police Commissioner in London, Cressida Dick is quoted by Christie Blatchford for National Post, in 'Unlike Canada, U.K. has learned sex assault victims' aren't always victims' (National Post, April 2, 2018) as, “What seems so elementary - that the first job of police isn't to support victims or anyone else, but rather to investigate complaints – got lost in 2014, when the national acceptance of victims as inherently being truthful went to a flat-out recommendation that the presumption that a victim should always be believed should be institutionalized.”

Police Commissioner Cressida Dick was referring to Operation Midland where accusations of a VIP pedophile ring were brought forward by one alleged victim, who was known as Nick. A number of prominent men had their reputations and lives ruined even though no criminal charges were laid. Later a report into the 'Operation' by retired high court judge, Sir Richard Henriques, found that “the presumption of innocence was set aside by detectives in their eagerness, and what they felt was their duty, to believe Nick.” Blatchford further quotes Henriques: “this protocol of automatically believing victims perverts our system of justice, strikes at the very core of the criminal justice process, will generate miscarriages of justice on a considerable scale, and should be scrapped.” According to Blatchford “And scrapped, thanks to Dick, it has been.”

The British may re-enforce the principles of a justice system where the presumption of innocence and the requirement of proof of guilt is “elementary” before any sentencing. MeToo does not use the justice system rather it has developed its own form of justice through social media and traditional journalism hungry for headlines; all of this whilst claiming that the justice system is broken.

An example of this new justice system comes in the form of a letter sent to the National Post, the writer is anonymous of course. This letter had a copy of an email attached which the writer claims was sent by a male supervisor, and which the writer claims to be “a sexually explicit message about a female colleague's lingerie.” The writer further claims that the male supervisor encouraged “all recipients of the email to approach the female colleague about it.”

Once again quoting Christie Blatchford, (Anonymous letter shows #MeToo has spread to ranks of ordinary workplaces too, National Post, February 1, 2018), “Clearly the expectation that accusers must and should and will always be believed – mouthed with nauseating regularity by every political leader in the country, among others – has permeated the ordinary workplace.” That offending email was examined and parts quoted in the article leaving one questioning the mental state of the writer of the complaint. Blatchford said, “There isn't an adult in the world, male or female, who should have taken offence at that email, there was nothing offensive about it.” What has become amazing is that both #MeToo and #Ibelieve demand that every person who makes any allegation relating to sexual misconduct is telling the truth. No evidence is required, no proof only the accuser's words. This is not fixing a broken justice system.

Finally after all the discussion of the benefits that MeToo has had on today's society and the examination of the shocking effect its followers have forced on the democratic belief of procedural fairness comes this article for the CBC. It is an Opinion piece written by Michael Spratt, titled 'The presumption of innocence is for courtrooms, not politics', (January 30, 2018). Spratt appears to have the opinion that political figures are lesser Canadian citizens and therefore should not expect any procedural fairness. He also seems to approve the system of exacting consequence on accusation alone.

Micheal Spratt tells the reader that he is going to let them in on “a little secret: that the “presumption of innocence is a legal construct.” Apparently, this legal construct was designed to protect individuals charged with a crime so as to prevent unfair deprivation of their liberty. If that is the case then the rest of society, and it is quite a big chunk of it, has no right to have an accuser prove their accusation past the raised pointing finger.

Spratt goes on to say, “To insist on the strict application of the presumption of innocence in everyday life is an absurd and insidious act of complicity to the realities exposed by the #MeToo movement.” Then several paragraphs later he says, “there is no question that as a society we should strive to be fair – to both the accusers and accused.” Is there a contradiction between these two sentences? Or is it that presumption of innocence is absurd and bordering on complicity with the accused only in MeToo situations?

"As a practicing lawyer... [Yes, Michael Spratt indeed is a lawyer!], I know allegations can destroy lives. I know that false allegations do happen. I have seen them. And it is true that we need to be vigilant against any fraying of one of the golden thread that holds our justice system together." The very same writer in the article states, "the presumption of innocence does not mean someone is factually blameless until proven otherwise. In short the presumption of innocence is a procedural protection to ensure fairness - not a moral imperative." Don't you love lawyers? The question is, has MeToo and all its offspring empowered women or simply powered up women to be the new bully?

Wednesday, March 7, 2018

Niagara Region Disembowels the Charter

The Regional Municipality of Niagara has eviscerated the heart of our Charter of Rights and it has done this with willing accomplices from the Niagara Regional Police and the Office of the Ombudsman. Regional Chair Alan Caslin cannot be permitted to shrug off the responsibility we call Regional Council and Regional Government. His leadership should have ended with the public knowledge of his personal association with Justice Edwards but this is Niagara, where truth, news and facts were filtered through a cheesecloth of censorship.

On December 7th 2017 a storm exploded at Niagara’s regional council meeting. The consequences of this storm spilled out of the teacup to affect the very foundation of our Canadian Democracy and our rights as Canadian citizens.

During a council meeting open to the public and media, it was announced that a closed door meeting was to be conducted. In many municipal council chambers that means the council and municipal members leave to another room and have that portion of the meeting. At Niagara’s Regional Council the public and media are asked to leave the chamber and only return once that portion of the meeting is over. On December 7th 2017 Fort Erie Regional Councillor Sandy Annunziata claimed that Preston Haskell, who was sitting at the media table, had hidden his voice recorder under his cap and left the chamber. The implication here is that Preston Haskell wanted to secretly record the closed-door portion of the council meeting.

Sitting next to Preston Haskell was reporter Bill Sawchuk from The Standard, with his laptop open and note pad. Bill Sawchuk also left the council chamber, leaving behind his laptop on the media table.

Councillor Annunziata’s apparent panic resulted in the seizure of Bill Sawchuk’s laptop, notes, and Preston Haskell’s personal recorder. In addition Sawchuk was told by Region’s General Manager Chris Carter to leave the building, and if he did not comply he would have to deal with Niagara Regional Police (NRP) officers.

It has to be made clear from the beginning that the seizure of private property was by Niagara Regional Staff not by the Niagara Regional Police. This was an unlawful seizure of personal property by Regional Staff. No law in the Criminal Code of Canada had been broken by either Haskell or Sawchuk, no section of legislation from the Municipal Act had been breached, and no municipal by-law exists that prohibits the recording of council. Who provided the legal authority to anyone at Region to seize personal property?

Bill Sawchuk called his newspaper, The Standard called their lawyer, and Sawchuk’s laptop and notes were returned to him four hours later. Preston Haskell on the other hand is a blogger and private citizen and if he called anyone it may have been his wife. His recorder was kept by Region and turned over to Niagara Regional Police the next day.

Now the destruction of the very basic principles as guaranteed by our Charter of Rights and Freedoms really becomes alarming. No crime of any kind had been committed, not by Sawchuk nor Haskell. Haskell’s recorder was seen on the desk clearly in the open and in the livestream recording of the meeting until the closed-door meeting was called. Since the seizure by Region of the recorder, Regional Councillor Tony Quirk from Fort Erie had posted on Facebook as saying that it is “a violation of the criminal code to attempt to record a conversation or deliberation to which the party attempting to record does not have standing." That is absolutely false and Councillor Quirk has been asked to explain his statement. Councillor Annunziata laid claim to “political skullduggery,” and has since refused to comment. All of this points to an insane overreaction by Regional Councillors and the mindless response by Regional Employees. The Director of Legal and Court Services, Donna Gibbs, was present; surely she is aware of the law? 

The seizure had been committed by a private individual; yes this person is in the employ of the Regional Municipality of Niagara but still a private individual. This seizure was unlawful and may even be considered as theft. Niagara Regional Police had been called but only to bully Bill Sawchuk to leave the building. Those police officers did not speak to Preston Haskell, who had left the building before the police arrived, nor did they seize any other property or search anyone. After returning Sawchuk’s personal property Regional Staff kept Haskell’s recorder and later handed it to Niagara Regional Police. The first screaming question is what did the regional employee say to the police? Police officers are expected to have a fundamental understanding of the law and if in doubt then it would be expected that an officer would approach someone with more stripes for clarification. What was the justification or motivation for NRPS to accept this piece of personal property? Did they ask how did it become the possession of Regional Staff, and why? Regional staff had no lawful authority to seize personal property when no crime had been committed.

Researching the law surrounding seizure of property in the Criminal Code of Canada and the Canadian Criminal Law Notebook written by Peter Dostal, a lawyer with the Public Prosecution Service of Nova Scotia, only more alarming questions arise. As Peter Dosal states, “The Canadian Criminal Law Notebook is a legal reference covering the principals and rules set out by the Criminal Code and case law. The Canadian Criminal Code and the years of accompanying case law have created a dense field of law full of rules and expectations that are not always readily known to most people including practitioners.” These last words appear to hold a great deal of weight. Mr. Dostal finishes his introduction with: “It is divided into five essential areas, substantive criminal law, criminal procedure, search and seizure, evidence and sentencing.”

Canada’s Charter of Rights and Freedoms under section 8 states, “Everyone has the right to be secure against unreasonable search or seizure.” The Canadian Criminal Law Notebook (CCN) expands further on section 8 of the Charter when there appears to be an intrusion on a person’s reasonable expectation of privacy. “An expectation of privacy is a normative rather than a descriptive standard. It is concerned with the degree of privacy needed to maintain a free and open society, not necessarily the degree of privacy expected by the individual or respected by the state in a given situation.” The CCN continues, “the determination of privacy rights is made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.”

Did Bill Sawchuk and Preston Haskell, both sitting at the media table, side-by-side, have a reasonable expectation of privacy? Sections in the Criminal Code, such as s.487 and s.489, provide the rules for Search and Seizure. Further, s.490 provides a comprehensive scheme for the management, return or disposition of items that have been seized. Ideally in any situation any seizure of property should occur after a Warrant to Search and Seize has been approved by a justice. There are circumstances where Warrantless Seizure is permitted under s.489, depending on specific circumstances of an incident. The whole issue of seizure with or without warrant has to be based on a peace officer’s belief of reasonable grounds that the item seized was a) obtained by crime, b) used in a crime or, c) affords evidence of a crime.

“This provision permits an officer who is executing a warrant to make a warrantless seizure of anything he believes on reasonable grounds has been used in the commission of an offence. The legal test for reasonable grounds to believe should be the same as that for Warrantless Arrests. It must involve an objective basis for the belief which is based on compelling and credible information. It is something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities.”

As stated, the rules surrounding search and seizure – with or without a warrant – are intricate and legally extensive. On December 7th 2017 no police officer seized any item of personal property belonging to either Bill Sawchuk or Preston Haskell. In fact the NRP were called on the advice of Regional Councillor Dave Augustyn. Those NRP officers were only used to bully Sawchuk into leaving the building without his personal property. The seizure had already occurred behind closed doors, with no witnesses other than self-interested regional staff. If Sawchuk had not agreed to leave the building on what grounds could the NRP physically escort or arrest him? How can anyone behind those closed doors be trusted as a witness to the facts? Were cameras still recording after the doors were closed as a record of the closed door meeting?

Rules relating to seizure without a warrant state, “Every peace officer and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may without a warrant, seize anything that the officer believes on reasonable grounds, 

a) has been obtained by the commission of an offence against this at any other Act of Parliament;

b) has been used in the commission of an offence against this or any other Act of Parliament; or

c) will afford evidence in respect of an offence against this or any other Act of Parliament.”
Who at Region was the public officer appointed or designated to administer or enforce any federal or provincial law? It appears Regional Councillor Sandy Annunziata did the search of private property claiming, “heightened awareness of the presence of political skullduggery,” and Councillor Dave Augustyn advised to call the police in the panic. Are either of these two councilors qualified under this rule? A regional employee was then instructed to physically take Sawchuk’s computer, notes and Haskell’s recorder, and take them somewhere. Who gave this direction, was it Regional Chair Alan Caslin? All of this was done behind closed doors and under the nose of Donna Gibbs, Director of Legal and Court Services.

Sawchuk’s computer and notes were returned to him after four hours as the newspaper unleashed its legal people onto Region, but not the recorder belonging to Haskell as previously stated. It was not until the following day that Region took the recorder to the NRP. Where was it held? Who had access to the recorder all those hours? What was said to the police to justify the unlawful seizure and custody of personal property?

As with Arrests and Search and Seizure there are rules under the Criminal Code for the detention of seized items. Under s.490 a Report to Justice must be provided as soon as possible regarding the thing seized. Normally this report is brought to the justice who signed the search warrant, in this case no warrant existed: a third unlawful party had seized the voice recorder, not the NRP. What did the NRP provide to a justice as reasoning why the thing was seized? What crime did the NRP claim was committed and by who? Sections 489 and 487 provide the parameters for any seizure yet how did this unlawful seizure by a third party satisfy those sections and the justice?

In R v Garcia-Machado, 2015 ONCA 569, “the judge found that Garcia-Machado had “a high expectation of privacy in the items seized, both of which contain a high level of personal and private information.” He concluded that “police failure to report to a justice as soon as practicable rendered the otherwise valid search unlawful and unreasonable, contrary to S.8 of the Charter.” He then excluded the evidence under s.24(2) and acquitted Garcia-Machado.” (Blue Line, ‘Untimely report to justice breached charter’ by Mike Novakowski, September 8th 2015)

This was the result when the initial search was valid and conducted by a police officer. The Crown appealed to the Ontario Court of Appeal arguing that s.8 of the Charter had not been breached but the court rejected the Crown’s submission. It is difficult to understand what the NRP used in the report to justice in this issue, and what crime was claimed to have been committed.

It was interesting to read Regional Councillor Tony Quirk’s comment thread on Facebook when he said, it is “a violation of the criminal code to attempt to record a conversation or deliberation to which the party attempting to record does not have standing.” This sounded like official or formal language but sadly it was only Councillor Quirk’s paraphrasing technique. Councillor Quirk was asked where did he find this quote in the Criminal Code and his first response was short and simply stated a reference to Section 184.

Section 184 of the Criminal Code has a heading which reads Interception of Communication, with subsection (1) stating: “Everyone who, by means of any electro-magnetic, acoustic, mechanical or other device, willfully intercepts a private communication is guilty of an indictable offence.” It is this that Regional Councillor Quirk paraphrased and posted on Facebook. At this point it should be noted that some sections of the Criminal Code require cross-referencing to other rules and common practices leaving the language of the Code somewhat dated. One such section relates to Duelling and in today’s society might be outdated, unless street racing somehow loosely falls under its jurisdiction.

Still subsection (1) Interception has directly below it “Saving provision,” a get out of jail free card so to speak. Here it states, “Subsection (1) does not apply to, (a) a person who has the consent to intercept, or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it.”

As Preston Haskell had his recorder sit on the media table in front of him in full view of any and all council members, with permission to record the council meetings, Councillor Quirk was asked if he read this subsection. Like a politician anywhere Councillor Quirk ignored that question. Instead Councillor Quirk said in his second email, “Those Search and seizure provisions don’t apply to equipment left behind and abandoned. Which is what happened. The owners forfeited those rights when they left the equipment behind in closed doors.”

According to Regional Councillor Tony Quirk any individual who may leave to go the washroom, or leave for any other reason expecting to return and find the doors close behind them lose ownership rights and protection of the law. Councillor Quirk seems to only paraphrase the Code and ignore little things like Reasonable Expectation of Privacy, as discussed earlier.

Preston Haskell published this statement on his blog in relation to the seizure incident at Region: “It turned out that security had my hat, scarf, coat, camera and even the recorder pouch but no recorder. Dangling the recorder pouch in my face security asked if the recorder for the pouch was mine. I answered in the affirmative. He said it was too bad because it was confiscated and I wouldn’t be getting it back.”

Haskell repeatedly said that he left the council chamber to go to the washroom before the closed door meeting was called. This can be easily verified by the video recording of the meeting as to the truth of Haskell’s statement. It also explains why security came out to give him back his property, namely the hat, scarf, coat and camera. Yet it does not explain why Councillor Quirk would say in writing ”…equipment left behind and abandoned. Which is what happened.” Why would Councillor Quirk make a statement such as this which is false?

The seizure of personal property by regional staff was clearly unlawful. Handing over of the illegally seized item to the Niagara Regional Police continually raises the question as to why did the NRP take this illegally seized thing. In an email dated February 14th 2018, Stephanie Sabourin, NRP Media Relations Specialist said, “The recording device remains in the possession of the NRPS pending a determination by the Ombudsman. We maintain possession of the device under a detention order made following a Report to Justice. This allows us to maintain possession during our investigation, other proceedings and while determining lawful ownership.”

This response by Stephanie Sabourin for the NRP was bewildering as the device was illegally seized, no crime had been committed nor any law broken, at least not by Haskell, and its legal ownership was clearly stated from the moment it was seized. All of this simply did not make sense so further clarification was sought from NRP’s Chief of Police. Acting Inspector Luigi Greco, Executive Officer to the Chief of Police responded with an email on February 15th 2018. Acting Inspector Luigi Greco supported the information provided by Stephanie Sabourin and added, “I can confirm that the property in question is in the lawful possession of the Niagara Regional Police Service to ensure the continuity of the item in respect of the ongoing investigation by the Office of the Ombudsman.” Preston Haskell had never been charged by the NRP for a crime, nor was there any crime committed by Preston Haskell. The Ombudsman has no power or authority to do anything but make recommendations to government bodies, he has no authority over private citizens or their personal property.

Ontario’s Ombudsman has an Act in the Legislature which sets out its powers and authority. The Municipal Act under sections 238 and 239, and in particular 239.1 also sets out procedures for meetings, procedural by-laws and investigations. All of this simply details the process of the investigation by the Ombudsman, and even that authority is limited over the members of government not private individuals. No Ombudsman has any authority to seize personal property, compel a private citizen to provide any information or testimony, nor to instruct the police to have possession of personal property on their behalf.

“Ombudsman to Investigate Incident At Niagara Council Meeting” was the title of a press release dated December 14th 2017. According to the press release provided by Linda Williamson, Director of Communications, there had been “several complaints related to the incident” received by the Ombudsman. In response SORT was unleashed, the Special Ombudsman Response Team, leaving images of suited individuals sliding down ropes from choppers in the sky. Somehow this vision is deflated like with the last paragraph of the release by Linda Williamson.

“The investigation will be completed as quickly as possible, Mr. Dube said. Under the Ombudsman Act, he may find the actions of a public sector body to be (among other things) contrary to law, unreasonable, unjust, oppressive, improperly discriminating or wrong – and make recommendations for improvement. Although the Ombudsman’s recommendations are not binding, they are almost always accepted.” These words leave a warm fuzzy feeling of confidence that everything is going to be alright now.

Linda Williamson was asked in an email dated February 16th 2018 whether or not the Ombudsman’s Office had requested Niagara Regional Police to maintain possession of the Haskell recorder. Her response was “our office cannot comment until our investigation is completed and the Ombudsman’s report is issued.” The secrecy of a report that is nothing more than a non-binding recommendation is almost comical.

Bill Sawchuk was asked if he had been questioned about what he saw that night in December of 2017, after all he was sitting next to Preston Haskell. Sawchuk’s response arrived with a cute cat emoji, “I was asked about what happened by both the ombudsman and police. The ombudsman has asked me not to talk about my interview until their report is issued.” Preston Haskell was asked if he had been questioned by the Ombudsman’s Office but he refused to answer.

At the end of all this nothing will happen and no one will face any consequences for their illegal actions. Regional staff simply stole personal property in plain sight and handed it to Niagara Regional Police, who are aware of the ownership of the property but claim to retain possession for Mr. Dube, the Ontario Ombudsman and his investigation. No laws had been broken by the owner of the property, namely a voice recorder, and the Ombudsman’s report is nothing more than a pompous folly.

Finally one thought pops up like teenage pimples. What would be the result if one was to take a handheld voice recorder, put a hat over it, and attempt to record a group of a dozen or more individuals speaking some 15 to 20 feet away?

What was this all really about?