“We don’t do anything by ambush here…” – Commissioner Oppal, October 27, 2011, Transcript, p. 134

The fourth week of the Missing Women Commission of Inquiry hearings ended oddly, with Commission Counsel Art Vertlieb, Q.C. opening the day by unexpectedly reading correspondence between him and I into the record for forty minutes.  The object of the exercise was unclear, but he established that I had been seeking full disclosure of documents and a witness list since early this year.  (At this point, we still have neither).  I responded by wondering out loud why Jennifer Evans of Ontario was given access to all the files last December, while I, the lawyer for the families of this missing and murdered women, wasn’t able to see them for another six months.  Mr. Vertlieb didn’t really have an answer to that question, saying, “I don’t know when she was given access to the documents” and “maybe different considerations applied” to her.  All very puzzling.

The hearing ended at about noon.  Next week, the first police witness, Vancouver Deputy Chief Doug LePard, is scheduled to testify.

The following is one of a series of occasional comments on my participation in the Missing Women Commission of Inquiry and includes my personal opinions, a form of expression protected by the Canadian Charter of Rights and Freedoms.  Every effort is made to ensure factual statements are accurate.

….

My associate Neil Chantler and I represent the families of 18 missing and murdered women at the Missing Women Commission of Inquiry.  One other family is represented by counsel, but I haven’t seen their lawyer in attendance since the first morning.  As a result, our task in trying to reveal the whole truth about why it took police nearly five years to arrest the man considered responsible for up to 49 murders is a most daunting, uphill struggle against the most powerful entities in our society, who seem intent on packaging the case neatly for public consumption.

Consider these facts: the RCMP, the Vancouver Police Department and the Criminal Justice Branch have been working on these matters since 1997.  They have access to virtually unlimited public funds and, when it became apparent in 2002 that there would be serious questions about the conduct of the investigations, they put their lawyers to work.  The VPD retained the services of Farris LLP, one of Vancouver’s most respected litigation firms, and the RCMP called upon lawyers from the Canada’s Department of Justice.  These lawyers have been poring over the files for almost a decade.

We were retained to represent families in October, 2010, and we initially acted on a pro bono (without fee) basis.  We immediately applied for participant status and the Commission conferred such status on our clients concurrently with the RCMP, VPD and CJB, in January, 2011 “in advance of the other applicants due to their clear legal interest in the subject matter of the Commission.”

In February, 2011, without notice to us, the Commission reached an agreement with the other three participants about the manner in which their records would be vetted, redacted and disclosed.  We did not get access to any documents at all until June of 2011.  When we finally saw the files for the first time, we could tell that huge numbers of records were being withheld.  We started requesting proper disclosure, and we are currently preparing a compendious application for full disclosure, which we hope will be heard soon.  Department of Justice lawyers say there are over 2 million pages of documents in “the Project Evenhanded database”, but we’ve been given access to perhaps ten percent of that, “only” about 200,000 pages.  (The number changes daily, as documents continue to arrive, sometimes in a trickle, sometimes in a flood, even though the hearings are well under way).

So, let’s look at the playing field:

The RCMP, the VPD and the CJB have each had teams of lawyers carefully reviewing all the files for several years.  Mr. Chantler, myself and a paralegal have had four months to access and digest the material, heavily redacted, over the last four months.

The RCMP, the VPD and the CJB seem to have as much public funds as they need for their legal teams.  While the provincial government has commendably granted the families of the missing and murdered women funding for legal assistance, it is tightly limited.

The Commission itself has a staff of at least fourteen people, including at least eight lawyers, and has reportedly spent $2 million since October 2010 in preparation for this matter.  They have also retained “Independent Commission Counsel”, Jason Gratl and Robyn Gervais, who are obviously working extremely hard, but they have no actual clients to serve.

When I attend the hearing each day, I look around at the desks in the room and see the Commission’s lawyers plus teams of lawyers representing the RCMP, the VPD, the CJB, Vancouver Police Union, a VPD member and a former VPD member.  Any interested observer can gauge how interested all these other lawyers are in ferreting out the truth by attending the hearings or reading the transcripts.

So, a level playing field?  You be the judge.

They say a lawyer must be able to think on his/her feet and have a thick skin.  I had to call on both resources first thing this morning when, quite unexpectedly, Commissioner Oppal took me to task in the public hearing over a few questions I had posed to witnesses back on Octber 18 and 19.  At the time, no one, including Commission Counsel Art Vertlieb, Q.C., had objected to the questions, so it was rather a surprise to be confronted and questioned about a few moments of testimony that occurred two weeks ago.

I did my best to defend my conduct, and my success, or failure on that front can be ascertained from a review of the transcript of this morning’s proceedings.  I certainly respect Commissioner Oppal’s opinions and have no difficulty with him fairly expressing them.  I will continue to strive to represent the interests of my clients, the families of 18 of the missing and murdered women, in a way that is entirely consistent with my professional responsibilities.

The morning continued fairly uneventfully with Mr. Gratl’s submissions on his application for protection of vulnerable witnesses.

The federal government’s application for a publication ban may be heard later today.

2:40 p.m. update:  The Commission has adjourned for the day, without any formal indication of what may occur tomorrow.  Presumably, the federal government’s application for a publication ban will be on the agenda.  We continue to prepare material in support of our anticipated application for full disclosure of relevant records, and for a brief adjournment to enable us to digest the documents in the event we are successful.  It seems like that may come on for hearing after the testimony of VPD Deputy Chief Lepard, who takes the stand Monday.

At 6:29 p.m. today, Commission Counsel suddenly advised us that tomorrow we ”should be ready to deal with the issue of protection of confidential information brought forward by Ms. Tobias (counsel for the Government of Canada) who is seeking a ruling on the matter.”

It is not clear to us whether the media has been adequately informed of the Government’s “application”, which is described in a letter dated October 31, 2011 and delivered to us yesterday.

The application, if granted, would ban the publication of a great deal of evidence anticipated to be tendered at the “public” inquiry into the conduct of the missing women investigations.  Interested members of the media, or their counsel, should be able  to obtain copies of the “application” from Commission Counsel.

Susan Davis, an advocate for sex trade workers who herself worked on Vancouver streets between 1990-1993, testified that a client raped her at knifepoint in the early 90′s.  She managed to escape and got the licence plate number of her attacker’s vehicle.  She phoned 911 and was told to wait for a Vancouver Police Department to attend on a specified corner.  Ms. Davis waited for an hour but no police attended.  She tried twice more over the next three weeks to report the crime but again, Vancouver police failed to respond.  Years later, when Robert William Pickton’s photograph in the media appeared, identifying him as a suspect in as many as 49 murders of sex trade workers, Ms. Davis said to herself, “that’s the guy”.

Ms. Davis described the harsh life of street sex trade workers.  She said there is a general sense of distrust of the police on the part of sex trade workers but noted that she has had four regular clients who were members of the VPD and RCMP.  Her testimony continues.