Since I started looking at the circumstances surrounding the murder charge laid against Delta Police Constable Jordan MacWilliams the biggest question that remains unanswered is why.
Last week in a discussion with me on Global’s Unfiltered with Jill Krop, former Crown Counsel Sandy Garossino tried to explain the charge approval process as it is practiced in BC. In a nutshell, she explained that for a charge to be approved it must have a “substantial likelihood of conviction” and “be in the public interest.”
If a police officer abuses their authority then certainly it would be in the public interest to charge them. But in this case, MacWilliams was on a tactical call out with the Municipal Integrated Emergency Response team to a shots fired, hostage taking call.
After MacWilliams and two colleagues heroically affected the rescue of the hostage, a then employee of the casino who was arriving for work, a stand off ensued which lasted five hours. All the while Mehrdad Bayrami, 48, was waving a pistol he had already fired three times. In fact, he ejected the clip late in the incident, leaving one round in the spout and pointed at one of the ERT officers held up one finger and said, “I only need one.”
So, with the means and the stated aim, the police tried to arrest and disarm the suspect using a tactical, non-lethal approach using a flash bang and an ARWEN gun. As the “non-lethal” officers broke cover, they were covered by MacWilliams, designated in a ‘lethal’ sniper position covered by an armoured police vehicle.
When the flash bang went off and the ARWEN rounds missed, the suspect leapt back and the weapon moves toward the ARWEN operator. It’s at this point MacWilliams fired one shot which felled the armed suspect.
It’s impossible to see from that set of facts how any Crown Counsel could possibly perceive there’s a substantial likelihood of conviction. The Criminal Code gives the police the authority to use force in a number of circumstances but it holds police accountable for that use of force if it is deemed to be excessive. The suspect had a loaded weapon. He had fired three shots from that weapon on that day. He threatened police when he held up one finger and said what he did. He then moved the weapon towards the ARWEN operator. What could possibly be deemed excessive or unlawful in this?
Nor does it seem to be in the public interest to prosecute a police officer doing his duty to protect the public.
I should add that MacWilliams submitted a written statement to Crown late last Spring outlining what happened and why he pulled the trigger. His counsel even offered to address any and all questions the Independent Investigations Office might have. The IIO declined that offer.
So, this seems to tell us that there is not the same standard used by the Crown when it comes to prosecuting those we employ to protect the rest of us.
Why would that be?
Most likely it has everything to do with the 1998 death from exposure of Frank Joseph Paul, who was left intoxicated in an alley by a young VPD constable who didn’t know what else to do with him after Detox and the police jail sergeant both refused to take him.
That case culminated in Commission of Inquiry headed by William H. Davies, QC between 2009 and 2011 when he issued his final report.
In that Inquiry Davies looked at the allegations of conflict of interest against Crown levelled by the usual crowd of hand-wringers. He found there was no evidence of any conflict but wrote that when the possibility of a conflict was present, the case should be given to a lawyer in private practice to review or a prosecutor from another province.
That wasn’t done in this case.
Interestingly enough though, in that inquiry, then Director of Legal Services for the Criminal Justice Branch, Gregory Fitch, testified that while charges were considered he decided not to lay charges because “there wasn’t a substantial likelihood of conviction.”
So, what’s changed? Has the Crown suddenly decided that the rule of law and stated policy no longer applies for police?
We ask the police to do a job most of the population wouldn’t want to do. They see things you wouldn’t want to see. They deal with people with whom you would not want to come into contact. And we ask them to deliberately put themselves in harm’s way. And, if that’s not enough, we demand they be unfailingly polite no matter the abuse and invective that’s hurled at them.
Despite all of that, young men and women willingly take on that challenge. They know their actions will be reviewed and that in their lives, on and off duty, they are held to a higher standard than you are. So, how is it possible that when a decision to charge an officer engaged in the execution of his duty, and courageously I might add, a lower standard is applied by Crown?
This appears to be little more than a charade performed by those lacking in testicular fortitude who are afraid of the perpetually unfounded criticisms of the likes of the Pivot Legal Society or the BC Civil Liberties Association.
Bayrami made his choices that fateful day when he armed himself with a pistol, fired it at a woman he later took hostage and threatened police. MacWilliams made the choice that all members of his team would go home safely to their families that day. To be facing a charge of murder as a result is an absolute travesty of justice. For the Crown to proceed by direct indictment thereby not allowing the defence team to test evidence led at a Preliminary Hearing only exacerbates that travesty.
As one experienced homicide investigator said when we spoke about this case, “It’s like a Chinese Show Trial.”
Indeed it is.
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The MacWilliams case seems to be an instance of “goal oriented” Crown prosecutors suffering from some form of tunnel vision.
I fail to understand their motivation.
Unfortunately, there are other examples of this kind of mindset in our Country.
Christie Blatchford wrote an excellent piece on the David Cavanagh case in Toronto.
Cavanagh, a tactical team member, accidentally shot and killed a drug dealer after his MP5 submachine gun accidentally discharged during a struggle. The shooting was investigated by Ontario’s Special Investigations Unit who subsequently filed manslaughter charges in connection with the incident.
In February 2012, Prosecutors reviewed the file and upgraded the charges to 2nd degree murder.
In short, Ontario Court Justice Michael Block presided over the preliminary hearing and discharged Cavanagh on all charges indicating he believed the shooting was just what it was purported to be, a terrible accident.
The Crown was not satisfied with the decision and went on to launch several appeals.
The appeals were dismissed by the Courts who found, “the shooting was entirely unintentional and indeed totally accidental.”
It’s unfortunate that MacWilliams won’t be afforded the opportunity to have a preliminary hearing where I suspect the charges might have been dismissed.
I included the Cavanagh case in a story I wrote called “Police and Deadly Force – Are Cops Hell Bent on Killing people.”
I’ll include related links.
I totally agree with you James. I am familiar with the Cavanaugh case and the over-reach taken by the SIU. This has to stop. The police aren’t the bad guys and the politically correct segment of society has to stop treating them as such.
Excellent. Well said!
Mind boggle. This is a travesty of justice should the case move forward. Perhaps head crown counsel will re-review the matter and they will come to their senses.
I agree with you 100%. Due to the bleeding hearts of our judicial system (&yes, lack of testicular fortitude), our society is watching crime rates rise & convicted felons roam the streets after a slap on the hand. Judges must wake up soon or we will be seeing a lot more vigilantes; where will accountability be then folks??? Further, the poll above “Should the test to charge police be lower than the general public?” is a ridiculous & loaded question. We all know that police are held to a higher standard. We need to trust that the training they receive will prepare them for split second decision making. The duties they must perform to protect the public are inherently different from any other profession, thus they can’t be held to lower or higher standards, but standards that are deemed “appropriate” to “protect the public”. Not all jobs are created (or performed) equal! To the lawyers & judges that have their heads up their rectums…what if that police officer was protecting your daughter, wife, sister, mother… God keeps track boys!