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Ontario

REPORT OF THE

NIAGARA REGIONAL

POLICE FORCE

INQUIRY

The Honourable W.E.C. Colter, Q.C.
Commissioner

feJ

GeTOfiiEflsi

PuhlK'-atioatf

REPORT OF THE

NIAGARA REGIONAL

POLICE FORCE

INQUIRY

The Honourable W.E.C. Colter, Q.C.
Commissioner

Ontario

Published by
Ontario Ministry of the Attorney General

Queen's Printer for Ontario, 1993
Cover Design: Michele Sardy

ISBN 0-7778-0872-2

Copies of this and other Ontario Government publications are available
from Publications Ontario at 880 Bay Street, Toronto. Out-of-town cus-
tomers may write to Publications Ontario, 50 Grosvenor Street, Toronto,
M7A 1N8. Telephone (416) 326-5300 or toll-free in Ontario 1-800-668-
9938. Fax (416) 326-5317. The hearing impaired may call: (416) 325-3408
or toll-free in Ontario 1-800-268-7095. MasterCard and Visa are accepted.
Cheques and money orders should be made payable to the Minister of
Finance. Prepayment is required.

The Honourable
W EC. Colter
Cooirnissioner

Lhonorable
W E C Colter

Commtssaire

Royal Commission of Inquiry Into
Niagara Regional Police Force

Commission royale d'enquete sur
la police regionale de Niagara

1 80 Dundas Street West
22nd Floor
Toronto. Ontario
M5G 1Z8

180. rue Dundas Quest
226 elage
Toronto (Ontario)
M5G 1Z8

416 965-2142

June 14, 1993

The Honourable David Christopherson
Office of the Solicitor General
25 Grosvenor Street, 1 1th Floor
TORONTO. Ontario
M7A 1Y6

Dear Minister:

Having been appointed by Order in Council 751/88, dated the 25th of
March 1988, pursuant to the Public Inquiries Act, to perform the duties
set out in the Order in Council, I now submit my report.

Yours very truly.

vol

W.E.C. Colter
Commissioner

CONTENTS

Acknowledgements xi
Foreword xv

INTRODUCTION

The Region xvii

Policing the Region xvii

The Work of the Inquiry xviii

Public Hearings xix

Consultation Process xx

Events Leading to the Inquiry xxi

PART I - INTERNAL ADMINISTRATION

1 Hiring and Promotion 3

(1) Overview of the hiring process 3

(2) The John Gayder episode 4

(3) Analysis of the NRPF hiring and promotion

process 1 9

2 Property 3 1

(A) STORAGE AND DISPOSAL OF PROPERTY 31

(1) The regulations 31

(2) The facilities 36

(3) Weapon trades 36

(B) HANDGUNS REGISTERED TO JAMES GAYDER 40

(1) Guns received from Chief Brown 40

(2) Guns received from Chief Shennan 41

(3) Guns received from Gayder' s grandfather

and uncle Jack 41

(4) Guns previously registered to third parties

parties unknown to James Gayder 41

(5) The Welland guns 42

(6) The Lamonte gun 44

(7) The Tom and Fern gun 46

(8) The Ross guns 48

(9) The allegations of D.B. 50

(1) Firearm storage facilities in the 1960s

and 1970s and closet 374 58

(2) The Caine gun 62

(3) The Chiavarini guns 62

(4) Untraceable guns 63

(5) The museum 64

(D) OTHER GUN ALLEGATIONS 67

(1) The Remington Woodmaster rifle 67

(2) Guns with obliterated serial numbers 67

(3) The DeMarco gun 70

(4) The Onich allegations 71

(5) The Lorenzen allegations 74

(6) The Greenfield gun 75

(7) Sergeant Z 76

(E) OTHER PROPERTY ALLEGATIONS 78

(1) The Key diamonds 78

(2) The silver tea service 78

(3) Radios 80

(4) The trailer hitch 81

(5) The Reintaler knife 82

(6) Lawrence Quattrini 82

(7) Gayder and two bicycles 85

3 Force Resources 87

(A) QUARTERMASTERS STORES 87

(B) THE FORCE GARAGE 89

(1) Repairs to privately owned vehicles 90

(2) The Parnell paint job 90

(3) The Parnell tire switch 93

(4) Reginald Ellis and alleged kickbacks 96

(D)

IMPUGNED VEHICLE PURCHASES BY FORCE

MEMBERS

101

(1) Rodney Marriott - 1979 Dodge

101

(2) Clayton Marriott - 1982 Dodge Aries station

wagon

101

(3) John Stevens - 1976 Ford

102

(4) Ronald Bevan

103

(a) 1973 Matador

103

(b) 1974 Volkswagen

103

104

(5) Michael Miljus

105

(a) 1976 Plymouth Fury

105

(b) 1979 Ford Fairmont

107

108

(E) SPECIAL FUND 110

Recommendations (Hiring) 112

Recommendations (Property) 114

PART II - PREVIOUS INVESTIGATIONS AND
OTHER ALLEGATIONS

1 Previous Investigations 119

(A) THE LANDMARK INQUIRY 119

(B) THE 1984 OPC INVESTIGATION 123

(1) The DeMarco allegations 124

(2) The Swart allegations 126

(3) Allegations raised by the Standard 126

(4) The DeMarco gun 127

(5) Citizens' complaints process 129

(6) Citizens' complaints at the Board level 129

(7) Discipline and supervision 129

(8) Index of complainants and conclusions 129

(9) Gayder's guns 130

(D) THE OPP WIRETAP INVESTIGATION 145

2 Other Allegations 151

(A) GITTINGS AND L. AND D. 151

(1) The reduced sentence allegation 151

(2) The biker cheque allegation 154

(3) Miscellaneous rumours 155

(B) PROJECT PROVE 156

(1) The Leonard Hotel rumour 158

(2) Schenck farm 159

(D) VANDERMEER DEATH THREAT 161

(E) JOHN ADAMS AND OPERATION SKYLAB 165

(F) ALLAN MARVIN 168

(G) THE PETER KELLY MATTERS 170

(1) The transfer 170

(2) The boat conspiracy 173

(H) EDWARD TYPER 175

(1) The screwdriver incident 175

(2) The donut shop incident 176

(3) Obstructing justice 177

(4) The obtaining of Mrs. C.'s address 178

(5) Counselling of an indictable offence 179

(I) RUMOURS OF INTELLIGENCE LEAKS 180

(J) SHERRIFF'S CONCERNS RE WALSH AND G.H. 183

(K) MURRAY G A YDER SURVEILLANCE 185

(L) ORGANIZED CRIME 186

3 The Problem 189

Recommendations 191

PART III - FORCE MANAGEMENT

1 Amalgamation/Organization 195

Recommendations 204

2 The Crisis of Early 1987 -

The Battle for Control 205

3 The Special Fund Investigation 221

4 Internal Investigation Team 223

(A) FORMATION AND PURPOSE 223

(B) METHODOLOGY 226

(1
(2
(3
(4
(5
(6
(7
(8
(9

The Parnell paint investigation 226

Closet 374 227

Tiie Parnell tire investigation 228

The Chiavarini guns investigation 229

The Welland guns investigation 230

The "California gun" investigation 233

Schenck farm surveillance 235

Aggressive witness interviews 236

The focus on Gayder 237

(10) The use of lawyers 240

Recommendations 252

5 Sergeant VanderMeer 253
Recommendations 263

6 The Call for an Inquiry 265

7 Role of the Board 277

(A) THE BOARD - 1970 TO 1987 277

(B) THE BOARD AND THE INQUIRY 288
Recommendations 296

8 Report on the Next Chief 299

Recommendations 302

PART IV - THE FORCE AND ITS IMAGE

1 Public Confidence 305

2 Media Relations 311

Recommendations 321

3 Morale 323

Recommendations 326

4 Public Complaints

327

5 Labour Relations

Recommendations

6 Recycled Rumours

Recommendations

333
336

337
341

PART V - FINIS

1 Why So Long? -

Problems and Frustrations of an Adversarial Inquiry

2 Conclusions

APPENDICES

Appendix A

Order in Council

Appendix B

Chronology

Appendix C

Participants granted standing

Appendix D

Persons who appeared as witnesses

Appendix E

List of exhibits

Appendix F

Consultants

Appendix G

Inquiry staff

Appendix H

Counsel

Appendix I

Rulings

Appendix J

Abbreviations

345
351

355
361
396
397
399
450
451
453
457
595

ACKNOWLEDGEMENTS

The conduct of the long and complicated hearings that constituted this
Inquiry and the preparation of this report could not have been ac-
complished without the dedicated assistance and loyal co-operation of the
members of the Commission staff. Due to the length of the hearings, there
were a number of changes in personnel because of prior commitments and
from time to time a sudden influx of taped interviews from the Commission
investigators required the temporary employment of additional transcribers
and other assistants. The resulting long list of men and women who con-
tributed so much to the Inquiry makes it impractical to single out each per-
son for comment, but, without exception, every one was co-operative and
helpful.

Nevertheless, I could not, in good conscience, leave unheralded
some whose contributions require special recognition.

My Commission counsel, Tony Kelly, Q.C. and Ron Collins, were
forced to virtually abandon their law practices and work day and night in
marshalling and presenting before the Inquiry the massive volume of evi-
dence produced by the Commission investigators. This they did, thoroughly
and effectively, often under difficult circumstances, but pleasantly and with
frequent touches of humour to relieve the tension. Law clerks, Mary Anne
Giancola and Marg Watt were uncanny in their ability to quickly produce
from the computer an excerpt of the evidence from any particular day, or
to collate all the references to any particular subject spread out over 247
volumes.

As Commission Administrator, Thomas Millar, a former Supreme
Court of Ontario registrar, and the veteran of seven previous Inquiries, set
up the organization of the Inquiry, prepared the annual Commission budget,
dealt with the government agencies and made use of his extensive ex-
perience to relieve me of the many administrative headaches that inevitably
arose. My Administrative Assistant, Eve Bill, suffered through my learning
pains while introducing me to the wonderful world of computers, which
simplified immeasurably my writing of this report. It was she who edited
my efforts, corrected the many glitches, and put the report in proper shape
for printing, never audibly expressing her frustration over my frequent in-
terruptions with last minute amendments. Michele Sardy was not only an
efficient Secretary, but was always ready with sympathetic support and
cheerful encouragement. Ishmael Doku, Commission Librarian, and Eliz-
abeth Sinclair and Eric Stine, Data Processing Technicians, were instru-

xii Ackno\vledgements

mental in making it possible to retrieve any item of information from the
voluminous Inquiry records, transcripts and exhibits.

The Metropolitan Toronto Police Force generously consented to se-
cond to the Inquiry seven of their best investigators. To then-Inspector Stan
Shillington, then-Staff Sergeants Rocky Cleveland, Winston Weatherbie,
Robin Breen and Bob Ellis, Sergeants John Barbour and Rich Baker and to
Detective Sergeants Don Sangster and Bob Montrose, who replaced Staff
Sergeants Cleveland and Winston Weatherbie late in the Inquiry, I express
my deep gratitude for the thorough and competent manner in which they
investigated the myriad of allegations and other matters which were referred
to them, or which surfaced during the course of their investigations.

In St. Catharines, Marilyn Wellington was Office Manager of the
Commission office in the Court House during the lengthy hearings there,
and handled the hearing room arrangements, marshalled witnesses, acted as
a directory for the public and media reporters, and performed a multitude
of other duties in what were frequently minor crisis situations, with ef-
ficiency and aplomb. Patty Laurin was Commission Registrar until her un-
timely death on August 27, 1990. Patty was loved and respected by
everyone, with good reason. Not only was she invariably good natured and
ever ready to go out of her way, on her own time, to help locate for
counsel, or any one, exhibits and transcripts, but I say with complete
sincerity that she was the most efficient and conscientious registrar I have
encountered during my nearly 30 years on the bench. When a counsel
started to ask for an exhibit, she would produce it before the counsel
reached her desk. Documents she thought I might require during a witness's
testimony were always on my desk each morning. Gwen Hill, Assistant
Usher and Judy Taylor, Receptionist were always prepared to "go the extra
mile" in serving the public and all of us involved in the hearings.

Cy Cresswell, a great gentleman, was my Usher. A retired police-
man and dedicated officer of the Canadian Legion, Cy knew everyone in
the St. Catharines area and was affectionately respected by all. He presided
over the Hearing Room firmly but with characteristic good humour, and no
one could have been more helpful and concerned for my comfort and
well-being during the protracted and often stressful sessions in St. Cath-
arines. Cy died suddenly on May 23, 1992, and I shall always remember
him as a close and loyal friend.

I know that most of those who participated in this Inquiry (including
the Commissioner) assumed at the outset that they were entering upon an

Acknowledgements xiii

exercise that would last a few months, rather than one that would virtually
amount to a career, and I appreciate their dedication in patiently and
good-naturedly completing the job. It is regrettable that, with the completion
of this report, I will inevitably lose contact with many of those who have
been so helpful and have become friends, and I take this opportunity of ex-
pressing my personal gratitude to them all.

FOREWORD

In this report, I have not attempted to examine policies of police forces in
general, nor to make recommendations for the future of any force other than
that of the Niagara Regional Police Force (NRPF). I interpret my mandate
as being to examine only the problems within the NRPF cited in my terms
of reference. Those terms were broad enough to engage the attention of the
Commission for the better part of four years. However, the problems which
I encountered in the NRPF were in many instances sufficiently generic in
nature that I hope some of my findings and recommendations will be of as-
sistance to police forces across the province.

I have avoided naming names of persons who were not members of
the NRPF except where it was necessary in order to dispel rumours. If the
use of pseudonyms for such persons at times makes it difficult to follow the
text, I apologize.

At the first hearing of the Inquiry held on June 27, 1988, I ex-
plained my understanding of my mandate as follows:

"What I am about to say is only my present idea and it is subject
to later submissions by counsel, but as I interpret the terms of
reference, the purpose of the commission is not to assign blame
for misjudgmcnts or even negMgence that has occurred in the
operation and administration of the Force over the full 14 years
of its existence, although that may well be an incidental part of
the Commission's findings. Rather, one of the main purposes is
to publicly air the events that have given rise to many rumours of
mismanagement and even of corruption or criminal conduct and
from the lessons learned, to come up with a report containing
recommendations that would help the administration to avoid such
problems in the future."

Because of the length of this Inquiry, ranks of some of the officers
mentioned may have changed, but their rank at the time of the event in
question may have some significance. I accordingly have used, to the best
of my recollection, the rank the officer held at the time. Some statistics and
procedures may also have changed since the conclusion of the evidentiary
hearings, but I have attempted to update them.

A basic problem has been that, by its mandate to examine the oper-
ation and administration of the NRPF since its creation on January 1, 1971,
the Commission frequently dealt with events that occurred long ago. Years

xvi Foreword

after an event, various witnesses recall various happenings in various ways,
yet all may be honest and truthful.

In order to carry out its mandate the Commission has of necessity
examined the historical events which led up to the call for a public inquiry.
This required the Commission to examine a vast body of evidence, oral and
documentary, accumulated over the lifetime of the amalgamated Force, in-
volving, amongst other matters, a seemingly endless list of allegations of
misconduct against certain members and ex-members of the Force. This ex-
amination generated approximately 48,000 pages of evidence, 500 exhibits
of which many ran to hundreds of pages, and many thousands of pages of
interview transcripts and documents which were delivered to parties but
were not made exhibits.

By my terms of reference, and by judicial precedent, I am prohibited
from making any fmding of criminal or civil responsibility, and no such
finding should be inferred from any of my remarks. Such a prohibition is
necessary because a commission may admit evidence not given under oath,
and the ordinary rules of evidence which provide protection against such
matters as hearsay do not apply to public inquiries. I am interested in im-
proper conduct only if it had some detrimental effect upon the operation or
administration of the Force or contributed to a loss of confidence in the
Force on the part of the public.

INTRODUCTION

THE REGION

The Niagara Region, the largest of the nine regional municipalities in
Ontario, covers some 1,850 square kilometres and has a population of
approximately 370,000 people. The region consists of all of the Niagara
Peninsula situated between Lake Erie and Lake Ontario east of a line drawn
between the two lakes a few miles east of Hamilton. Separating the region
from New York State to the southeast is the Niagara River, including Ni-
agara Falls. The region is bisected by the Welland Canal. The geographic
centre of Niagara is 123 kilometres from Toronto and 46 kilometre's from
Buffalo, New York. There are significant industrial and agricultural areas
in Niagara Region, and it is a major tourist area attracting more than 14
million visitors each year, most of them during the summer months.

The Regional Municipality of Niagara was incorporated in 1969 un-
der authority of Bill 174 of the Government of Ontario, entitled "an Act to
establish the Regional Municipality of Niagara." The region officially came
into existence on January 1, 1970, with the unification of the counties of
Lincoln and Welland. Up to that time it was the only one of the new re-
gions to embrace two counties. Along with regionalization, the 26 original
municipalities were reduced to 12; namely the cities of St. Catharines
Niagara Falls, Welland, Port Colborne, and Thorold, the towns of Fort Erie'
Grimsby, Niagara-on-the-Lake, Lincoln and Pelham, and the townships of
Wainfleet and West Lincoln.

POLICING THE REGION

Coinciding with the implementation of regional government, on January 1
1970, the Niagara Regional Board of Commissioners of Police (Board) was
established to coordinate the unification of municipal policing resources in
the region. Every member of a municipal police force within the new re-
gion's boundaries officially became a member of the NRPF when it, the
first regional municipal Force outside Metropolitan Toronto, became oper-
ational on January 1, 1971.

Eleven municipal police forces, ranging in size from 5 to 134, were
amalgamated; namely Beamsville, Fort Erie, Grimsby Town, NiaaaraFalls
Niagara-on-the-Lake, Pelham, Port Colborne, St. Catharines, Thorold Wain-
fleet and Welland.

XV Hi Introduction

At the outset, the new Force had a combined strength of 444 (396
police officers plus 48 civilians) and was responsible for the provision of
police services throughout the region, although the Ontario Provincial Police
(OPP) continued to police some rural areas until October 1, 1977. Other
forces remain involved in the policing of Niagara Region: the Royal Can-
adian Mounted Police (RCMP) regarding matters of federal jurisdiction, the
Ontario Provincial Police (OPP) regarding provincial highways, and the
Niagara Parks Commission maintains a small force to patrol its property in
the vicinity of Niagara Falls.

As of June 6, 1992, the NRPF had a strength of 592 police officers
and 230 civilian staff. The Force is organized into three divisions: St.
Catharines, Niagara Falls and Welland, each of which has a smaller de-
tachment; these are Grimsby, Fort Erie and Port Colborne, respectively, as
well as a storefront office in each of Smithville, Niagara-on-the-Lake and
Thorold. Headquarters functions are housed with Division 1 in St. Cath-
arines. In addition, the Force maintains other sites in the region to house
support units.

THE WORK OF THE INQUIRY

According to a March 21, 1987, article in the Guardian Express, a Niagara
Falls newspaper, as early as 1972 there were calls by Niagara area poli-
ticians and media for a public inquiry into rumours of problems within the
NRPF.' The rumours and demands for an inquiry escalated over the years,
culminating in a March 25, 1988, provincial Order in Council creating this
Commission of Inquiry."

During May of 1988, notice of the Inquiry was published in seven
daily and seven weekly newspapers, inviting written submissions from in-
terested individuals and groups, and also announcing the intention of
holding public hearings and making available copies of the terms of ref-
erence. Following publication of the notice, some 52 letters and phone calls
raising a variety of concerns were received and acted upon by the Com-
mission.

See p. xxi.

See Appendix A.

Introduction xix

At the first session of the public hearings on June 27, 1988, the
Commission entertained applications for standing and considered certain
matters concerning the procedures and organization of future hearings. By
a ruling issued by the Commission on July 6, 1988, guidelines for the hear-
ings were established and standing was granted to counsel for each of the
following parties: the Board; the Chief of the NRPF; the NRPF; the Niagara
Region Police Association (NRPA); former Chief of Police James A. Gay-
der; Sergeant Cornells VanderMeer; the Ontario Police Commission (OPC)
and the Ontario Provincial Police (OPP). Standing was denied to three pri-
vate individuals, who complained of police conduct but had no direct in-
terest in the terms of reference per se. On subsequent occasions, standing
was also granted to counsel for Sergeant Edward Typer, Staff Sergeant
Michael Miljus, former Sergeant Edward Lake, ex-NRPF mechanic Reg
Ellis, Staff Superintendent James Moody, former Staff Sergeant Joseph
Newburgh, Sergeant Gerald Melinko, Constable George Onich, civilian
members Billie Hockey and Carol Berry, former Staff Sergeant Allan Mar-
vin, Sergeant Ronald Peressotti and Deputy Chief Peter Kelly. Constable
Lee Rattray was granted standing to act for himself.^

Funding for counsel, out of the Commission's budget, was granted
to 16 parties at the same rate as allowed for Legal Aid.

PUBLIC HEARINGS

With the exception of one session in January, 1989, when, at the request of
Board counsel, the weapons from the closet were publicly displayed in a
Commission hearing room in Toronto, and three days of evidence in the
Toronto hearing room in May, 1992 due to the unavailability of a hearing
room in St. Catharines, the public hearings were held in Courtroom 6, on
the second floor of the Courthouse at 59 Church Street, St. Catharines.
Between June 27, 1988, and June 30, 1992, there were 247 days of hear-
ings, which generated some 48,000 pages of transcript of evidence, involved
testimony from 165 witnesses and received 506 exhibits. The last of a series
of written submissions from counsel were received on July 15, 1992. In to-
tal, more than one and one-half million pages of transcripts of evidence and
of interviews of prospective witnesses and copies of exhibits were dis-
tributed to those counsel who attended the hearings on a regular basis.
Some 46 different counsel appeared from time to time representing various
parties, but many of these appeared only briefly for a limited purpose. Al-

' For a complete list of counsel, see Appendix H.

XX Introduction

though at times as many as 15 counsel might be present, for most of the
sessions, the number of counsel attending varied from 7 to 10. Apart from
some in camera segments, the results of which were later announced pub-
licly, all hearings were open to the general public including the media and
were broadcast by Maclean-Hunter to its approximately 80,000 cable tele-
vision subscribers in the region up to the end of the evidentiary sessions on
November 20, 1990. Both electronic and print media at the local and
national levels provided extensive coverage of the proceedings at the In-
quiry on a regular basis.

CONSULTATION PROCESS

In order to expedite the inquiry process and draw upon existing know-
ledge and experience in relevant fields, the Commission contracted a num-
ber of experts to examine various aspects of its mandate. Several terms of
reference were addressed in this manner, and mechanisms were put in place
to ensure all interested parties had an opportunity to put forth their views
on these subject areas. Parties were invited to submit position papers on the
subject areas prior to and following their attendance at a series of work-
shops held at the Holiday Inn, St. Catharines, on November 6, 7 and 8,
1989. These workshops, chaired by Professor Anthony Doob of the Univer-
sity of Toronto's Centre of Criminology, provided a forum for informal dis-
cussion and exchange of views not only with the consultants, but amongst
the interested parties. In order to encourage uninhibited and free-wheeling
discussion and/or criticism, only the parties, their counsel and persons who
had indicated an interest in providing some input into the workshop were
invited to attend. While the Commission did not rely on this process to es-
tablish or conclude any issues of fact, the material generated proved in-
valuable background information and complemented the proceedings in the
courtroom.'^

These excellent reports of the consultants are too lengthy to allow
inclusion as Appendices to this report, but copies may be obtained by
applying to: Office of the Solicitor General, 11th Floor, 25 Grosvenor
Street, Toronto, Ontario, M7A 1Y6.

For a complete list of consultants, see Appendix F.

Introduction xxi

EVENTS LEADING TO THE INQUIRY

Almost from its inception, the new Force was beset by rumours of mis-
management, misconduct and even corruption. An article in the March 21.
1987, edition of the Guardian Express, a Niagara region newspaper, in
commenting on the fact that ''some local politicians" were calling for a pro-
vincial inquiry into the Force, noted that this was not a new issue, since
"they have been calling for inquiries into the force's conduct since 1972."
The article went on to point out that in January 1972 a district alderman
unsuccessfully called for an inquiry into the personal use of cruisers by
off-duty detectives, and that at about the same time a Deputy Chief had
faced nine Police Act charges relating to his use of a militaristic type of
discipline against officers of one of the new detachments, who were not
accustomed to this in their former small force. Although this was probably
only a symptom of the "growing pains" of a new regime, and the charges
were dismissed by the judge to whom the trial of the charges was referred,
the matter resulted in a good deal of adverse publicity.

Other evidence indicated that members of detachments which had
formerly been local independent forces continued in their loyalties to their
detachment, rather than to the regional Force as a whole. Under the legis-
lation setting up the regional Force, no police officer could be transferred
more than five miles from his station as it was at the time of regional-
ization, and in July, 1973, the NRPA won a Supreme Court ruling prevent-
ing the proposed transfer of certain officers from one division to another.

The public's confidence in the Force was not advanced by the May
11, 1974, drug raid on the Landmark Motel in Fort Erie, involving the
strip-searching of 36 women and 9 men, a raid for which the planning was
poor and the execution disastrous. A public inquiry followed.''

By the early 1980s, the media were frequently reporting instances
of alleged irregular or improper conduct on the part of members of the
Force at all levels. In October of 1983, Mel Swart, the member of the
provincial parliament (MPP) for Welland/Thorold, raised a question in the
legislature regarding the appointment of James Gayder as Chief of the
NRPF while he was the subject of an internal investigation into allegations
that he had delivered an unregistered handgun to one Mark DeMarco, a

See page 1 19.

XX a Introduction

local businessman who had had several brushes with the law.^ In the same
month, the Solicitor General ordered the OPC to investigate a series of
allegations of misconduct on the part of the Niagara Force raised by Mr.
Swart, and over 50 allegations made by Mark DeMarco who had been
charged with possession of an unregistered weapon.^ A 240-page report
was delivered to the Solicitor General on May 7, 1984, but only a 19-page
summary was made public.^ On August 7, 1984, Mr. Swart released an
open letter to the Solicitor General stating that he (Swart) had requested a
public inquiry into the NRPF, but got only the OPC investigation. He ex-
pressed strong dissatisfaction with the results.

During the fall of 1984, the Canadian Broadcasting Corporation
(CBC) morning radio news carried a series of reports by investigative
reporter Gerry McAuliffe, all critical of the NRPF. In December, 1984, the
chairman of the Police Board resigned, stating, according to the Guardian
Express article: "I have tried to ensure the new board got on with the job
it is appointed to do, but because of interference beyond my control, the
current board, unfortunately, has had to deal with previous board dealings,
dealings which were not the business of the new board."

News articles critical of the Force continued to appear, reciting com-
plaints of graduates of Niagara College's Law and Security course that the
NRPF hiring practices allowed relatives of police officers to be favoured in
hiring sessions; commenting on the resignation of a senior officer after
being charged for consorting with prostitutes; and reporting the allegation
of a coroner that NRPF officers seized handguns used in suicides and sold
them for profit.^ During the summer of 1986 a series of articles about nep-
otism in the Force'° appeared in a local newspaper.

On January 14, 1985, following meetings with Sergeant Cornells
VanderMeer, a member of the NRPF, the OPP commenced a secret investi-
gation of allegations, inter alia, that some senior officers of the NRPF had

" See p. 70.
' See p. 123.
' See p. 130.
" See p. 73.
'" See p. 4.

Introduction xxiii

connections to organized crime rings." Commencing on February 11,
1985, the OPP was also assigned to investigate rumours of illegal wiretaps
of a telephone owned by the above-mentioned Mark DeMarco. The latter
investigation was not concluded until the spring of 1986, and a full
173-page report, finding no impropriety, was presented to the Solicitor
General. However, this report was not announced until the other related
OPP investigations were finalized and a December 4, 1986, press release
summarizing the investigations was all that was ever made public.'^

These investigations were conducted privately. No detailed reports
of the results were published, and no charges were laid, although, as already
noted, a summary of the OPC report, finding no misconduct, was tabled in
the legislature, followed by public criticism of the lack of specifics. It was
common knowledge that investigations were ongoing, and the lack of pub-
lication of full particulars of the results only increased the suspicions of the
public created by the continuing rumours of improprieties.

Gerry McAuliffe, of the CBC, was not satisfied with the way in
which the OPP investigation was proceeding, and commencing on Sep-
tember 30, 1985, the CBC aired six radio reports strongly suggesting that
the NRPF was engaging in illegal wiretaps, and calling for a public inquiry.
This led to similar demands in the legislature, and Bob Rae, then leader of
one of the opposition parties, wrote to then-Premier Peterson suggesting a
public inquiry into the NRPF be called to look into the McAuliffe alle-
gations.

Peter Moon, a reporter for the Globe and Mail, had met Vander-
Meer in July 1985, and VanderMeer told him of problems he was having
with one C, an alleged criminal, and of his suspicions that a NRPF sergeant
was improperly involved with C.'^ Moon wrote a long article in the Globe
and Mail in October, 1985, about problems in the NRPF, complete with
photographs of VanderMeer, C, and some senior officers of the Force.

In the spring of 1986, Mai Woodhouse, a local alderman, received
through the mail a number of gun registration certificates in the name of
Chief Gayder, with certain areas circled in pencil. A friend of Woodhouse,

" See Project Vino, p. 137.
'^ See p. 145.
'^ See p. 179.

XX iv Introduction

knowledgeable about guns, advised him that the circles indicated some ir-
regularity in the certificates, and Woodhouse sent the certificates to the
Solicitor General. Having received no reply from the Solicitor General,
Woodhouse presented a notice of motion to the regional council on August
7, 1986, calling for a public inquiry into the NRPF. Woodhouse then pre-
pared and circulated a package of material supporting his position, in-
cluding the Peter Moon Globe and Mail articles of October 1985, a series
of articles from The Standard (St. Catharines), a copy of the OPC investi-
gation press release, and a copy of Bob Rae's note to Peterson and letters
from Mel Swart calling for an inquiry. Although the motion was defeated
by regional council, it received considerable publicity through the media.

Meanwhile, on January 15, 1986, Mrs. Denise Taylor was appointed
to the Board by the province. She interviewed a number of community
leaders about the Force, and became concerned about rumours of illegal
wiretaps, despite the OPP report dismissing the allegation. Mai Woodhouse
gave her copies of the Gayder gun certificates, which increased her con-
cerns. On August 13, 1986, a newspaper article in the Tribune (Welland)
quoted Mel Swart's criticisms of the OPP investigation, and on October 22,
1986, Mrs. Taylor met with Mr. McAuliffe, who told her he "had seen un-
equivocal proof that illegal wiretaps were taking place" and predicted that
the OPP would find illegalities that would result in Chief Gayder's resig-
nation.

Mrs. Taylor testified that by the fall of 1986 she had received a
number of serious allegations about the Force and "did not know where to
turn." She approached the local member of the legislature in an attempt to
arrange a meeting with the Solicitor General, and on January 15, 1987, met
with the Solicitor General and informed him of the allegations she had re-
ceived, and of what she perceived as attempts to intimidate her and force
her to back off on the expression of her concerns. According to her notes
of the meeting, she told him that she felt she could not go to the Board
because "I concluded that they could not be trusted with this information
at this point," and that she could not go to Chief Gayder partly because "he
had lied to me" about an investigation into child abuse, and partly because
she did not want to divulge her sources.

For his part, on February 3, 1987, Gayder met with a member of the
OPC, Kenneth Shultz, concerning his problems with Mrs. Taylor, and
Shultz said he would speak to the Chairman of the Commission with a view
to obtaining a hearing under section 56 of the Police Act regarding Mrs.
Taylor, and apparently referred to a similar case in which a chairman

Introduction xxv

was replaced. This hearing never materialized, due to Gayder's sus-
pension on February 5.'"*

It is apparent that, almost from the date of her appointment to the
Board, tension developed between Mrs. Taylor and Chief Gayder, and
escalated over the course of the year. On January 8, 1987, Mrs. Taylor
was elected chairman of the Board. During the summer of 1986, Chief
Gayder's son, John, applied to join the Force.'' He was not hired at the
September, 1986, hiring procedures, but was placed on a reserve list. At
a hiring session early in January, 1987, he, amongst others, was rec-
ommended to be hired. Mrs. Taylor concluded that the Chief had mis-
led the Board regarding his son's application, and on February 5, 1987,
she, as Chairman of the Board (Chairman), charged Chief Gayder under
the Police Act with two counts of corrupt practice and one count of de-
ceit. The Board then suspended Chief Gayder from duty. Deputy Chief
John Shoveller was appointed Acting Chief, and on February 17, 1987,
he ordered an internal investigation into allegations of misconduct
against Mr. Gayder and other Force members.'^ Acting Deputy Chief
James Moody was placed in charge of that investigation.

On February 23, 1987, Moody discovered some 229 handguns,
shotguns and rifles, and 602 other weapons such as knives, brass
knuckles and martial arts devices, as well as police records and files, in
closet 374, a locked closet located in the executive area of Headquarters
near former Chief Gayder's office.'^ Chief Gayder and his secretary
had possession of the only keys to the closet, although the existence of
the closet and the fact that it contained weapons was quite widely
known. On March 6, Mrs. Taylor, Acting Chief Shoveller and Moody
met with local MPP Mel Swart to view the weapons. Later the same
day, at Sergeant VanderMeer's invitation, Peter Moon of the Globe and
Mail attended room 230, in the presence of Shoveller, Moody, New-
burgh and VanderMeer to see the contents of the closet. On March 9, an
article by Moon appeared in the Globe and Mail, describing the seizure

"Seep. 11.
" See p. 4 ff.
"■ See p. 223 ff.
" See p. 227.

xxvi Introduction

"of about 500 offensive weapons from personal lockers at the force's St.
Catharines' headquarters," and stating that Acting Chief Shoveller felt
that a public inquiry would prevent the Force from continuing its in-
vestigation "that has already produced evidence of various improprieties
by some of its officers" and which he expected would result in charges
against some members.

With nine further Police Act charges pending, based on alle-
gations of conversion of Force property to his own use as a result of the
finding of the weapons, Mr. Gayder retired from the Force on March 4,
1987. Accordingly, the Police Act charges were not pursued. ^^ The in-
ternal investigation, nevertheless, proceeded and during the months
which followed, the Internal Investigation Team (IIT) looked into nu-
merous allegations and prepared a number of volumes of reports. There
having been a prior undertaking by Acting Chief Shoveller to representa-
tives of the Ministry of the Solicitor General not to lay charges without
consulting a Crown attorney, six volumes of these reports, mainly con-
cerning Mr. Gayder, were delivered in June to the Ministry of the
Attorney General for advice as to the laying of criminal charges. Later,
four more volumes relating to Mr. Gayder and other Force members
were forwarded to the Ministry. William Wolski, a Crown counsel with
the Ministry, was assigned the task of reviewing the reports, and pre-
paring a recommendation for the Attorney General.

Meanwhile, the internal investigation continued. On October 5,
1987, not having received a written reply from the Ministry, Mrs. Taylor
wrote to then-Assistant Deputy Attorney Douglas Hunt strongly in-
dicating her concern over the delay. This resulted in a meeting on
October 15 at the offices of the Ministry of the Attorney General, con-
sisting of Hunt, Wolski, other members of the Ministry, Chief Shov-
eller and members of the IIT. Hunt advised them that the Ministry was
recommending against ihe IIT's submission that criminal charges should
be laid against Mr. Gayder, and they were given a copy of Wolski's
memo examining the allegations, which came to the same conclusion.

The IIT were extremely frustrated by this negative recom-
mendation, and immediately reported to Mrs. Taylor, who was equally
upset. The following morning the IIT met Shoveller and went through

See p. 13.

Introduction xxvii

Wolski's report to Hunt, rebutting each of its conclusions, and Van-
derMeer prepared a brief for the Board. On receipt of the brief, the
Board decided to seek independent legal advice, and instructed Board
counsel to obtain opinions from three criminal lawyers.

On November 5, 1987, the Board met to consider the three legal
opinions and decided to ask the Solicitor General to call a "public
inquiry into allegations of improprieties involving NRPF officers as in-
vestigated." A letter to this effect was sent to the Solicitor General.
VanderMeer was asked to attend this meeting, and was questioned by
Board counsel about the guns found in the closet outside Gayder's
office. On November 8, Mrs. Taylor and Sergeant VanderMeer met with
a local MPP to solicit his help in obtaining a public inquiry. On hearing
of the meeting. Chief Shoveller was upset and ordered VanderMeer not
to have "... any further meetings with politicians."'^

On November 13, 1987, the Solicitor General replied to the
Board's letter, cautioning the Board not to get involved in operational
matters, pointing out that decisions as to the laying of charges was ex-
clusively the Chief's, and that any decision on holding an inquiry was
premature pending the Chiefs decision. On November 23, Chief Shov-
eller advised the Board that he had reconsidered the entire matter in the
light of the Attorney General's recommendations, and would not be lay-
ing any charges. The Board then passed a resolution calling for a public
inquiry "into allegations of improprieties within the NRPF and the pro-
cess by which such allegations were addressed." Later evidence
indicated this latter phrase presumably referred to the Ministries of the
Attorney General and the Solicitor General.

On November 24, the Globe and Mail published a story by Peter
Moon about the IIT and Gayder's guns under a front-page headline. The
article was based on the brief prepared for the Board by the IIT, and
VanderMeer testified that he gave it to Moon to help promote a public
inquiry. At the time, he readily admitted this to his superiors when
questioned, and was charged under the Police Act, pleaded guilty, and
forfeited several days' pay.

Inquiry transcript, vol. 176 (May 9, 1990).

xxviii Introduction

The day following the Globe and Mail article, the Solicitor
General announced that there would be a public inquiry. After can-
vassing the views of interested parties, and after revoking an earlier
abortive Order in Council, a second Order in Council dated March 25,
1988, was issued creating this Commission of Inquiry.'^^ Shortly there-
after, W.A. (Tony) Kelly, Q.C., and Ronald D. Collins were appointed
as counsel and associate counsel respectively, and Thomas Millar was
appointed administrator. Inspector Stanley Shillington and six senior
investigators"' were seconded from the Metropolitan Toronto Police
Force to form the Inquiry's investigation team.

The terms of reference are broad in scope. In preparing this
report, I have addressed the various issues by subject matter rather than
by historical sequence. This has resulted in dealing with some historical
events in more than one chapter, if they had bearing on more than one
issue. Appendix B to this report is a chronology which sets out the main
events in chronological order. It is recommended that readers who are
not familiar with the Niagara situation read that appendix first in order
to obtain a more detailed historical overview of the events leading to the
Inquiry.

■"' See Appendix A.
■^' See Appendix G.

PARTI

INTERNAL ADMINISTRATION

Hiring and Promotion

Property

Force Resources

1 HIRING AND PROMOTION

Item N°. 1 of the terms of reference requires me to examine the hiring and
promotional process of the NRPF. These processes gave rise to some of the
rumours of nepotism and preferential treatment within the Force, and the
hiring process was central to the conflict that resulted in the suspension of
Chief James Gayder.

(1) Overview of the hiring process

The authorized strength of the NRPF is fixed from time to time by the Po-
lice Services Board, after consultation with the Chief. When this strength
is increased or officers retire or resign, the Force is required to hire new
recruits in order to maintain its authorized strength. Historically, the Force
has selected these new officers by conducting a recruitment and hiring pro-
cess approximately twice a year. The hiring procedure is set out in a Force
document dated January 24, 1985, and is described in detail in the next sec-
tion. Under this procedure, all applicants undergo a series of intelligence
and physical tests. The results of these tests are combined to make a total
possible mark of 100.

Under the Force procedure, a Selection Board, consisting of a
Deputy Chief and two superintendents, then interviews the candidates. The
number of candidates to be interviewed is calculated by multiplying the
number of vacancies by five; that is, if there are five vacancies to be filled
25 candidates will be interviewed. Normally, the candidates selected for
interviews are those with top marks from the testing process. A tentative
cut-off mark of 80 is used to reduce the list of candidates to the requisite
number. If this would produce too many, the cut-off mark is raised; if too
few, it is lowered, or if it is felt this would lower the quality of the new
hirings, the number to be hired is arbitrarily reduced, and the resulting
vacancies are picked up at the next hiring session.

The primary use of the marks is to select the top candidates for the
Selection Board interviews so that, once the requisite number of inter-
viewees has been selected, the Selection Board assesses the candidates
independently on the basis of the interviews, without reference to their
testing scores. As a matter of practice, the Selection Board, at the con-
clusion of the interviews, reports to the Chief of Police setting out (a) the
top candidates, the number representing the vacancies to be filled, and the
names of those whom it recommends for immediate hiring; (b) those can-
didates who were found acceptable, but for whom there are no existing

4 Hiring and Promotion

vacancies, but who should be reconsidered at a later date; and (c) those
candidates who should be rejected. The Chief then presents his recom-
mendations, based on the Selection Board's report, to the Police Services
Board which has the power of appointment pursuant to section 31 of the
Police Services Act.

Once the Police Services Board has made the appointments, thus
filling the existing vacancies, the practice has been for the Chief, or one of
the deputies, to send out to the candidates one of three types of letters,
advising the candidates that (a) they are being offered a position with the
Force, or (b) the vacancies have been filled, but they were found acceptable
for future consideration, or (c) simply, that they were not acceptable and
thanking them for their interest. The second group of candidates, those
found acceptable but not hired, are generally referred to as "alternates", and
it is their status that, to a large extent, created the problem which resulted
in charges of deceit being laid against then-Chief Gayder.

(2) The John Gayder episode

In the summer of 1986, John Gayder, then 20 years of age, was one of a
large number of applicants for the position of constable on the NRPF. He
is the son of the late James Gayder, who at that time was the Force's Chief
of Police. Controversy over the manner in which his application was pro-
cessed played a large part in the eventual suspension and subsequent res-
ignation of Chief Gayder, and it was accordingly necessary to go into the
matter at the Inquiry hearings in considerable detail.

In 1986, three selection processes took place; one in April, one in
August/September, and one in December, 1986/January, 1987. At least
1,350 applications were received during this period and 1,066 candidates
were tested in order to fill 10 or 11 vacancies; a ratio of 100 to 1.

During the summer of 1986, the Standard published three lengthy
articles critically examining nepotism in the NRPF. At about the same time,
a hiring Selection Board was being convened consisting of Deputy Chief
Frank Parkhouse as Chairman and Staff Superintendents David Gittings and
James Moody as members. Due to concern about the Standard articles, the
Board of Commissioners of Police (as it was then called) detailed Robert
Hanrahan, a member of the Board, to attend the August 18-25 hiring ses-
sions as an observer. Some 550 applicants had undergone earlier testing and
the Selection Board interviewed the top 38 applicants for the seven existing

Hiring and Promotion 5

Force vacancies. The number interviewed exceeded the five-to-one ratio be-
cause of ties in the test results.

On September 2, 1986, Deputy Chief Parkhouse sent to Chief Gay-
der a memorandum setting out the Selection Board's recommendations. In
accordance with the Selection Board's practice, he listed 16 acceptable
candidates in order of merit. Since there were only seven openings, can-
didates numbered 8 to 16 were considered "alternates." The Chiefs son,
John Gayder, was ranked fifteenth. Chief Gayder forwarded the Selection
Board's report to the Board on September 4, 1986, recommending the hi-
ring of the seven top-ranked candidates as soon as openings were available
at the Ontario Police College.

At its meeting of September 11, 1986, the Board approved the
Chiefs recommendation, and at the same time discussed a report on re-
lationships within the Force prepared by Chief Gayder at the Board's re-
quest because of the Standard articles on nepotism. Mr. Hanrahan expressed
his opinion that the interviews "... were conducted fairly and honestly and
that there was no nepotism whatsoever."

At this same meeting, the Board created a Monitoring Committee,
consisting of Robert Hanrahan, Denise Taylor and James Keighan, the three
most recent appointees to the Board, with Mr. Hanrahan as chairman of the
committee. The function of the committee was two-fold, namely: (a) to re-
view the Force's hiring policies and procedures and to make recommen-
dations to the Board, (b) to detail one member of the committee to attend
hiring sessions in order to monitor the Selection Board's interviews and
deliberations and report back to the Board.

Following the Board's acceptance of the Selection Board's recom-
mendations. Deputy Chief Parkhouse sent out to the seven accepted can-
didates a letter offering them a position with the Force. To the applicants
ranked below the sixteenth position, he sent a "Thanks, but no thanks" letter
and to those ranked as alternates, he sent a letter, advising that the seven
presently available openings had been filled and stating further "Your ap-
plication will remain on file for 12 months. You may, if you so desire,
complete another 'Contact Card' after six months. Contact Cards are avail-
able at all offices of the Niagara Force. It will be necessary to undergo our
applicant testing process again." This "Parkhouse letter" appears to offer
little encouragement to the alternates as regards future employment, and
may be contrasted with the letter sent out to alternates by Deputy Chief
Shoveller following the earlier 1986 spring hiring sessions of which he was

6 Hiring and Promotion

chairman, the last paragraph of which letter states, "However, I am pleased
to advise you that because of your final standing in the selection process,
your application will receive favourable consideration should additional
vacancies be available in 1986."

It appears from the evidence of senior members of the Force that the
policy was that these alternate candidates "... will be considered again at a
later date," but there was no written policy concerning the treatment of
alternates and it is far from clear as to (a) what form that "consideration"
was to take or (b) how it was to be implemented. It is common ground that
these alternates would be offered employment in descending order of their
ranking, if any of those who had been offered jobs to fill the existing
vacancies did not accept, or if further positions became vacant before a
further selection board was convened. According to the evidence, it would
also seem that the unwritten, but generally understood, policy was that the
alternates would be advised of future hirings; would be encouraged to re-
apply and be retested, and would receive some special consideration as
being already approved, but their ranking would depend on their tests.
However, there does not appear to have been a standard policy as to how
such invitations were to be extended. Nor is it clear how "alternate"
candidates would interpret the "Parkhouse letter" or the "Shoveller letter"
as to what further action was to be expected from them in order to par-
ticipate in future hiring sessions, although the evidence indicates that the
message it is supposed to convey is a positive encouragement to reapply.
However, it is apparent that the "Parkhouse letter" to alternates simply
advising them of their rejecdon for immediate hiring and giving no par-
ticular encouragement regarding future employment was contrary to the
generally understood hiring policy of the Force.

Around the middle of September, at about the same time that the
alternates from the August/September process received their "Parkhouse
letters," the Force notified approximately 800 applicants of the testing for
the next selection process. Testing for six openings was to take place in late
September and early October, with Selection Board interviews to be held
in late December, 1986, and early January, 1987. Due to some oversight,
the former alternates, including John Gayder, were not notified, and were
not tested. On October 3, 1986, Staff Superintendent Gittings advised Chief
Gayder by memo that the testing had been completed and that the top 31
applicants should, subject to certain other checks, be interviewed. The top
31 applicants in this testing scored 83 or more points.

Hiring and Promotion 7

In December of 1986, at the Board Christmas party, Chief Gayder
renewed a discussion he had commenced with Mr. Hanrahan in September
about having a hiring process only once a year, as was done in Peel Region.
Alternates were mentioned, and Gayder testified Hanrahan suggested that
alternates did not have to be re-interviewed or re-tested. Hanrahan recalls
the reference to Peel, but said Gayder spoke of a disagreement amongst his
staff as to the appropriate treatment of alternates, Gayder' s view being that
alternates should be hired before new applicants, and the staff's view being
that they should apply like any new candidate. Hanrahan was aware that
John Gayder was an August/ September alternate, since he had monitored
those proceedings. Hanrahan said he told Gayder that he was not sure what
the arrangement was, but thought it unnecessary for alternates to rewrite the
test, and that the question should go before the newly-formed Monitoring
Committee which was to meet in a few days. Gayder agreed that the
questions of the treatment of alternates and of a once yearly hiring process
should be raised at the Monitoring Committee meeting.

That meeting took place on December 22, 1986, and was called to
discuss matters raised at four earlier meetings. Members other than Han-
rahan were not aware that the question of rehiring would be brought up.
Following other business, Gayder told the meeting about his discussions
with Hanrahan, that he had proposed that alternate candidates be re-
interviewed but not re-tested, and Hanrahan had agreed. Hanrahan testified
that at the beginning of the discussion on December 22, he agreed that
retesting was unnecessary. Gayder advised the meeting his son John was an
alternate, and under the proposal put forward, he would not have to be
re-tested. Mr. Keighan and Mrs. Taylor disagreed with that proposal.

According to each of a number of drafts of the minutes of the
meeting a "heated discussion" followed over Hanrahan's and Gayder's
proposal that alternates be re-interviewed but not re-tested, with both
Keighan and Mrs. Taylor protesting the Chief's conflict of interest because
of his son's candidacy. Gayder then left the meeting. In his absence, the
discussion regarding the manner of handling alternates continued. Deputy
Chief Shoveller explained that, for the August/September hiring, a cut-off
mark of 80 per cent of a candidate's overall score was set in order to
reduce the number of candidates to the 5 to 1 ratio for the Selection Board
interview. However, since the 31 top applicants in the October, 1986,
testing scored 83 or more points, the cut-off mark for the Selection Board
interview commencing January 5, 1987, was set at 83.

8 Hiring and Promotion

At about this point Chief Gayder returned. Mr. Hanrahan expressed
his concern about the fairness to the six alternates who had been given no
opportunity to enter the new hiring sessions, in spite of their "special con-
sideration" status, since it was too late to write the test. He suggested a
special test for the September alternates, but Mrs. Taylor and Mr. Keighan
would not agree, as they felt this would be preferential treatment. Mr.
Keighan asked Chief Gayder if letters had been sent to all alternates ad-
vising them that their applications would be kept on file, and the Chief in-
dicated that that was the case, although he had not seen his son's letter.
According to the minutes as finally approved, "Mr. Keighan then asked did
this mean that we were committed to interview these people, the chief an-
swered, yes." Mr. Hanrahan proposed a compromise, that the alternates' ori-
ginal marks would be put in with those of all the other candidates who had
written the October test, and the top candidates would be interviewed for
the available positions. This was agreed to. Chief Gayder had been absent
when Deputy Chief Shoveller advised of the cut off mark being raised to
83, and apparently understood that the alternates were to be added to the
interviewees from the October group. On December 23, he appointed De-
puty Chief Parkhouse as chairman of the next Selection Board, and di-
rected him to include for interviews the six alternates from the August/
September session.

Deputy Chief Shoveller was on vacation from December 23, 1986,
to January 4, 1987. On his return to work on January 5, 1987, he learned
that a Selection Board was to commence interviews that day, and asked for
a list of candidates. On noting that all alternates from the previous Select-
ion Board were to be re-interviewed, although two, one of whom was John
Gayder, had test results that were lower than 83, he advised Chief Gayder
and Deputy Chief Parkhouse that this was contrary to the Monitoring Com-
mittee direction of December 22. Chief Gayder did not agree with this inter-
pretation, and said he would attempt to obtain a clarification. He attempted
to contact Mr. Hanrahan but was unsuccessful, and called Larry Quattrini,
the Board Administrator who had been present at the meeting, but his re-
collection was inconclusive. At about 4:00 p.m. that day, Gayder reached
Hanrahan, but Hanrahan did not agree with Gayder' s understanding, and
said he would speak to Keighan and Mrs. Taylor and get back to Gayder.
By that time, John Gayder had already been interviewed. Hanrahan was un-
able to speak to Keighan and Taylor until the Board meeting of January 8,
and as a result did not get back to Gayder on January 5, and the inter-
views proceeded as scheduled. The Selection Board consisted of Deputy
Chief Parkhouse as chairman, and Staff Superintendent Moody and Staff
Superintendent Gittings as members. Mrs. Taylor sat in as monitor.

Hiring and Promotion 9

The Selection Board interviewed 34 applicants from January 5 to
January 13, 1987. At a meeting of the Board of Commissioners of Police
on January 15, 1987, Parkhouse submitted a memorandum recommending,
in descending order, 20 of these applicants, and, due to impending re-
tirements and the availability of six additional places at the Ontario Police
College, he recommended that the Force hire 12 applicants instead of the
intended six. John Gayder was ranked twelfth, and would have been
included in the recommended hiring. The availability of the extra Police
College places had not been learned until January 7.

The minutes of this meeting record a "... general disagreement as to
recommendations, if any, arising from the December 23 [sic] Monitoring
Committee meeting." Notes of the January 15 meeting made by two secre-
taries present indicate considerable confusion amongst those who had been
at the Monitoring Committee meeting as to what had been discussed, how
the candidates were to be selected for interviews, and whether anything had
actually been decided. Mr. Hanrahan was not present on January 15, and it
was decided that another meeting should be called to settle the unresolved
issues. Meanwhile, it was decided to hire the first seven candidates on the
list, leaving five openings.

Around this time, at an accounts meeting, Keighan and Shoveller
discussed the December 22 meeting and disagreed about what had been de-
cided regarding alternates, and whether the word "hire" or "interview" had
been used in Keighan's question to Gayder. On January 20, 1987, the full
Board met to consider the issues raised at the January 15 meeting. The
confusion over what had happened at the December 22 meeting remained.
The Board finally decided that, beyond the seven already hired no ad-
ditional candidates from the January Selection Board would be hired and
that a new Selection Board would be convened. On January 22, Gayder was
directed to convene a second Selection Board to interview the 23 candi-
dates who had received 80 to 83 marks on the October, 1986 testing and
who had not been previously interviewed, and to re-interview the top five
alternates from the first Januar>' Selection Board. For some reason, perhaps
due to the general confusion, no provision was made to re-interview the
remaining alternates from the first January Selection Board.

The second Selection Board sat on January 26 and 27. The Board
consisted of Acting Deputy Chief Moody (who had made it very clear at
another stage of the Inquiry that he was no supporter of Gayder), as
chairman. Staff Superintendent Gittings and Superintendent Swanwick as
members, and Mrs. Taylor as an observer. By a memorandum dated January

10 Hiring and Promotion

27, 1987, the Selection Board recommended the hiring of the same five
candidates who had been the top five alternates selected by the previous
Selection Board and recommended for hiring by Parkhouse. These included
John Gayder.

The Board of Commissioners met on Wednesday, January 28, to
consider the Selection Board's report. Apparently without realizing that
candidates 13 to 20 from the first selection had not been re-interviewed, the
Board questioned as to how it happened that the same five names had been
recommended. A heated discussion followed. When Chief Gayder attempted
to speak to the matter, he was told to "shut up" by Mrs. Taylor, who stated
that she had come up with quite a different hst of top candidates. The
Board then passed ai motion to hire none of the candidates at that time.

Gayder asked for a further meeting with all senior staff present in
order to clear the air. This meeting was set for Thursday, February 5.

On Friday, January 30, 1987, Deputy Chief Shoveller met with Ser-
geant VanderMeer and Mrs. Taylor at Mrs. Taylor's house. John Cross-
ingham, Mrs. Taylor's next-door neighbour, was also present. Mr. Cross-
ingham is a solicitor, with no specific expertise in police matters, but Mrs.
Taylor had frequently consulted him about her Police Commission pro-
blems. On learning of Mrs. Taylor's concerns about Gayder, Crossingham
referred her to William Dunlop, a Burlington lawyer, as an expert on police
matters. Mrs. Taylor informed Shoveller that she was considering laying
Police Act charges against Chief Gayder relating to the hiring events in-
volving his son. Shoveller advised her to confront Gayder with her alle-
gations in order to give him an opportunity to provide an explanation before
laying charges.

On Sunday, February 1, Sergeant VanderMeer, while visiting Mrs.
Taylor at her house, offered to advise Mr. Hanrahan, who was a friend of
his, about the proposed Police Act charges. Mr. Hanrahan testified that he
met VanderMeer at a party that night, and the Sergeant informed him that
Mrs. Taylor was going to lay Police Act charges against Gayder. Hanrahan
was surprised.

Mr. Hanrahan told the Inquiry that, at a break in a Board meeting
in the fall of 1986, Mrs. Taylor had told him that she was unhappy with
Gayder, and he had suggested to her that Gayder had only a year-and-a-half
to go to retirement, and he (Hanrahan) would prefer to let the time go by

Hiring and Promotion 1 1

"rather than acting in a more dramatic fashion."' However, Mrs. Taylor did
not discuss the proposed charges with any member of the Board prior to the
February 5 meeting, when the charges were laid. She did consult with
various lawyers, including a Crown attorney, and the charges were typed in
advance of the February 5 Board meeting.

At that meeting, Mrs Taylor, as chairman of the Board, laid three
charges of "major offences" under the Police Act against Chief Gayder, as
follows;

(1) "You stand charged with deceit in that you did wilfully or
negligently make a false misleading or inaccurate statement
pertaining to official duties contrary to section 1 (d) (ii) ... That
on or about the 22nd day of December, 1986, at the Headquarters
of the Niagara Regional Police Force at 68 Church Street in St.
Catharines, Ontario, in the course of a meeting with the
Monitoring Committee of the Niagara Regional Board of
Commissioners of Police, you did state to members of the
Monitoring Committee that a representation had been made by a
member of the Niagara Regional Police Force to unsuccessful
applicants for the position of Constable with the said Force during
the next hiring selection procedure without having to undergo the
applicant testing process again."[5/c]

(2) "You stand charged with a corrupt practice in that you did
improperly use your character and position as a member of the
Police Force for private advantage contrary to section (1) (f)
(v).... That between the 21st day of December, 1986 and the 6th
day of January, 1987, you contrary to direction given to you by
the members of the Monitoring Committee of the Niagara
Regional Board of Commissioners of Police did instruct Deputy
Chief Frank H. Parkhouse, the Chairman of the Selection Board
to include among the candidates who were eligible for interviews
for the position of Constable with the Niagara Regional Police
Force, persons, including your son, John Gayder, who based on
test scores, was not eligible for interviews for the position of
Constable with the Niagara Regional Police Force."

(3) "You stand charged with a corrupt practice in that you did
improperly use your character and position as a member of the
Police Force for private advantage contrary to section 1 (0 (v) ....
That on or about the 22nd day of December, 1986 at a meeting

Inquiry transcript, vol. 99 (Sept. 6, 1989): 111.

12 Hiring and Promotion

of the Monitoring Committee of the Niagara Regional Board of
Commissioners of Police at 68 Church Street, St. Catharines,
Ontario, you did speak repeatedly to members of the Monitoring
Committee in support of the application of your son, John
Gayder, to be hired as a Constable of the Niagara Regional Police
Force."

Mr. Hanrahan stated that Mr. Dunlop, one of the lawyers consulted
by Mrs. Taylor, was present, and advised the Board "that the charges were
legitimate and that the Board had no choice but to suspend Gayder."
Accordingly, the Board passed a motion suspending Gayder, although it
would appear that some members were less than enthusiastic. In his evi-
dence, Mr. Hanrahan said, "I would not have charged the Chief at that time
if I were in her position." When interviewed by Inquiry investigators, Mr.
Keighan stated: "I didn't know that she was going to go ahead with it. I
was somewhat, you know, I was hoping to God that she had enough, you
know, to back up what she had done."^ In testimony, he said "I would say
I experienced almost a disbelief as to what was happening." However, in
their evidence at the Inquiry both Hanrahan and Keighan supported the
Board action. The other two commissioners were not called as witnesses.

Apparently no one realized that the first charge probably did not
disclose any offence at all, since it did not set out what the alleged deceitful
representation was, although it could, of course, have been amended. Nor
did anyone appear to take into account that, in the second charge, the
"direction" allegedly given to Chief Gayder was not a lawful order since it
was given by a committee, and, under Regulation 791 section 31(1) and the
Police Act section 17(1), only the Board could give a lawful order to a
Force member. As to the third charge, the Board counsel advised the In-
quiry that he considered that it could not have been successfully prosecuted.
To proceed to charge the Chief of Police and immediately issue a statement
to the media announcing his suspension on the grounds of deceit and cor-
ruption, as was done, without being very sure of the legality of the pro-
cedure, would appear to justify the later concerns of some of the Board
members about the action.

At the February 5, 1987 meeting. Deputy Chief Shoveller was ap-
pointed Acting Chief of Police. On February 17, he ordered an internal
investigation into rumours of corruption within the Force and, as a result of
the discovery of a large number of handguns and other weapons in a closet

^ Statement (May 20, 1988): 44.

Hiring and Promotion 13

used by Gayder, nine additional Police Act charges against him were pre-
pared. According to a letter of March 4, 1987, from Mrs. Taylor to the
Solicitor General advising of Gayder' s resignation, the additional charges
consisted of counts of discreditable conduct, of neglect of duty, and of
corrupt practice. On March 4, 1987, James Gayder retired from the Force,
and the Police Act charges automatically expired. Gayder testified that he
took early retirement on his lawyer's advice in view of the cost of
defending the mounting number of charges. The evidence indicates that
some of the members of the IIT did, in fact, intend to keep exerting
pressure on Gayder until he resigned. A member of the Force gave evidence
that a member of the IIT told him that they intended to keep "ratchetting"
Gayder by laying a couple of additional charges each week until he
resigned.

It is apparent that the direct cause of Gayder' s suspension was Mrs.
Taylor's, and subsequendy the Board's, perception that Gayder had de-
ceived them by whatever he told them at the December 22, 1986, Monitor-
ing Committee meeting. That there was considerable confusion and great
disagreement about what actually was said at that meeting became painfully
evident during the hearings.

Something like seven or eight draft versions or memoranda of
amendments to the minutes were prepared and then further amended fol-
lowing acrimonious debate. At the December 22, 1986 meeting, Mrs. Isa-
belle Wilcox, the very experienced confidential secretary to the Board, was
called in to take minutes some time after the Committee had convened. She
had not been instructed in this regard, and was not sure how much detail
she was expected to record. Because of the unexpected summons, she had
with her only a "sundry notebook" of appointments, phone messages etc.,
and her original notes could not be produced at the hearings, since the
notebook had been destroyed once it was filled up, as was the normal
practice.

However, from her shorthand notes in that book, she had prepared,
at the time, very brief draft minutes. In this first version, what appears to
be the only relevant reference to the hiring procedure in relation to
alternates was a note that items to be discussed at the next meeting were:
"people on short list — interview process — cut-off at one year — regularize
process — one inventory per year — how long this application stay on file?"
The balance of this draft simply enumerated a number of unrelated items
to be discussed at a future meeting. This draft was discussed with Mr.
Hanrahan, the committee chairman, and probably other committee members.

14 Hirino and Promotion

A number of further drafts or notes of proposed amendments were
prepared from time to time, but unfortunately were not dated, and it is
difficult to be sure of their chronological order. What was taken to be the
second draft was prepared as "Addendum to Minutes of Monitoring
Committee Meeting Held on Tuesday, December 22, 1986" and greatly
expanded the first draft. It noted that Gayder had pointed out that his son
was a prospective candidate; that Mr. Keighan pointed out that Gayder had
a conflict of interest and should refrain from further discussions respecting
candidates; that Mrs. Taylor reiterated Keighan' s comments and said "Chief,
you are out of order," and that Gayder then left the meeting. The only note
in the draft as to what was discussed in his absence was Deputy Chief
Shoveller's suggestion that the passing mark should be raised from 80 per
cent to 83 per cent to produce high calibre candidates. Gayder insists he
was unaware that the cut-off mark in the October 1986 tests had been raised
to 83. The draft states that following Chief Gayder' s return, Mr. Hanrahan
expressed concern about unfairness to the alternates if the mark was raised
"... when they were told they did not have to reapply and would be hired
automatically." The draft states that Deputy Chief Shoveller pointed out that
the six alternates had been sent a letter advising that "... they would be kept
on file, that is to say the shortlist." Mr. Hanrahan then proposed "... that
these candidates be allowed as any other applicant to write the test and take
the physical examination." This draft of the minutes noted that there was a
discussion as to whether the applications should be carried into 1987 and
added "... this in relation to the six candidates who were told they would be
hired." This sentence was deleted in later drafts.

Mrs. Wilcox produced to the Inquiry another copy of the type-
written draft N°. 2, referred to above, which she had used to inter-line in
ink, as notes for a third draft, further amendments suggested by a memo
which she produced and which was headed "Notes from Bob Hanrahan."
Since this memo contained a notation, "Send copies of Addendum to
Keighan, Taylor, Hanrahan and Acting Chief Shoveller," it must have been
prepared after Gayder' s suspension on February 5, 1987, and Shoveller's
appointment as Acting Chief on that date, and the laying on that date of the
Police Act charges against Gayder. The amendments to draft N°. 2 deleted
the references to Deputy Chief Shoveller's suggestion of an increase in the
80 per cent cut-off mark, and altered the notation of Mr. Hanrahan's
concern about unfairness to candidates "... when they were told they did not
have to reapply and would be hired automatically" to read: "Mr. Hanrahan
advised that it would be unfair to the six candidates not to interview them
when they were told they did not have to reapply." Also added, immediately
thereafter, was this sentence: "Mr. Keighan and Mrs. Taylor were of the

Hiring and Promotion 15

opinion that these six candidates should have been tested like any other
applicants." Following the item about Deputy Chief Shoveller stating that
letters had been sent to the six saying, "They would be kept on file, that is
to say the shortlist," was added the note, "Chief Gayder concurred." This
document, Mrs. Wilcox referred to as "notes" for her next draft.

Mrs. Wilcox also produced a typed memo she had prepared, with
a notation "Excerpt from February 10/87 Discussing Amendments to De-
cember 22, 1986 Meeting" and headed "Minutes of Monitoring Com-
mittee, Tuesday, February 10, 1987 at 11:20 A.M." This document con-
tains the following note: "When asked by Mr. Keighan whether letters to
the shortlisted candidates indicated that their applications would be kept on
file were sent after the last hiring, the Chief indicated that this was the case.
Mr. Keighan asked did this mean that we were committed to (shorthand
says hire) but this is scribbled through and written in longhand is the word
"interview" these people. The chief answered yes." (The foregoing is a
verbatim reproduction of Mrs. Wilcox's note, including the portion in
brackets). At the end of the document is the note: "Motion R.F. Keighan,
seconded D.R. Taylor, that the minutes of December 22, 1986 be hereby
adopted." Presumably, this meant that the minutes were adopted as amended
by the previous notes in that same document.

Another typed memo, undated, was produced by Mrs. Wilcox,
which she stated she had typed, but did not know where it came from. It
contained a note, amongst others, "Mr. Hanrahan concerned about the rights
of the six who were told that they did not have to reapply and would be
hired automatically ... Mr. Hanrahan proposed that they be allowed, as any
other applicant, to write the test and take the physical examination." [It is
to be noted that it was then (December 22) too late to arrange the tests, and
that this was realized at a later stage of the December 22 meeting.] Yet
another similar undated typed memo stated, amongst other things, "Mr.
Hanrahan advised that it would be unfair to the six candidates not to
interview them when they were told that they did not have to reapply."

Another undated memo was produced by Mrs. Wilcox outlining
seven amendments, obviously referring to another set of draft minutes of the
December 22 meeting, since it referred to page numbers. The second
amendment on that draft was "Page 2 — Amendment N°. 2 — Mrs. Taylor
reiterated ... Chief, you are out of order — you have a conflict of interest."
The latter words were not contained in the previous draft minutes. The third
amendment on that document was "Page 2 — Amendment N°. 3. The Chief
mentioned that he had spoken to Mr. Hanrahan and that in Mr. Hanrahan's

16 Hiring and Promotion

view the ..."[sic]. Previously, the draft minutes had said that "Mr. Hanrahan
advised that it would be unfair to the six candidates not to interview them
when they were told that they did not have to reapply." The amendment
accordingly showed this as being a quote from Mr. Hanrahan by Chief
Gayder, rather than being Mr. Hanrahan' s statement. The fifth amendment
on that document was "Page 3 — Amendment N°. 5. "Chief Gayder
concurred" — to be deleted. To read as follows: When asked by Mr.
Keighan whether letters to the shortlisted candidates indicating that their
applications would be kept on file were sent after the last hiring, the Chief
indicated that this was the case." The sixth amendment was "Amendment
N°. 6 — Mr. Keighan asked did this mean that we were committed to hire
these people. The Chief answered yes." The next amendment was "Page 3
— Amendment N°. 7 — Amend to read: It was then decided that the grades
of the six candidates would stand and ...''[sic]

Yet another set of minutes was then prepared, stamped at the top
"Unofficial Minutes", with a written notation "Amended 87.02.10, "in-
corporating the amendments referred to above. (This amendment was dated
after Gayder' s suspension). These new draft "unofficial" minutes were
apparently considered at a monitoring committee meeting held on February
10, 1987, but the word "hire" contained in Amendment N°. 6 above was
changed to "interview," so that the paragraph now reads "Mr. Keighan
asked did this mean that we were committed to interview these people. The
Chief answered yes."

Thus there were at least seven or eight different drafts of what
occurred at the December 22, 1986 meeting, and Mrs. Wilcox thought
there was another version, which she had been unable to locate. It seems
apparent that the members who were present at the December 22 meeting
kept constructing and reconstructing, long after the meeting, what they
believed was said at that meeting. It leaves a finder of fact in considerable
doubt whether anyone present left the meeting with any real idea of what
had occurred, and whether any decisions or recommendations were, in fact,
made.

The minutes of the January 15 meeting, held over three weeks after
the original meeting, state that "There was general disagreement as to
recommendations, // any (my emphasis) arising from the December 22,
1986 Monitoring Committee meeting. The final minutes were the result of
repeated modifications of the original minutes, and major modifications
were made following Gayder' s suspension, leaving the impression that the
minutes were being reconstructed to justify the Board's perception, upon

Hiring and Promotion 1 7

which Gayder's suspension was based, that Gayder had deceived the Mon-
itoring Committee at its December 22 meeting, and had dehberately failed
to carry out the Monitoring Committee's instructions regarding what can-
didates were to be interviewed by the January Selection Board. I do not
beheve that the Board members were, in effect, dehberately "cooking the
books," but rather that, in attempting to record the justification for their
action after the fact, they came to realize how confused were their
perceptions of what that justification was.

From the overall evidence, it would appear that the intended policy
of "preferential treatment" for alternates probably had three objectives: (1)
to fill vacancies if a successful candidate declined appointment (2) to fill
new vacancies created by unexpected retirements, resignations, death etc.,
prior to the next hiring session and (3) to notify alternates from the last
session of the date of the next tests. However, it seems that in 1986 no one
in authority had any clearly defined understanding of what that policy really
was. For instance, in May 1986, Gayder met with Moody and Parkhouse
about the Force being under-strength between hiring periods. He recorded
in his notes, "Hiring of three officers for 26 May, from old list - next three
in line - O.K." This was approved by the Board. In view of this, and the
third objective, it was understandable that Chief Gayder and Mr. Hanrahan
had concerns about the unfairness to the August/September, 1986, alternates
of proceeding with the January 1987 interviews without notification to
them.

It appears that exceptions to the intended policy were not unknown
to the Board. At the August/September hiring sessions, Sean Clarkson was
given a qualifying mark of 80, but on re-adding the scores, it was
discovered that his score should have been 79. Because he had been
assessed as an outstanding candidate on his interview, with the concurrence
of Mr. Hanrahan, he was re-tested on the physical part that he had failed,
and received a mark of 81. Mr. Hanrahan testified that it was his
understanding that such qualification would qualify him for a re-interview.
He was eventually hired at a subsequent hiring session a year later, the
delay apparently being due to the confusion surrounding the January, 1987
hirings. Wayne Orcutt, a provincial police officer, was included in the
January 5-13, 1987 interviews. As a serving police officer, he was not
required to attend Police College, and on the recommendation of Mrs.
Taylor, was hired by the Board at their meeting on January 8, subject to his
obtaining his discharge from the OPP. This was before the other interviews
were completed, and before any list of recommended candidates had been
prepared, and thus was an exception to the usual policy. It accordingly

18 Hiring and Promotion

appears that the Board's reluctance to deviate from policy in relation to
John Gayder was not entirely consistent with their willingness to stretch the
rules to accommodate some attractive candidates.

Nevertheless, even without foreseeing the disastrous consequences
of his actions, it behooved Chief Gayder to keep out of any discussions
concerning the hiring sessions involving his son. On the evidence, I do not
believe that Gayder deliberately misled the Monitoring Committee as
alleged in the charges against him, although I accept the fact that some of
the persons present, after several weeks of discussion and vacillation,
concluded that Gayder had stated that there was some commitment to the
alternates to interview without further testing. Gayder's involvement in the
discussion about alternates, and his articulated concern that they were not
being included in the new hiring procedures, followed by his statement that
his son was one of them, created a situation in which his intervention
became suspect. No one is clear about what was said about hiring policies
in the hubbub that followed, and it is probable that neither Gayder nor
Keighan really understood the substance of their exchange about commit-
ments to alternates. If Force policy regarding the treatment of alternates was
vague, it was up to Gayder as Chief to arrange for its clarification by way
of written policy for future hiring sessions, but he should have left it to
others on his staff to assist the Board in correcting the perceived unfairness
to the August/September alternates.

It should have been apparent to any person attending the December
22, 1986, Monitoring Committee meeting that no significant (let alone
major) decisions could safely be made relying on anyone's interpretation of
what Gayder had said or what instructions were given to him at that
meeting. Quite apart from the equivocal and confused oral evidence of those
present as to what was decided during the "heated discussion," the docu-
mentary evidence reveals the fuzziness of everyone's recollection. Asked
what was meant by the term "heated discussion," Mrs. Wilcox said "raised
voices, tempers flaring, talking over one another, interrupting." This, she
said, referred to the members, not to Gayder or Shoveller.

The minutes of the January 15, 1987, "confidential" Board meeting
refer to the general disagreement as to what, if any, (my emphasis)
recommendations resulted from the December 22 meeting. Mrs. Taylor sat
in as monitor at the hiring interviews of January 5 and January 26, at both
of which John Gayder was interviewed, and she, at that stage, apparently
did not recall that there had been instructions that only those with marks
over 83 (which, she was presumably aware of from the December 22

Hiring and Promotion 19

meeting, would have excluded John Gayder) would qualify for an interview.
If the events of the December 22 meeting were at all clear in her mind on
January 5, she would surely have objected, as Deputy Chief Shoveller did,
to the inclusion of persons with less than a qualifying mark of 83. It took
more than seven weeks and at least six or seven very contradictory
revisions of the draft minutes of the December 22 meeting, before reluctant
agreement could be obtained as to what the Monitoring Committee members
thought had actually transpired. Gayder, on the other hand, had only a few
days to carry out the instructions he thought he had received as to the
inclusion of the September 1986 alternates in the January 1987 hiring
interviews. It would not be unnatural if his interpretation of the confused
discussions was coloured by his interest in having his son's name included
in the list of interviewees, just as the Board's discussions after February 5
as to what should go in the minutes were probably coloured by its interest
in supporting its February 5 decision to suspend Gayder and pursue Police
Act charges against him.

If the Board had seen fit to admonish or reprimand Chief Gayder for
what it perceived to be a distortion of hiring policies affecting his son, that
would be understandable. However, the suspension of a Chief of Police, and
the laying of charges against him, with all the inevitable adverse
repercussions in the media, the public and the Force, is one of the most
momentous decisions a Board of Police Commissioners can make. Only
incontestably proven conduct would seem to justify such a course of action,
and then only after all alternatives had been explored. It is apparent that at
least some members of the Board were not happy with Chief Gayder and
his administrative style, but, as Mr Hanrahan pointed out to Mrs. Taylor,
Gayder would become eligible for retirement on June 24, 1988. If they
wished to get rid of him, unless his conduct was so demonstrably serious
as to be detrimental to the well-being of the Force (and I am far from
satisfied that the Board had such proof), the prudent and pragmatic course
would have been to await that likely solution. Had that course been
followed, the IIT, which came to many unwarranted conclusions and created
much adverse publicity and many harmful rumours, would never have been
formed, and it is doubtful that this Inquiry itself would ever have been
required.

(3) Analysis of the NRPF hiring and promotion process

The confusion surrounding the 1986-87 hirings described above, and which
were the subject of some three weeks of hearings, is an example of the

20 Hiring and Promotion

problems involving the hiring practices of the Force. As well, suspicions as
to the integrity of the promotional processes were frequently voiced during
the course of the Inquiry investigations. The subject of the promotional
processes employed by the Force and how they are perceived figured lar-
gely in the Commission's examination of the morale of members of the
Force.^ In this section, I shall attempt to deal, not with any particular
situation, but rather with the procedures which the Force utilizes to hire and
promote its members.

In police organizations as much as 90 per cent of their annual
operating budget is expended on wages and fringe benefits. Besides this
very considerable absolute cost to the public, the human resources of a
police force are, far and away, its most significant asset for the delivery of
efficient and effective police service to the community. Therefore, the
management of this resource is of paramount importance. A basic principle
of any police force must be to maximize the potential effectiveness of its
complement of personnel. Failure to do so can have far-reaching impli-
cations for virtually every facet of the organization, ranging from internal
problems, such as low productivity and morale, to external pressures like
negative media coverage, diminished public support and severe adverse
scrutiny from political representatives.

Sound hiring and promotion decisions are central to the human re-
sources management process in any organization and the NRPF is no excep-
tion. Whenever personnel selection methods result in superior performers
being hired or promoted, literally millions of dollars in benefit to the force
can accrue in increased productivity, better service and improved employee
satisfaction. In short, there are compelling reasons to draw upon available
proven selection methods to ensure that the best possible hiring and pro-
motion decisions are taken and accordingly be able to defend the rationale
for those decisions.

(a) Hiring

The criteria for hiring police officers are prescribed in section 43 of the
Police Services Act, but their specific application is administered by in-
dividual police forces. Requirements include being a citizen or permanent
resident of Canada, 18 years of age or older, physically and mentally fit,
good moral character, and at least four years of secondary school. Basic

' See Part IV.

Hiring and Promotion 21

qualifications for tlie NRPF differ little from other Canadian forces and they
include the above, plus possession of a valid driving licence and corrected
visual acuity of 20/30 with normal colour vision.

In the past, the Force relied exclusively on interested members of
the public "walking in" to apply for employment, but recently it has de-
veloped a recruiting video and begun promoting police careers through pre-
sentations to local organizations including educational institutions. In any
event, the Force has never had difficulty attracting large numbers of appli-
cants for the positions available and has, therefore, had to eliminate the
great majority through a variety of selection devices.

The first step in the current selection process is a cognitive ability
test. The General Aptitude Test Battery (GATE) has been introduced to
replace the Otis-Lennon Mental Ability Test which had raised some
concerns of cultural bias. The cut-off mark established for GATE in
Niagara eliminates approximately 60-65 per cent of those tested but the
results are not used to rank the passing candidates. Since cognitive ability
tests have been demonstrated to be among the very best predictors of job
performance it is a waste of valuable test information to treat all candidates
who pass as equals. However, there is a practical problem which may
compromise the reliability and validity of such tests; namely, many per-
sistent police force applicants repeatedly undertake these tests at different
forces which results in a "testing effect," that is, familiarity producing
misleadingly high scores.

On the same occasion as they undergo the cognitive ability test, can-
didates take a 60-word spelling test and are required to write two polic-
ing-related essays which are only graded for those who pass the cognitive
ability test. The pass mark on the essay test is 76 per cent and each is now
scored separately by two supervisory officers using a grading sheet, al-
though some of the qualities being evaluated such as maturity and relevance
have still not been well defined. The results of both the spelling and essay
tests may be considered later in the process if two or more candidates ap-
pear to be equally well qualified.

Surviving candidates are interviewed for up to an hour by what is
known as the Fine Screen Panel, comprised of the recruiting sergeant and
two staff sergeants. This interview probes the candidate's personal history,
interests and attitudes to enable an assessment to be made as to his/her
acceptability. However, the judgement made tends to be a global one as to
the "fit" of the candidate and some wrong answers may in themselves pre-

22 Hiring and Promotion

elude further processing. Information elicited may be verified during the
next phase of the selection process which involves an investigation of the
candidate's background including information gathering from references and
former employers. Given the enormous public trust placed in police officers,
thorough background checks are not only justified, but they provide an ob-
vious and reliable source of information as to a candidate's character and
suitability. In the past, some of these labour-intensive checks have been
rather cursory and persons such as neighbours, who have potentially ob-
served an applicant's behaviour over an extended period of time, have not
been interviewed.

Following success at the Fine Screen Panel, but prior to the back-
ground investigation; applicants must attain 60 per cent to pass the physical
fitness test set by the Ontario Police College. Gender and age are factored
into the test requirements, which include a one and one-half mile run, push-
ups, sit-ups and a flexibility test. Undoubtedly, a degree of physical fitness
is a bona fide occupational requirement for police officers. The test adopted
is simply the standard required by the Ontario Police College. It is appro-
priate that a simple pass in the test permits a candidate to continue in the
process, as opposed to the previous practice of allotting 50 per cent of the
qualification mark, for the final selection interview, to the physical test. If
an applicant's physical test indicates he/she is sufficiently fit to perform
his/her duties as a police officer, it does not seem appropriate to grant
him/her a higher standing because he/she can run farther or faster than other
candidates.

The final stage in the process is an interview by the Selection
Board, comprised of two senior officers and chaired by a deputy chief.
While candidates' points do not accumulate as they pass through the
system, test scores, as well as a synopsis of their performance to date, are
available to this Board. This interview, like that of the Fine Screen Panel,
is structured, in that the questions are pre-planned and candidates are asked
the same basic questions. However, the interviews lack structure insofar as
the traits, personal attributes or skills sought have not been defined through
job analysis, which would allow the development of questions designed to
reveal the candidates' job-related skills and abilities. Consequently,
standards may inadvertently vary between different interviews and amongst
interviewers. This deficiency should be remedied as soon as possible since
well-developed structured interviews that are based on a thorough job
analysis, and in which specific types of questions are designed to assess
job-related skills and abilities, are among, the most reliable and valid
predictors of job performance.

Hiring and Promotion 23

The Selection Board ranks the candidates and, as vacancies occur,
their names may be placed before the Board, which must approve any
hiring. In Niagara, as we have already seen, the Police Services Board has,
in the recent past, been more involved in hiring issues than is typical. The
Board established a Monitoring Committee, with respect to hiring, and a
member was designated to observe Selection Board interviews following a
newspaper story in August 1986, which became known as the "nepotism ar-
ticle." Although the body of this article did not mention the word nepotism
it did purport to illustrate that many members of the Force had relatives
also working for the Force. In many respects the presentation of the data in
the article was misleading, for instance, by the inclusion of relationships
formed by marriage after the parties had joined the Force. Nonetheless, it
had the effect of raising concerns about the perception that the Force
favoured the hiring of relatives over members of the general public.
Furthermore, as numerical data is not available on this topic for com-
parable Ontario police forces, the statistics cannot be put in context. Even
if the NRPF figures on "relatedness" are inordinately high (and there is no
evidence to suggest they are), it would be both unfair and probably un-
lawful to prohibit relatives from being hired by the Force. In the fmal
analysis, the best safeguard against the inference that favouritism is being
shown is the adoption of sound selection procedures which are uniformly
applied to all candidates.

Over one-quarter of the employees of the NRPF are civilians who
perform a broad range of roles in the organization, including a number who
occupy senior positions. The filling of any permanent civilian position on
the Force, with the exception of Chief Administrative Officer (CAO), is
subject to the provisions of either the Senior Officers' or the Police
Association Collective Agreement.

Whenever a civilian vacancy occurs the position is posted, indicating
the duties, qualifications etcetera, and any permanent employee of the Force
may apply. For civilian senior officer positions there is a provision to
simply appoint a candidate, but usually a similar selection process to that
governing the other approximately 95 per cent of civilian positions is
followed. For positions governed by the Police Association Collective
Agreement, job requirements such as typing are tested and all successful
candidates are interviewed by a panel comprised of two members of the
involved unit and chaired by the personnel supervisor. Once again these
interviews are relatively structured in that all candidates are asked the same
pre-set job-related questions. For other than senior officer positions a Police
Association observer is present: seniority is used to separate equal can-

24 Hiring and Promotion

didates and the process is subject to the grievance provisions of the
Collective Agreement. Should a position not be filled by a permanent
employee, (that is, there are no applicants or none are qualified), then the
competition is opened to the Force's pool of temporary employees and/or
the general public.

The Force utilizes temporary employees on both a full-time and
part-time basis to replace permanent employees absent due to illness or
vacation, as well as for such special projects as backlog reduction. The
Force maintains an inventory, by job type, of members of the public who
have contacted the Force to seek employment. Generally, persons from this
inventory are invited to apply for temporary assignments as the need arises
and those who prove satisfactory form the pool from which the majority of
permanent openings are filled. Recruiting methods, such as newspaper ad-
vertising, are required only infrequently, usually to fill relatively specialized
job functions.

(b) Promotion

The rank hierarchy of police officers in the NRPF is taken from the Police
Services Act, namely, constable, sergeant, staff sergeant, inspector,
superintendent, staff superintendent, deputy chief and chief. Generally,
promotions in Niagara, like most other Ontario forces, are to rank, not
position, and opportunity for promotion is dependent on openings occurring
in the authorized strength of the Force. Unfortunately, the demographics of
most police forces, including Niagara, are such that the majority of officers
are unlikely to be promoted during their careers. Furthermore, virtually all
constables aspire to at least one promotion and inevitably experience pro-
found disappointment when this is not achieved. The negative consequences
are many, including low morale among the rank-and-file and relentless
clamouring for changes in the promotional system. Often, senior manage-
ment, as is the case in Niagara, feels compelled to repeatedly review its
promotional processes in response to Force members' criticisms.

The NRPF's present promotional system was devised by a commit-
tee comprised of various ranks with Police Association representation and
member input during 1988, and was scheduled for similar review again in
1989. As indicated later, I understand this review is to be carried out by
consultants.

Hiring and Promotion 25

The current procedure, which governs promotion to the ranks of ser-
geant, staff sergeant and inspector, received the approval of the Board and
was issued by the Chief in September, 1988. The system is essentially sim-
ilar for the three ranks. The basic eligibility requirements, service of four
years as constable and two years as sergeant and staff sergeant, and a 70
per cent pass in the Force's Policy and Procedure Examination and the
applicable Ontario Police College examination (with 65 per cent minimum
in each category), qualify a candidate for five years.

Constables and sergeants are evaluated on job performance and pro-
motion potential by a Promotion Evaluation Board, appointed by the
divisional commander, comprised of three supervisors, including, where
possible, the candidate's immediate supervisor. Using a standardized
five-point rating form, several aspects of job performance and promotion
potential are scored, as well as a recommendation for promotion indicated
by each evaluator, and the scores are averaged. The top 40 per cent of
constables and the top 50 per cent of sergeants proceed to the Divisional
Review Board composed of two senior officers appointed by the divisional
commander.

Using a standard form, the Divisional Review Board reviews the
previous Board's evaluations, as well as each candidate's personnel file and
resume. A narrative and numerical assessment is produced along with a re-
commendation for promotion. The scores are averaged and the top 40 per
cent of constables and top 50 per cent of sergeants recommended by all
divisions proceed to the Chiefs Oral Board, composed of four previously
uninvolved senior officers.

The Oral Board reviews the previous Board's evaluations and each
candidate's career history file, personal evaluations and resume and con-
ducts an interview. Again, using a standard form, Board members complete
a narrative and numerical assessment of each candidate, and make a recom-
mendation for promotion. In an effort to reduce the possibility of favour-
itism or bias, the highest and lowest scores are discarded, the remaining two
averaged and the candidates listed in numerical order of merit for sub-
mission to the Police Services Board by the Chief as promotions are re-
quired.

Eligible staff sergeants, seeking promotion to inspector, undergo a
somewhat different process. At the outset, a narrative assessment, including
a recommendation for promotion, is prepared by the Promotional Evaluation
Board comprised only of an inspector, usually the applicant's immediate

26 Hiring and Promotion

supervisor. Recommended candidates are assessed by an Oral Board con-
sisting of four previously uninvolved senior officers, who review each
narrative evaluation, career history file, personal evaluation, and resume,
and conduct an interview using a standard form. The highest and lowest
scores are discarded, the remaining two averaged, a recommendation for
promotion made and two recommended candidates for every vacancy, or at
least six with the highest scores, proceed to the Chiefs Board. At this
Board, the Chief and two designated senior officers, usually the Deputy
Chiefs, review the candidate's previous documentation, including the Oral
Board's evaluation, conduct an interview and make a recommendation for
promotion using a standard form. A rank-ordered list of successful can-
didates is forwarded to the Police Services Board for approval and, in re-
cent years, a further interview is conducted by that body.

Candidates may elect to have a Police Association representative
present during the interview process. They are advised of their scores and
the final rankings are posted to reduce the perception that it is a secret
process. The Chief Administrative Officer is responsible for many of the
mechanical steps required in the process including the calculation of all
average scores and the ranking of candidates.

Promotion beyond the rank of inspector is not governed by a formal
written procedure and involves a considerably less structured process.
Inspectors may apply to become a superintendent or staff superintendent by
submitting a resume, which is considered along with their annual per-
formance appraisal and related information prior to an interview by the
Chief and two Deputy Chiefs. A rank-ordered list of successful candidates
is forwarded for ratification to the Police Services Board, which in recent
years has interviewed each candidate in the presence of the Chief, who is
available to provide any required information.

As previously indicated, in Canadian police forces there is almost
universal promotion aspiration that far exceeds promotion availability,
which in turn results in widespread dissatisfaction. As might be expected,
this Commission's examination of morale in the NRPF identified promotion
as being a contentious issue. Furthermore, it would appear that the Force's
unique history has resulted in factors such as perceived factionalism and
favouritism exacerbating a generally perplexing occupational problem.
Unless a professionally developed promotion system is introduced, which
is not only fair, but seen to be fair, high levels of dissatisfaction will persist,
to the detriment of the organization's effectiveness.

Hiring and Promotion 27

I understand that the Board has recently engaged Dr. Coutts and Dr.
McGinnis, the highly regarded consultants who were retained by the Com-
mission, and whose workshop report was of great assistance to me in the
preparation of this report, to develop a promotional system for the Niagara
Force. The Board is to be commended for this progressive step, but as I
point out below, it seems to be needless duplication and expense for in-
dividual forces to be put to the very considerable expense for the pre-
paration of a system that could be adapted to all forces. However, until such
a system is made available, each force must design its own.

Undoubtedly, conditions peculiar to the NRPF led to certain subjects
being specifically included in the terms of reference of this Inquiry. In most
cases the connection between the subject area and unhappy results is readily
apparent, as is the case with hiring. While some specific occurrences will
be examined in detail in other chapters of this report, there are what might
be described as systemic issues, underlying many of the subjects in the
terms of reference, which have a provincial or even national dimension.
Hiring practices and promotional processes are examples of subject areas
which have long represented a challenge to police forces throughout
Ontario, if not Canada.

Historically in Ontario, individual police forces have, within the
broad framework prescribed by provincial legislation, largely been left to
their own devices to develop and administer their own hiring and
promotional systems. While police governing bodies are technically
responsible for all hiring and promotion, their involvement, except for the
most senior positions, has generally been limited to confirming the
recommendations of the Chief of Police. The Ministry of the Solicitor
General provides training for personnel officers, assistance with respect to
senior appointments and makes promotional examinations available to
police forces.

At the municipal level, the efforts of many police organizations in
the hiring and promotion fields has been commendable, particularly in light
of available resources. Nonetheless, a great deal of energy has been
expended by forces repeatedly refining their systems independently of each
other in pursuit of that seemingly elusive ideal. In many cases, promotion
systems are amended, often radically, every time selections are required.
Similarly, the mostly in-house recruiting and hiring practices have failed to
attract and select sufficient minorities and women to enable police forces
to reflect the composition of the communities they serve. Vacancies are
being filled, but state-of-the-art techniques, which increase the probability

28 Hiring and Promotion

of selecting superior performers, are either not being employed or are not
applied appropriately. The net effect is that individual police forces are
engaged in a seemingly endless tinkering with their selection systems in a
genuine effort to better their hiring and promotion decisions, resulting in
confusion and frustration within and without. The NRPF's experience is
typical of this pattern.

The time for a concerted, coordinated scientific approach to both the
hiring and promotion issues is long overdue. Furthermore, in doing so it
must be recognized that those issues cannot properly be addressed in isola-
tion from other components essential to a cohesive, sound, and effective
human resources management system such as job analysis, performance ap-
praisal, career development and succession planning.

The development and implementation of selection methods of scien-
tifically proven reliability and validity can be an arduous, time-consuming
and expensive task even for experienced human resources practitioners.
However, the cost not only in dollars but in potential ill-will from both
within and without the organization, makes it imperative that selection
methods employed by police forces conform to the highest possible pro-
fessional standards. Many police forces in Ontario simply could not afford
to independently obtain the expertise to develop such systems and, even if
they could, not only would some inconsistencies remain, but each would be
"reinventing the wheel" at public expense. As pointed out above, this costly
process has already begun in Niagara. This Commission had the consultants
mentioned earlier describe and assess the reliability and validity of various
alternative methods which could be introduced into the hiring and pro-
motional selection processes. Notwithstanding this information, or perhaps
because of it, I would not feel competent to design and recommend specific
processes, which utilize the best methods and, of equal importance, the
appropriate combination of them. Therefore, I am convinced it would be
entirely consistent with the present mandate of the Ministry of the Solicitor
General, Policing Services Division, to considerably expand and enhance its
role with respect to the development and implementation of sound hiring
and promotional systems by all Ontario police forces.

This is particularly opportune in light of the Ministry's endorsement
of the report of the Race Relations and Policing Task Force in 1989, which
put forward numerous recommendations with respect to the staffing of
police forces, including increased Ministry involvement in many facets of
their human resources management. Furthermore, since the proclamation of
the Police Services Act the Ministry has been actively involved with police

Hiring and Promotion 29

forces in the implementation of the employment equity provisions of the
legislation. In accordance with section 48 of the Act, as well as Ministry
guidelines, a committee of the NRPF is developing an employment equity
plan which is intended to increase the representation of four target groups
on the Force; namely, women, visible minorities, natives and the handi-
capped. The committee, chaired by Deputy Chief Parkhouse, has Board and
NRPA representation and has prepared a plan which has been submitted to
the Solicitor General for approval.

It would be a logical extension of the Ministry's current and con-
templated leadership role to comprehensively embrace all aspects of human
resources management by police forces, instead of confining itself to
specific narrow program priorities. I will be making a recommendation in
this regard.

2 PROPERTY

(A) STORAGE AND DISPOSAL OF PROPERTY
(1) The regulations

As mentioned in tlie introduction to this report, six briefs, averaging about
120 pages each, were submitted by the IIT to the department of the Attor-
ney General in June, 1987. The briefs set out what the IIT considered was
evidence of wrongdoing on the part of ex-Chief Gayder relating to a series
of occurrences, and asked the Attorney General's advice as to whether each
occurrence constituted a criminal offence. Most of the situations involved
the possession by Gayder of various handguns and other property of third
persons that had allegedly come into possession of the NRPF as a result of
seizures or voluntary surrenders.

The Attorney General's staff advised that there were not sufficient
grounds to support criminal charges, and it was presumably the angry re-
action of the IIT and the Board that prompted the inclusion of term of
reference N°. 2, namely to inquire into and report upon "the storage and
disposal of all property seized or otherwise coming into the possession of
the Force during the discharge of its responsibilities, with particular em-
phasis on the storage and disposal of firearms." It is this term I now
address.

Property of third persons can come into the possession of the Force
in a variety of ways, the most common of which are:

(1) Property seized by a member of the Force in the course of an
investigation.

(2) Property found by a Force member.

(3) Property found by a private citizen and turned over to a Force
member.

(4) Property voluntarily turned over to a Force member by the owner
thereof or by the estate or relative of the deceased owner.

(5) Property (usually a weapon) obtained by a Force member during the
investigation of a suicide.

32 Property

(6) Property obtained during investigation of a domestic dispute where
no charges are laid.

This hst is not exhaustive, but does underline the complexity of the
legal problems that may arise concerning the proper method of disposing
of such property. The answers can be as different as the ways in which the
property came into the Force's possession.

The answers to some of the situations most frequently encountered
at the time of the events considered by this Inquiry, based on the law as it
was until passage of the Police Services Act in 1989, appear to be as fol-
lows:

(1) Property seized by a police officer under a warrant in order to
obtain evidence during an investigation must, in due course, be
returned to the owner.

(2) Stolen property which is recovered by the police must be returned
to the owner, but if the owner cannot be located, it may be sold as
set out in paragraph (3).

(3) Found property must be returned to the owner if the owner can be
located. If the owner cannot be located, the property must be re-
turned to the finders unless they have expressly abandoned any
claim to it. If the finders have abandoned their claim, or if the
finder was a police officer, the property may be sold by the Force
with the approval of the Board of Commissioners of Police, and the
proceeds may be retained by the Board under the provisions of
section 1 8 of the Police Act.

(4) Property (such as a weapon) that is voluntarily turned in by an
owner or the relative or estate of a deceased owner, and who has
abandoned all claim to it, will be treated in the same manner as
found property whose owner cannot be located.

(5) Property obtained during the investigation of a suicide must be re-
turned to the deceased's estate unless any claim to it is abandoned
by the estate, in which case it will be treated in the same manner as
found property whose finder has abandoned all claims.

(6) Property voluntarily turned over to police who attend on a domestic
dispute is held on a voluntary bailment, and not under any statutory

Property 33

authority, and therefore must, in due course, be returned to the
owner unless all claim to it has been expressly abandoned.

Since its passage in 1 989, the Police Services Act has amended and
simplified the above provisions.

(1) All found, stolen or seized property, other than firearms or money,
must be returned to the owner, but where the owner cannot be lo-
cated and the property is not subject to a court order as to dis-
position, section 132 (2) provides that "the chief of police may
cause the property to be sold and the Board may use the proceeds
for any purpose that it considers in the public interest." There is no
provision for returning the property itself to the finder, although
presumably the Board could conclude that it was in the public in-
terest to give the proceeds to the finder. The common law provides
that the finder of property is entitled to possession of it subject only
to the rights of the true owner. A decision of the Ontario Court of
Appeal, confirming the common law, states that where a finder
turns in found property to the police and the police do not locate the
true owner, the property must be returned to the finder.'

It would be desirable to clarify the statutory provision, since
although the direction to the Chief to sell is permissive rather than
mandatory, it appears to be in conflict with the common law without
specifically overruling it. However, it should be kept in mind that there is
always the danger that a thief may use the 'Tinder' s-keeper's" law to
"launder" stolen items by turning them in to the police as found property
after removing all identification marks, and then claiming their return to
him as finder when the owner cannot be located. This particularly applies
to articles such as bicycles which are hard to identify. I shall recommend
a clarification of the legislation so that the statute conforms to the common
law, but it should allow the Chief or the Board a discretion to refuse to
return the property to a finder whom he suspects, on reasonable grounds,
of illegal conduct.

(2) Found, stolen or seized money is to be held for three months, and
if the owner has not claimed it, the Board may use it for any' pur-
pose it considers "in the public interest." Again, there is no re-
quirement that found money that is unclaimed be returned to the
finder.

Bird V. The Town of Fori Frances (1949) O.R. 292.

34 Property

(3) Firearms found, stolen, seized, or forfeited on a prosecution are to
be returned to the owner if there is a court order or other legal re-
quirement to that effect. Otherwise, the Chief shall ensure that they
are "destroyed promptly," unless the Chief considers a firearm to be
unique, antique or of educational or historic value, in which case the
Chief shall notify the director of the Centre of Forensic Sciences,
who then has three months to request it be sent to the centre for its
collection. Failing such request within three months of the notice,
the firearm shall be destroyed unless the Chief obtains the approval
of the Solicitor General for "some other method of disposal." A re-
port is to be filed with the Ontario Civilian Commission on Police
Services before January 31 in each year listing the firearms that
have come into the possession of the Force during the preceding
calendar year with particulars of the disposition of each one.

Had these provisions been in force at the time of the acquisition of
the firearms that have formed a significant part of this Inquiry, many of the
suspicions, rumours and allegations that plagued the NRPF would probably
never have originated.

It should be noted that the disposition of property seized under a
search warrant is not governed by section 132 of the Police Services Act,
but by the relevant provisions of the statute (usually the Criminal Code)
under which it was seized. These vary according to the nature of the prop-
erty and the manner of seizure. For example, a firearm seized pursuant to
a search warrant under section 103 of the Criminal Code must be taken be-
fore a provincial court judge and dealt with as the judge directs.^ Once the
relevant judicial proceedings are finished, or if no proceedings are com-
menced within a reasonable time, if the persons from whom the firearm was
seized are entitled to lawful possession, it must be returned to them; if there
are other persons who are the lawful owners, it must be returned to those
owners; if neither is the case, the judge may order that it be forfeited to the
Crown, and disposed of as the Attorney General directs, "or otherwise dealt
with in accordance with the law."

However, if a firearm is seized pursuant to section 102 (rather than
under the search warrant provision above) and the registered owner cannot
be found, the peace officer must take it before a provincial court judge who
may declare it to be forfeited to the Crown, to be disposed of as the Attor-
ney General directs. Since the interpretation section of the Criminal Code

s. 103 sets out the variety of orders the justice may make.

Property 35

provides that Attorney General means the Attorney General or the Solicitor
General of a province, there would appear to be no conflict with the policy
of the Ontario Police Services Act. On the other hand, if a firearm is seized
under section 101 of the Code (commission of an offence relating to pro-
hibited or restricted weapons etc.), it must be dealt with in accordance with
sections 490 and 491 of the Code.

It is easy to understand that a police officer might have difficulty,
without expert assistance, in finding the proper path through this legalistic
jungle, particularly as it existed from at least the 1950s through to 1989, the
period during which the privately-held firearms relevant to this Inquiry were
acquired, and this becomes relevant in assessing possible misconduct on the
part of someone who did not follow the correct legal fork in the road. An
examination of Force policy between 1972 and 1987 indicates that expert
assistance was not utilized by the Force or the Board. For example. Routine
Order N°. 28/72, the first Force order dealing with "Storage and Disposal
of Found and Seized Property," provides that found property will be re-
turned to the owner as soon as possible; if the owner cannot be located the
property is to be held by the detachment property officer, and, failing
location of the owner within a further period of three months, it is to be
returned to the finder. However, bicycles and firearms were expressly ex-
empted from this provision, and were to be disposed of in accordance with
the provisions of the Police Act; that is by sale, subject to the approval of
the Board.

This policy, as it relates to bicycles and firearms, is, as we have
seen, contrary to law, but presumably would have appeared to members of
the Force to be a lawful order. Although the Routine Order was amended
in many respects between 1972 and 1987, this part remained unchanged un-
til after this Inquiry commenced.

The same order provided that a copy of the property tag was to
remain with the property until disposal, the property being stored with the
property officer of the division or detachment in which it had been seized
or found. It further provided that "the Administration Branch" was re-
sponsible for disposal of all unclaimed property. Evidence was that this
referred to the Property Branch, generally known as "Supply." This pro-
vision remained in force through to 1987.

On September 24, 1974, the Divisional Commander of N°. 3 Di-
vision (Welland) sent an order to all ranks of that division, warning that no
officer could retain any seized or found article in his possession, or "store

36 PropL.rty

them in his locker or desk or otherwise control them." A copy of this order
was sent to James Gayder, who testified that he agreed with the order.

In 1982, a similar warning was brought to the attention of Force
members by Bulletin 13/82 which provided:

(1) All property must enter the property system either as found or
seized.

(2) No officer shall retain possession of, or store, any item of property
outside the property system.

(3) Members of the Force cannot claim any property which has been
entered into the Force property system, regardless of reason.

This policy remained in force until 1987.

(2) The facilities

The facilities, or lack of them, for the storage and recording of Force prop-
erty, and of non-Force property such as seized items retained as court ex-
hibits, are described later in this Part in the section on Quartermasters
Stores.^ For the moment, I simply point out that, from regionalization on-
ward, and presumably even before that, these facilities have been, and still
are, completely inadequate and undoubtedly contributed to the problems re-
lating to the handling of non-Force property which, in turn resulted in many
of the allegations investigated by the Commission. Recommendations in this
regard are set out at the end of this Part.

(3) Weapon trades

One of the areas investigated by the IIT and one which generated much
publicity both leading up to, and during this Inquiry, was the practice of
trading seized, found and used firearms to suppliers of police equipment in
exchange for new equipment. The IIT apparently believed that these trades
had been taking place on a regular basis under the direction of Chief Gay-
der without the knowledge or authorization of the Board. In their brief to

See p. 87.

Property 37

the Attorney General, they particularly referred to an April 17, 1980, tran-
saction in which they concluded that 210 weapons were sold, not traded, by
Gayder to Rick Smith Sports, without any record of what happened to'the
proceeds. In that brief, they posed the following question to the Attorney
General: "Did James Gayder have the right to sell or trade confiscated
weapons without the express consent of their owner (The Niagara Regional
Board of Commissioners of Police) and in so doing, did he commit the
offence of Theft as defined in the Criminal Code ofCanadaT The Ministry
of the Attorney General replied that it did not consider that there were
reasonable grounds for laying a charge of theft. In its report to the Board,
the IIT registered its strong disagreement.

The evidence before the Inquiry made it clear that the practice of
trading seized and found firearms and used Force weapons to equipment
suppliers as an offset against the cost of new purchases had been in ex-
istence for many years, not only in the Niagara area forces, but throughout
Ontario, and probably much of Canada. Items traded included seized, found,
confiscated and turned-in handguns, "long guns" (rifies and shotguns), pellet
guns and knives, as well as used Force handguns and "long guns." In ex-
change, the Force would receive police equipment such as handguns, sirens,
handcuffs, and bombsuits. Evidence was produced of weapon trade's in the
1960s (with indications that they occurred long before that) by both the
Niagara Falls and St. Catharines municipal forces. John Wolff, of Albion
Arms, was the principal supplier to the NRPF until Robert Smith took over
the business in 1973. Smith stated that he continued his predecessor's prac-
tice, and accepted trade-ins of weapons from other Ontario forces, such as
Kingston, North Bay, Windsor and Kitchener.

Following the 1971 amalgamation, trades took place every 12 to 15
months. At first. Chief Shennan was the principal contact with the suppliers,
then, in 1973, Inspector Ronald Bevan took over this responsibility. When
a trade was planned, Gayder, who at that time was Deputy Chief (Adminis-
tration), would evaluate the weapons on behalf of the Force. At the time of
the trade, Robert Smith would submit his own evaluation, and he and Gay-
der would negotiate a figure to be included by Bevan as a credit in the pur-
chase order. The value of these credits ranged between $2,000 and $6,000
per trade. The main value lay in the "long guns" and a few better quality
handguns. Most of the confiscated guns were of a very cheap type, referred
to as "Saturday Night Specials," worth, as Smith put it, "$5 if they clicked,
$2 if they didn't," and were used mainly for parts. Only credits were re-
ceived, and no money was ever received from the dealer. Pellet guns, air

38 Property

rifles and knives were transferred to Albion Arms just to get rid of them,
without any value being allowed.

Albion Arms went out of business in 1979 when a change in gun
legislation made the business no longer profitable, but Robert Smith's
brother Rick carried on a sporting goods business under the name Rick
Smith Sports, and did a limited business in firearms. Following the closing
of Albion Arms, the only further trade of seized and found weapons was
made on April 17, 1980, to Rick Smith Sports, in exchange for a "bomb-
suit," and thereafter such trades ceased. Trades of used Force weapons (not
seized or found guns) apparently continued until the passage of the Police
Services Act in 1989. Section 134 of that Act now prohibits the practice.

On at least two occasions, guns seized by the Force and identified
as having been stolen from a registered owner were traded without the
owner's consent. In one case, a gun registered to a Niagara citizen, which
had been stolen from the citizen's home without his knowledge, was re-
covered by the Force on May 16, 1978, and a record search revealed the
name of the owner. Due to inadequate follow-up, the owner was not noti-
fied. About a year later, the owner discovered the gun was missing, and
reported it to the Force, but apparently no one checked to see if it had been
recovered, and it was included in the April 17, 1980, trade to Rick Smith
Sports in exchange for the bombsuit. Later, someone tried to register the
gun in New Brunswick, and a routine RCMP check revealed its history.
This resulted in the NRPF having to buy the gun back and return it to the
owner.

In another incident, two guns registered to another Niagara citizen
were stolen on June 16, 1976, and the theft was reported to the Force. On
July 18, 1976, one of the stolen guns was recovered by the Force as a result
of an arrest following an armed robbery. Again, inadequate follow-up resul-
ted in the owner not being notified, in spite of his report of the theft only
a few weeks earlier. The mistake was revealed by a subsequent internal
audit, the Complaints Bureau was notified and its investigation revealed
what had happened, but still no one notified the owner. During the Inquiry
investigation, the owner was contacted, and he gave evidence at the Inquiry.
He stated he still wanted his gun returned, and that being impractical, the
Force paid him the value of the gun.

It is apparent that the Force had problems with its property system,
particularly in relation to returning identified guns to owners after they were
used as exhibits in court. This was not created by the practice of gun tra-

Property 39

ding, since the result for the owners would have been the same had the
guns been destroyed.

There is no evidence of any deliberate impropriety with respect to
the practice of trading firearms for police equipment, and the Board of
Police Commissioners was aware of the practice and received reports there-
on. However, the practice resulted in a revenue of only $2,000 to $6,000 a
year, an amount relatively insignificant in a budget that runs into the tens
of millions of dollars, and not worth giving the impression that the Force
was insensitive to the risk that traded weapons might become available for
purchase by criminals. Fortunately, as already mentioned, the problem has
now been eliminated by the provisions of the Police Services Act.

40 Property

(B) HANDGUNS REGISTERED TO JAMES GAYDER

When closet 374 was opened on February 23, 1987, an inventory dis-
closed that it contained 136 handguns, a number of rifles and shotguns, and
several hundred knives such as switchblades, ordinary kitchen knives,
butcher knives, pen knives, martial arts weapons, and police records and
documents.

It was well known that Gayder was a collector of guns, mainly
handguns. Sixty-one handguns and one M-1 carbine were registered in his
name. Twenty-six of these handguns were located in closet 374. Of the total
of 61 handguns registered to Gayder, 60 registrations were conversions from
the old Fanfold system which came into existence around July, 1950, and
was administered by the RCMP. Conversion to a single certificate system
(a separate certificate for each gun) began in 1969 and was completed in
197 1 . Accordingly, 60 of the handguns registered to Gayder must have been
acquired by him prior to 1971. The remaining handgun, a .22 calibre
Frontier Scout, referred to as the "Lamonte gun," was registered to Gayder
on September 26, 1974. This was the last handgun registered to Gayder.
The M-1 carbine was registered to him on March 19, 1979. There was no
legal requirement to register such a weapon until January 1, 1979.

Because of the allegations of impropriety contained in the IIT
reports and rumours circulating both within and outside the Force, it was
necessary for the Commission to inquire into the history of the Gayder
guns.

(1) Guns received from Chief Brown

The OPC had investigated Gayder's gun collection in 1984. Gayder told the
OPC investigators on July 6, 1984 that 25 of the guns registered to him had
been given to him by then-Chief Brown. Brown was Chief of the St.
Catharines Force from 1950 to 1959, and is now deceased. Fourteen of
these guns were found in closet 374. Gayder does not know where Brown
obtained the guns and it seems probable, in view of what appears to have
been the very loose practice at that time, that they came into his possession
as a result of seizures, voluntary turn-ins or as found weapons. Counsel for
Gayder submits that there was no policy or legislation at that time regarding
such guns, and that it was not considered illegal or contrary to policy to
accept guns under such circumstances; if the donor was the Chief, one did
not question their origin, but assumed that there was no problem without

Property 41

really thinking about it. Although it had no foundation in law, this concept
that the Chief was the Chief and had the authority to take such action
appears to have been accepted without question in those days, if, in fact,
any real thought was given to the matter. It is easy to lose sight of the fact
that the era in question is the 1950s and 1960s. The casual attitude toward
guns at that time may be difficult for recent generations to understand.
Many war veterans had returned from overseas with souvenir handguns,
registration requirements were not strictly followed or enforced, and gun
crimes were infrequent. As one of the OPC investigators told the IIT, and
repeated in his evidence before the Inquiry, in those days practically every
Crown Attorney, detective sergeant or police chief had at least one firearm
hanging on his office wall as a souvenir. Apparently at that time the source
of the gun was not considered of any great importance. I will comment on
this attitude later in relation to the Welland guns.

(2) Guns received from Chief Shennan

Gayder told the OPC investigators, and repeated before the Inquiry, that six
of the guns registered in his name were given to him by then-Chief Shen-
nan, and that Shennan personally detested firearms. In the absence of any
evidence to the contrary, it is assumed that their origin was the same as the
Chief Brown guns, and accordingly, the same considerations would apply.

(3) Guns received from James Gayder's grandfather and
uncle Jack

Gayder told the OPC, and confirmed in his Inquiry testimony, that he was
given two of the guns registered to him by his grandfather, and one by his
uncle. Jack McGlashan.

(4) Guns previously registered in the names of third
parties unknown to James Gayder

Certificates of seven of the guns registered to Gayder showed the previous
owner as a name unknown to Gayder and he stated that they must have
been given to him by other police officers. One of these was the Munson

42 Property

gun which Gayder testified was given to him by Walsh.'* Another one, pre-
viously registered to one Moore of R.R.I Welland, could also be one of
those obtained from Walsh.

Since there is no evidence that the other five were obtained under
the authority of a "Chief," they are not in the same category as the "Brown"
and "Shennan" guns, and presumably were acquired by Gayder in the 1950s
or 1960s as seized, found or turned-in weapons. My later comments on the
acquisition of the Welland guns also apply to these.

(5) The Welland guns

The IIT's examination of Gayder' s gun registrations following the opening
of closet 374 revealed that 13 handguns registered in Gayder's name had
previously been registered to the Welland Police Department. These guns
were recorded on Gayder's old Fanfold, which also gave the source as the
Welland Police Department. Seven of the guns were found in closet 374.

The IIT noted that the 1984 OPC report stated that Gayder had told
the OPC investigators that he had obtained the Welland guns from the Wel-
land Police Department. VanderMeer interviewed Fred Wilson, the retired
Chief of the Welland Force, on August 21, 1987, and prepared a will-say
for him, which he signed, which set out that he was 81 years of age, having
retired as Welland Chief on December 31, 1970, at regionalization, and that
he had never sold or given guns to Gayder or anyone. It added that no one
had the right to give or sell Gayder seized or found guns. This will-say was
forwarded to the Attorney General with the IIT brief.

The IIT brief set out the above facts briefly and stated: "By virtue
of the Regional Municipality of Niagara Act and the Police Act of Ontario,
Mr. Wilson did not have the authority to turn the thirteen guns over to Gay-
der for his personal use, and Gayder did not have the right to acquire the
guns and transfer them into his own name. Considering all the circum-
stances pertaining to Gayder's possession of the aforementioned weapons:
Does the acquisition of those fifteen [sic] weapons by Gayder constitute
Theft, as defined in the Criminal Code of CanadaT

* As one of the Welland guns described below.

Property 43

Subsequent to the brief being sent to the Ministry of the Attorney
General, it was advised that the IIT had learned that one of the guns which
Gayder had identified to the OPC as having come from the Welland Depart-
ment in 1971 had been stolen in Sacramento, California, in 1973, and so
could not be a Welland gun.^ Wolski, of the Crown law office, in his re-
sponse on behalf of the Attorney General's Ministry, pointed out that, in the
OPC's 1984 report it was stated that Walsh had told the OPC investigator
that at the time of the Force's regionalization on January 1, 1971, Wilson
had agreed that Gayder could take the guns and register them in his own
name. Wolski contrasted this with the will-say of Wilson, and considered
that the conflict undermined Wilson's statement. Referring to the California
gun, Wolski stated that there was no evidence to connect Gayder with the
theft, and "at its highest" Gayder would only be guilty of lying about that
gun coming from Welland. He accordingly believed that there was not suf-
ficient evidence to justify a criminal charge. The IIT roundly criticized
Wolski's conclusions in its report to the Board.

As has already been seen, 20 or more years ago the attitude in re-
lation to guns and their transfer was casual to the point of carelessness, and
it is apparent from other evidence that this attitude was not confined to
Gayder, but was quite general amongst police personnel, however mis-
guided it may have been.

Due to the greatly increased incidence of gun-related deaths in the
last 10 or 15 years, there has developed a public revulsion against the pri-
vate ownership of guns, and what was accepted 20 or more years ago is
completely unacceptable now.

There can be no doubt that in the present atmosphere it would be
misconduct for a police officer to convert to his own use seized or found
guns, and the new Police Services Act specifically provides for the proper
disposition of such weapons. Since there apparently was no written policy
regarding found or seized firearms prior to the 1971 regionalization in any
of the Niagara Region Police Forces, nor for some time thereafter, Wolski's
conclusion that there were insufficient grounds for the laying of criminal
charges against Gayder in relation to firearms can be understood. It is
necessary to judge Gayder' s conduct in assembling his gun collection in the
light of the mores of the time, and to take into account the very casual and
unorganized manner in which guns were sometimes thrown into a safe,
storeroom or drawer without properly recording them.

See The "California gun" Investigation, p. 233.

44 Property

From regionalization forward, however, Gayder was a very senior
officer, and at least part of the time was the Deputy Chief in charge of
Administration, including storage and disposal of property. It was his duty
to ensure that regulations were passed, and enforced, that would ensure that
firearms were properly dealt with. Apparently, as noted above, the first
written order in this regard was issued by a divisional commander at about
the same time as Gayder was registering his last acquired handgun.^ It
appears that he let his personal hobby (Walsh referred to him as a "gun
nut") and his interest in a Force museum affect his attitude towards Force
policy in relation to guns, and by his casual approach to gun regulations left
himself and others open to allegations and rumours that caused harm to the
reputation of his Force, and contributed to the call for a public Inquiry.

Nevertheless, bearing in mind the very different standards generally
accepted at the relevant times, I cannot characterize Gayder' s errors in
judgement as misconduct within the meaning of term 12 of the Order in
Council.

Due to the provisions of the Police Services Act, this situation
should not arise again, and the only recommendation called for is the
obvious one that the provisions of section 132 of the Act be strictly com-
plied with.

(6) The Lamonte gun

In December 1972, Norman Lamonte, of Fort Erie, found a .22 calibre Colt
revolver in a snow bank, and turned it over to Constable Koczula at the
Fort Erie Detachment of the Force. The gun and three loose rounds of am-
munition were in a holster. Koczula attached to it a property tag with a tick
mark in the box indicating that the fmder wished to claim it should the
owner not be found. The gun was unregistered, the owner was not located
and the gun was sent to Supply at 68 Church Street, St. Catharines. Mr.
Lamonte, in his evidence, stated that he at first asked to have the gun re-
turned to him, but when he asked its value, he was told that it was a cheap
item of little value. He then asked what normally happens to such items,
and upon being told that they were melted down, he said he wanted "no
part of it." He was asked at the Inquiry: "Q.— So, in 1972 when you turned

The Lamonte gun, described below.

Property 45

the gun in, you were content to have it melted down? A — Yes."^ Neverthe-
less, the property tag continued to note that the finder wished to claim it.
On September 26, 1974, the gun was registered in the name of James Gay-
der, and the registration states that it was obtained from Albion Arms. The
gun, in its holster with the three rounds of ammunition, was found in closet
374. The property tag, no longer attached to the gun, was found in a box
inside the closet. The IIT considered that the presence of the tag in the
closet indicated that the gun had never been included in a gun trade, since
tags were always removed and discarded when a gun was traded. Gayder
told the OPC investigators in 1984 that he purchased the gun from Albion
Arms. In his Inquiry evidence, he stated that, following a 1974 trade-in of
weapons, including the Lamonte gun, to Bob Smith of Albion Arms, he told
Smith that he would like to have that gun because he was doing a good
deal of target practising and did not have a .22 handgun. He did not recall
paying for it, and assumes Smith gave it to him. Robert Smith stated that
police officers frequently purchased guns from him at the time of trade-ins,
but he couldn't remember selling or giving a handgun to Gayder, although
he "couldn't exclude the possibility."

The IIT posed the following question to the Ministry of the Attorney
General: "Considering all the circumstances pertaining to the Lamonte trans-
action: did James Gayder commit Theft as defined in the Criminal Code of
CanadaT Wolski's report stated "In these circumstances there is no evi-
dence upon which an honestly held belief can exist on reasonable and prob-
able grounds that the element of fraudulently and without colour of right
can be satisfied." The IIT report to the Board submitted that Wolski had
missed the "seminal issue" of whether offences under Part 1 1 .1 of the Code
(presumably possession of an unregistered restricted weapon) had been
committed by Gayder in registering the gun to himself without author-
ization, and that "colour of right" was insignificant in view of the action of
conversion to Gayder' s own use.

The evidence, given some 15 years after the event, is too vague to
permit a finding of fact, but the documentary evidence that the registration
in Gayder's name came more than a year and a half after the gun was
turned in to the Force, and shortly after a trade-in of guns to Albion Arms,
is consistent with Gayder's version that he received it from Robert Smith.
If so, on Gayder's evidence, it probably was a gift, carrying with it the im-
plication, and appearance, that Gayder was benefitting from the Force's
business dealings with Albion Arms. Transactions between a public body

' Inquiry transcript, vol. 13 (Dec. 7, 1988): 147-8.

46 Property

and commercial dealer must be, and give the appearance of being, at arms
length, and that was not the case here. I have no hesitation in concluding
that it is improper for any police officer, and particularly a senior one, to
accept any personal benefit from a transaction between his Force and a third
party.

(7) The Tom and Fern gun

In January 1968, as the result of a phone call. Detective William Murdoch
and James Gayder, who was then-Inspector of Detectives, went to the Tom
and Fern Restaurant in St. Catharines where they found three handguns, a
Browning .765, a Mauser .635 and an H & R .32, in the paper dispenser in
a washroom. A record search revealed that these guns were not registered.
Subsequently, the H & R was registered to Murdoch on September 18,
1968, the certificate indicating that it had no prior registration and had been
obtained from the St. Catharines Police Department. The Mauser was regis-
tered to James Gayder on September 3, 1968, showing no prior registration
or source. The third gun, the Browning, was registered to a William Crozier
Price on an unknown date and was subsequently transferred to a Gerald Pat-
rick Roach on May 29, 1972.

Murdoch does not recall having the H & R registered to himself, but
states that if he had done so, it would only have been after obtaining per-
mission from Chief Shennan. However, he has no recollection of doing this,
or of having the gun in his possession after the original seizure. Constable
Melinko of the TIT questioned Murdoch on September 24, 1987, and his
notes record Murdoch as saying "Gayder must have gotten these guns —
why did he keep this?" Murdoch denies making such a statement.

Neither of the guns has been located, and their existence became
known only through registration records. Gayder told the OPC investi-
gators that he obtained the Mauser from Chief Shennan. In his Inquiry evi-
dence, he stated "I just do not recall the incident as to how he gave me the
firearm," but insists that he would not have kept it without Shennan's per-
mission. Under further examination, he stated that the question of any in-
terest of the Attorney General or of the Crown Attorney in the guns was
never discussed or even considered, since at that time it was taken for
granted that such seized guns were Force property, and if the Chief wanted
to make a gift of such a gun to him as a Force member, he would not even
consider questioning its source. He stated that he had not known that the H
& R had been registered to Murdoch.

Property 47

Both Mr. Price and Mr. Roach are deceased, and there is no evi-
dence to explain how the third gun, the Browning, came to be registered to
Price and then to Roach, although Gayder, in making out the General Oc-
currence Report (GOR) on the Tom and Fern Restaurant incident, recorded
Price's name and address on the reverse side. Gayder states he has no re-
collection that would explain this.

The IIT posed the question to the Attorney General as to whether,
on the evidence, Murdoch and Gayder committed the offences of breach of
trust and theft. Wolski reported: "On the basis of the evidence an honestly
held belief does not exist based on reasonable and probable grounds to sub-
stantiate this allegation. There is no evidence available to prove or dis-
prove how Gayder acquired this weapon. There is therefore no evidence to
prove that he acquired it through some fraudulant [sic] means." The IIT in
its report to the Board submitted that there was uncontradicted evidence that
Gayder obtained the weapon on January 31, 1968, and registered it in his
own name, and that it was not Shennan's to sell nor Gayder' s to buy, and
Gayder should be presumed to have known that it was the property of the
Police Board.

As is the case with so much of the evidence about gun transactions,
uncertainty of recollection in relation to the events surrounding the Tom and
Fern guns is blamed by the parties upon the effluxion of time. On such
vague evidence given over 20 years after the events in question, I am not
prepared to conclude what the true explanation is as to how the guns came
to be registered in the various names. As earlier stated, by today's stand-
ards, any transfer of found guns to police officers would be improper. There
is no available evidence as to the position of the Board of that day in
relation to the disposal of guns, or whether it was as casual as that of the
police themselves. However, under the circumstances that existed at the
time of their investigation, the suspicions of the IIT can be well understood.
For this Commission, the important issue is that the evidence shows what
harm can be done to the image of a police force by actions giving the
appearance of impropriety. As already pointed out, because of the new
Police Services Act legislation, no recommendations are required, and all
police personnel can now be assumed to be aware of their responsibilities
in relation to found and seized property.

48 Property

(8) The Ross guns

On January 18, 1969, as the result of a domestic dispute, the Force seized
five weapons from one Alexander Ross. There were three handguns (a High
Standard, a Browning, and a Dusek Duo), a Beretta shotgun, and a C.I.L.
.22 rifle. Ross testified that he attended at the police station the next day to
find out about the disposition of the weapons and met Gayder who at that
time was an inspector with the St. Catharines Police Force. Gayder sug-
gested to him that he should not have guns in his possession. It appears that
Ross had a serious alcohol problem at that time. Ross says he told Gayder
that he wanted the guns returned to him. The Register of Seized Firearms
for 1961-74 contains a note, recorded by Gayder, that the three handguns
were delivered to Sergeant Dawson of the Property Branch, and then sold
to Nepon Enterprises. There was evidence that Dawson was a friend of Jack
Nepon, the proprietor of Nepon Enterprises, also known as Jack's Army and
Navy store. The "long guns" were returned to Ross on February 26, 1969,
and he signed for them in the register, but did not sign for the disposition
of the handguns.

Gayder does not recall ever seeing or knowing Ross, and states that
he purchased the Browning and Dusek Duo from Gary Nepon. Gayder' s
Fanfold records the registration of these guns in his name on February 19,
1969, as a transfer from Ross, and the further sale of the Browning to one
Herschel Lahey on March 24, 1969. Gayder recalls selling the gun to
Lahey, a gun collector friend, for $50. The High Standard handgun was pur-
chased by Gary Gilligan, a gun club member, at the St. Catharines Police
Station, from someone he identified as Sergeant Dawson, the Registrar of
Firearms (now deceased), to whom he had been referred by a fellow gun
club member who was a policeman. Arrangements for registration and a
carrying permit were made at that time, and the gun was registered as a
direct transfer from Ross to Gilligan on February 19, 1969. Although the
carrying permit was not issued until May 29, 1969, Gilligan was permitted
to carry away the gun in a paper bag.

As a result of a second domestic dispute on March 30, 1969, four
weapons were seized from Ross: the Beretta shotgun, the C.I.L. rifle, a
Winchester shotgun and an old ceremonial sword. Ross signed the register
for all four weapons on April 1, 1969, although it appears that only the
Beretta and the .22 rifle were actually returned to him. Gayder made a no-
tation in the register that the Winchester shotgun was "returned to Jack
Army and Navy Apr. 1/69 by Ross."

Property 49

As a result of a third domestic dispute, on or just prior to June 9,
1969, five weapons were seized from Ross: the Beretta shotgun, the .22
C.I.L. rifle, a Model 900 C.I.L. rifle and two large knives. Gayder recorded
in the register that the Beretta, the .22 rifle, and the two knives were "sold
to Nepon Enterprises June 6/69," and that "Nepon" was the "owner" of the
Model 900 C.I.L. rifle. Adjacent to each item was the signature "Gary
Nepon."

No one seems to recall the circumstances surrounding these no-
tations. It appears that, at that time, one Jack Nepon owned a company
called Nepon Enterprises, which carried on a retail business as Jack's Army
& Navy. The store sold sporting equipment, including handguns, shotguns
and sporting rifles. Jack's son, Gary, started to work in the store in 1963
when he was 16, and continued until 1970. His brother, Bruce, also worked
there.

Gary Nepon identified his signature in the Register adjacent to all
five items, but has no recollection of obtaining these weapons from the
Force. He does not know Ross and never loaned the Model 900 C.I.L. to
him. Ross testified that he knew Gary Nepon and his brother Bruce when
they worked in their father's store, and used to buy hunting and fishing
equipment from them. He played poker with Bruce on one occasion. He
stated that he originally received the Beretta shotgun from "Nepon" in
respect of a poker debt.

Gayder testified that he purchased the Beretta (as well as the Dusek
Duo and the Browning referred to above) from Gary Nepon. Nepon has
known Gayder since he was a youngster (his father was a friend of Gay-
der) but has no recollection of selling or giving any guns to him. Jack
Nepon, the father, died in 1982. The store closed at some unspecified time
prior to that.

The IIT did not locate and interview Ross until after the October 15,
1987 meeting with the Attorney General's staff, and so the matter of the
Ross guns was not put to the Attorney General. However, at the Inquiry the
subject was vigorously pursued by several of the parties.

Once again, evidence given after the passage of more than 20 years
since the events in question is so vague and equivocal that it is impossible
to draw clear conclusions from it. Ross was admittedly having serious alco-
holic problems in 1969, which may have resulted in faulty recollections of
the events. Gary Nepon's signatures acknowledging receipt of the Beretta,

50 Property

the .22 rifle and "two large knives," and ownership of Ross's 900 C.I.L.
rifle remain unexplained, as do the entries regarding Sergeant Dawson's sale
of Ross guns to Nepon, and Gilligan's purchase from Dawson.

There are at least three possibilities: (1) That Ross voluntarily turned
over the weapons to the Force, without expectation of their return because
of the trouble he had had in relation to them; (2) That he turned in the
weapons with the clear understanding that it was for safekeeping, expecting
their return when his domestic troubles were solved, and (3) That he sold
or gave them to Nepon and/or Dawson so that he would not get into trouble
with them again.

As to the first possibility, no one but the Crown or the Board had
a right to the guns, although, as we have seen, in those days that was not
clearly understood.

In the second case, it would be grossly improper for Gayder, Daw-
son or Nepon to deal with them at all. However, if they were to be kept
only temporarily, one would assume that, in due course, Ross would have
asked for their return, and there is no evidence, even from him, that he did.
He did speak of a fourth occasion, in 1971, or later, when a .765 handgun
was seized from him, and he did not ask for its return on the advice of his
lawyer.

The third possibility would seem to explain the sale by Dawson, and
the purchase by Gayder from Nepon, although Gary Nepon does not recall
it.

The whole confusing episode is another commentary on the ex-
tremely loose property policy in force in the NRPF and its predecessors in
the past, and the important point for this Commission is not the assignment
of blame for events occurring two decades ago, just before regionalization,
but to profit from the lessons learned. Perhaps as a result of these reve-
lations, the policy and practice has been greatly improved by Chief Shov-
eller, and if the Commission recommendations are implemented, the prob-
lems should not recur.

(9) The allegations of D.B.

On September 12, 1990, the Inquiry was about to adjourn to allow coun-
sel to prepare their submissions after nearly two years of evidence, when

Property 51

a short adjournment was requested by Board counsel. Upon resuming, coun-
sel for Sergeant VanderMeer, who had not attended the hearings for some
time, reappeared to submit rather dramatically that Commission counsel had
improperly withheld from the Commission evidence of one D.B. which
would "overwhelmingly vindicate" his client in relation to suggestions that
VanderMeer had spread false rumours about then-Chief Gayder. As a result,
the Inquiry investigators were dispatched to investigate the allegation;
extensive briefs were prepared, and D.B. and a number of other witnesses
were in due course called to testify.

D.B. had been an RCMP officer from 1967 to 1978. During most
of that period he worked in the Customs and Excise Section of the RCMP
Niagara detachment. In the early 1970s Sergeant Gerald Ryan of the NRPF
provided him with information relating to persons smuggling goods into
Canada from the United States. In 1972, D.B. arranged to have Ryan offi-
cially established as an RCMP informant, so that he could receive money
to pay sub-informants. According to the application, Ryan had the
permission of his Chief for this operation.

Sometime in the 1970s, Ryan advised D.B. that Sergeant Ed Lake
of the NRPF was smuggling goods into Canada, and rather than prose-
cuting, D.B. gave Lake a warning. He later learned that Lake was still
smuggling, and Ken Booker, his detachment commander, advised Deputy
Chief Gayder that the RCMP intended to execute a seizure. Booker testified
that no attempt was made to persuade him to reconsider, and that it was
apparent from the success of the operation that Lake had no warning.

A search of Lake's residence under a Customs search warrant took
place on January 29, 1976, and some 64 items were seized as having been
brought into Canada without payment of duty. Lake admitted his guilt.
RCMP policy was that criminal charges were normally not laid unless there
was a commercial aspect to the offence, which was not the instant case.
D.B. was emphatic that there was no special consideration given Lake by
the RCMP.

During the operation, the RCMP officers discovered in Lake's base-
ment a large number of items they presumed were NRPF property exhibits
and notified NRPF Chief Shennan. Thereafter, Staff Sergeant Ciszek of the
NRPF handled the property matters, and D.B. was in charge of the customs
matters. As a result of the investigation. Lake was charged under the Police
Act with discreditable conduct and neglect of duty, and the Board elected

52 Property

to have the charge tried before a judge, as was permitted under the Act.
Lake pleaded guilty and was penalized eight days' pay.

D.B. testified that he was "upset" about the outcome of the charges,
because he considered the penalty to be too light and that criminal charges
should have been laid, and spoke to Ryan about it. He testified that Ryan
told him the reason for the light penalty was that "Sergeant Lake had some-
thing on then-Deputy Chief Gayder" and explained that, being in charge of
the property unit, Lake knew that Gayder was in possession of guns that
had been seized by the Force.

D.B. testified that Ryan said he would obtain documents to show he
was right, and later at the RCMP office, in the presence of Ken Davidson
of the NRPF, gave D.B. a brown envelope containing NRPF General Occur-
rence Reports (which would set out the circumstances of a seizure and are
referred to as GORs) and some photocopies of gun registrations in Gayder' s
name. He testified that Ryan suggested that he get all Gayder' s gun reg-
istrations from Ottawa and compare them to the GORs, and that they had
a general discussion in which "all three of us came to the consensus that
Deputy Chief Gayder was a crook."

He then obtained Gayder' s gun registrations from Ottawa, compared
the serial numbers with the GORs, and found 17 that matched. He testified
that he made copies of the documents, gave them to Ryan, and a few days
later Ryan told him that he had turned them over to his superior officer,
James Moody. This was his last connection with the matter until some years
after his retirement from the RCMP when Mark DeMarco introduced him
to Gerry McAuliffe of the CBC. He testified that he gave copies of Gay-
der's gun registrations and the GORs to McAuliffe. On July 3 and 5, 1984,
McAuliffe broadcast on CBC radio two stories about Gayder's gun col-
lection.

In his interview with the Commission investigators, D.B. stated that
he believed McAuliffe returned to him all the documents he had given Mc-
Auliffe, but in his evidence before the Inquiry he denied ever receiving
anything back.

Having heard in April, 1989, that McAuliffe might go to jail rather
than reveal the sources of information sought by the Inquiry, and knowing
that he was one of the sources, D.B. approached the Commission investi-
gators, and was interviewed by them on April 20, 1989.

Property 53

In the late summer of 1990, D.B. met VanderMeer in another con-
nection, and upon the Inquiry being mentioned, he gave VanderMeer a copy
of his April 20 interview. VanderMeer then prepared a "will-say" for D.B.,
and it was upon this will-say that VanderMeer's counsel, Mr. Rowell, based
his September 12, 1990 allegations that Commission counsel had withheld
relevant evidence.

In view of the seriousness of the accusation and the publicity it en-
gendered, I must examine the relevancy, accuracy and materiality of D.B. 's
evidence.

Allegations and rumours about Gayder's gun collection made any
reliable evidence about his acquisition of Force guns relevant to this In-
quiry. The essence of D.B.'s evidence was that he had received from Ryan
GORs which, when compared with Gayder's gun registrations, matched the
serial numbers of 17 of Gayder's guns. His will-say stated that the GORs
he allegedly received from Ryan were Niagara Regional Police reports. A
GOR report, would, of course, be prepared at the time of the occurrence.
Accordingly, if D.B.'s evidence is correct, his GORs could not have related
to Gayder's guns, since all of those guns, apart from the "Lamonte" gun,
were registered in Gayder's name before the creation of the NRPF. D.B.'s
evidence was that he gave the gun documents to McAuliffe in 1981. This
must have been faulty recollection, since McAuliffe' s broadcasts about them
were in July, 1984, and my impression of McAuliffe was that he would be
unlikely to sit on such a story for three years.

By the time D.B. approached the Commission investigators in April
1989, the Inquiry had already heard by way of direct evidence how Gayder
came into possession of many Force guns. Gayder himself had admitted in
testimony that a good portion of his collection, possibly as many as 49
guns, might have come into the possession of various Force personnel as
seized weapons and then later been given to him. D.B.'s allegations that
Gayder had registered in his name guns that had been seized by the police
had already been a matter of record since early in the hearings. The issue
was not whether this had happened, but rather the propriety of Gayder's
accepting guns which he knew had been so obtained. The identity of Mc-
Auliffe's informant was no longer relevant; by agreement between Mc-
Auliffe's counsel and Commission counsel, McAuliffe had returned to the
Inquiry and testified for three days about his knowledge of Gayder and his
collection of guns, and swore that he had revealed all the information he
had received from his unidentified sources.

54 Property

Nor was D.B.'s suspicion about alleged preferential treatment for
Lake news to the Inquiry; Constable Onich had already testified about this
in April 1989, and the matter had been fully canvassed.

D.B. agreed that he was not aware at the time he gave his will-say,
nor had he been told, that Ciszek had testified that there had been absol-
utely no attempt to influence his investigation of Lake; that the matter had
been discussed with the senior Crown Attorney, who advised that there
were no grounds for a criminal charge, and suggested Police Act charges
instead; that Police Act charges were then laid, and were prosecuted by a
part-time Crown Attorney who was later appointed a judge (rather than by
a senior police officer as is more usual), that Lake's own counsel was a
highly respected lawyer who was later appointed a judge, and that the case
was tried and sentence imposed by a judge (rather than by a senior police
officer as is normally the case). Had senior officers wished to ensure that
Lake was given special consideration, they could have assigned the duties
of prosecuting and presiding over the trial to sympathetic members of the
Force itself.

Apart from many contradictions in his testimony that could have
been due to faulty memory of events occurring some 14 years previously,
there were other very serious problems in respect to D.B.'s reliability.
Referring to VanderMeer, he insisted under stringent cross-examination by
Ryan's counsel in November, 1990, that he had had "many conversations
with him over the past summer."^ VanderMeer swore that he spoke to D.B.
only twice, once in August and once in September. On it being suggested
to D.B. by Board counsel that a Sanyo radio and cassette player contained
on a list of items seized from the Lake residence had been found in Lake's
bedroom and might have given him concern because Lake was using it per-
sonally, he agreed and added that he had a recollection of that. On
cross-examination, it was pointed out to him that the evidence was that the
Sanyo radio-cassette was not in Lake's bedroom, but had been found in
Lake's basement with other exhibits, and that it bore a police tag and was
badly damaged. When it was put to him that his previous evidence had been
"a total fabrication," he agreed. Similarly, he testified that a television set
found in the basement was plugged in and appeared to be in use. On
cross-examination, he was confronted with Ciszek's notes and testimony
that the television set was new, had a plastic bag around it, and the cord
was wrapped in such a way that Ciszek concluded that it had never been
used, and he admitted that his previous sworn evidence had been "mis-

inquiry transcript, vol. 222 (Nov. 6, 1990): 23.

Property 55

taken." He testified that he believed Ryan had no paid sub-informer, and
instead kept for himself the informant funds he received from the RCMP.
Subsequently, he changed his evidence several times on that subject. Fi-
nally, on cross-examination, he was shown his application to the RCMP to
have Ryan appointed as an informant. The application was signed by him,
and certified that Ryan had a subsource and that "This office is satisfied
that any awards would be paid to the informant's subsource." It was put to
him that "you knew that you were probably lying in an official RCMP ap-
plication that you put forward to your superiors, is that correct?," and he
answered: "That's correct."^

In his will-say prepared by Sergeant VanderMeer, D.B. stated that
since his original April, 1989, interview by Commission investigators:
"no-one has come to see me for information. Nor was I ever pushed for the
reports ... No-one from the Colter Inquiry has questioned me since that
time."'° On cross-examination, he admitted that he had been contacted re-
peatedly by the Commission investigators during the eight months following
his first interview, including several phone calls, eight separate requests for
the GORs in question, and four meetings involving three recorded inter-
views the last of which was on December 6, 1989, more than seven months
after the first interview.

In his will-say he stated that Lake had liquor bottles in a cabinet
with markings indicating that they had been seized by the police, and that
the liquor level was below a mark drawn on them to indicate the level of
liquor in them at the time of seizure. In evidence he estimated the number
of such bottles at seven to 10. The intimation was that Lake consumed
some of the seized liquor.

D.B.'s own RCMP list made at the time of the seizure was filed as
an exhibit, and showed 29 smuggled bottles of liquor seized from the cab-
inet, none of which had police markings. Only one bottle had police mark-
ings, and this was found on the basement fioor. It had a police tag, and had
finger print powder on it, consistent with it being an exhibit. D.B had given
a statement to Ciszek for use in the Police Act prosecution that this bottle
was not a smuggled item, and no mention was made of any level markings
on the bottle or suspicion that any of the contents had been consumed,^
fact that would have been very relevant in a Police Act prosecution.

Inquiry transcript, vol. 221 (Nov. 5, 1990): 100.
^Will-say Statement (90-09-03): 15.

56 Property

D.B. was questioned about his resignation from the RCMP. At first
he stated that he left for personal reasons; he later indicated he left under
something of a cloud. Many of his statements involving others were denied
by them under oath. In his will-say he stated that "Sergeant Ryan received
substantial amounts of money ..."" as an RCMP informant, and in evi-
dence placed the amount at at least $2,000 to $3,000. Under RCMP proce-
dures, requisitions must be filed for such payments, receipts signed, and
payments recorded in the informant's file. RCMP personnel responsible for
such payments were interviewed and were emphatic that this procedure was
rigidly followed. Ryan strongly denied that he had kept informer money for
himself, and his RCMP file showed that he had received a total of $185.

D.B.'s evidence about Ryan having credited Lai^e's allegedly light
sentence to his influence over Gayder was positively denied by Ryan, who
stated he had never said any such thing to him, had no such information
and had never heard the allegation until he heard D.B's evidence. D.B.
testified that when Ryan and Davidson gave him Gayder' s gun registrations,
they had concluded that Gayder was a thief. Both Ryan and Davidson vehe-
mently denied that any such conversation ever took place. D.B. testified that
Ryan in Davidson's presence gave him the gun documents in a brown enve-
lope. Both Ryan and Davidson swore that it was the reverse, that D.B. gave
the gun registrations to Ryan to check them out against NRPF GORs, and
Ryan testified that he found no matches between GORs and Gayder' s regis-
trations. As already noted, D.B. stated he had found 17 matches. There were
a number of other similar inconsistencies and contradictions in D.B.'s evi-
dence. His detachment commander stated, after contradicting a statement
made by D.B.: "The only difficulty I had with him was when he lied, and
I had a lot of that."'"

D.B. referred to Alan Berry as a source of his information about
Lake. Berry was called as a witness and stated he had worked with Lake in
the early 1970s and left the Force in 1977. He had heard rumours of Lake's
smuggling activities, as well as other "scuttlebutt" about property and guns
going astray. I am satisfied that he had no personal knowledge about these
rumours. Mr. Berry's evidence did nothing to factually support D.B.'s al-
legations.

" Ibid.:2.

'' Inquiry transcript, vol. 225 (Nov. 13, 1990): 222.

Property 57

I have gone into mind-numbing detail about the D.B episode be-
cause of the manner in which it was introduced, the accompanying accu-
sations aimed at Commission counsel, and the extremely serious allegations
of corruption on the part of members of the NRPF. I shall be referring to
the motivation behind it all in other parts of my report.'-' So far as the
evidence of D.B. is concerned, I find it to be completely unreliable. I have
no faith in his credibility, and consider that the several weeks devoted to
investigating and assessing his allegations was a complete waste of the
Commission's time and the public's money. Nothing was learned about
Gayder's guns that we did not know before. Lake's smuggling operations
were probably outside the Commission's terms of reference, and Lake is
long since retired from the Force. As I pointed out at the time, if the Lake
smuggling matters were introduced simply in order to obtain my comments
on the propriety of a police officer smuggling goods into Canada, much
time could have been saved by a simple submission to that effect. I am
aware that civilian smuggling for one's own use may be viewed less seri-
ously by the public in a border area than elsewhere, but that does not apply
to those who are sworn to uphold the law. Lake broke the law, and as a
police officer he dishonoured his profession, and contributed to a loss of
public confidence in the Force. He deserved to be charged under the Police
Act, and I find that his offence was properly prosecuted and no improper
influence was exerted at any stage of the proceedings. However, there is no
evidence that he stole Force property.

'^ See p. 346.

58 Property

(1) Firearm storage facilities in the 1960s and 1970s and
closet 374

In St. Catharines in the 1960s, before regionahzation, Force firearms, seized
and found firearms, and firearms privately owned by the members of the
Force's revolver club were stored in a closet, designated as the Force ar-
senal located on the first floor of Force Headquarters at 68 Church Street.
The desk sergeant had the key to the closet, and in the casual atmosphere
of the time, almost anyone could get the key by asking for it. Firearms
being held as court exhibits and weapons used for training and display pur-
poses were stored in another room nearby.

In April 1971, following regionahzation, a Force firearms officer
was appointed, and he visited all the divisions and detachments to collect
spare Force guns and seized and found firearms. He collected about 10
spare Force handguns and 10 to 15 seized or found firearms and put them
in the arsenal closet, along with three or four training guns and about seven
revolver club guns.

In 1971 or early 1972 the spare Force guns were moved from the
arsenal to closet F-13 across the hall from the office of Inspector Bevan, the
officer in charge of Quartermasters Stores. New Force weapons were stored
in a closet in Bevan's office. Seized and found handguns remained in the
arsenal closet pending trades.

In 1973, Deputy Chief Gayder obtained permission to store books
and records from his office in the arsenal closet, along with the seized and
found handguns, training guns and museum weapons. In 1975 a fire in the
cell block necessitated the temporary removal of the items stored in the
arsenal while renovations were completed.

In 1978 an amnesty was declared, allowing citizens possessing un-
registered guns to turn them in for registration or disposal without penalty.
Many handguns were turned in and Sergeant James Johnson, the officer re-
sponsible for their safekeeping, obtained from Deputy Chief Gayder per-
mission to store them in the arsenal closet. Johnson testified that the closet
contained documents, books, and three or four boxes of guns that Gayder
said were being held for a future museum. There might have been knives
mixed in with the guns, and he believes there was a morningstar (a martial

Property 59

arts weapon). The boxes were open and the contents could be seen by any-
one looking into the closet.

Clayton Marriott, then the training sergeant, testified that around
1978, at Gayder's request, he moved one or two boxes of handguns from
Gayder's office to the arsenal closet. In 1980 or 1981, Gayder brought some
26 to 30 of his own handguns and a flare pistol from his home in a brown
satchel and stored them in the arsenal closet. (What is believed to be the
same bag was later found amongst the other items in closet 374).

Thus, from 1980 to 1984 the arsenal closet contained training guns,
museum guns and other items, 26 to 30 of Gayder's personal guns, some
books and records, possibly some revolver club guns, and other miscel-
laneous items. Guns were added from time to time, and guns were removed
for trade purposes. Throughout this period, handguns required as court ex-
hibits were kept separate from the other guns until they were no longer
needed, and then were sent to the arsenal closet for future disposal.

In 1984, in anticipation of renovations to the whole main area, in-
cluding the arsenal, 30 to 40 boxes containing weapons and many other
items were moved temporarily into a vault on the top floor of the building.
When the renovations were completed, these items were moved to various
locations, including the Force library. As a result of the alterations, the
office of Chief Gayder's secretary contained a large inner "closet" with
metal shelving and a kitchenette counter with appliances. Due to lack of
other storage space, some 10 or 15 boxes of files, binders, and items such
as handguns, knives, brass knuckles etc., said to be set aside for a future
museum, were moved from the vault into this closet.

In the spring of 1986, everything was moved out to allow the in-
stallation of new lockable cupboards. The "museum" items, chronological
and criminal intelligence files and other items were moved into a nearby
empty closet, known as closet 374, and a lock was installed. What wouldn't
fit into the closet was put in the Chiefs and secretary's offices or the
boardroom. A civilian employee, John Rhodes, testified that he moved into
the closet four or five open boxes of handguns and knives, including items
such as a ball and chain, spiked wristbands etc., a canvas bag of handguns
and approximately five rifles. As he was picking up the rifles, Gayder said,
"I keep them here because my wife doesn't like them around the house.''
Rhodes thought he was referring to the rifles because he knew Gayder was
a hunter and assumed that the rifles belonged to him. Several other civilian

60 Property

employees, including Ms Billie Hockey (later a member of the IIT), ob-
served the move, which was done openly.

The presence of weapons in the closet was common knowledge. Un-
doubtedly, much of the trouble that resulted from the suspicions and pub-
licity following the opening of closet 374 would have been avoided had
there been in place proper controls and records of all weapons coming into
the police premises. However, the question is whether the circumstances
warranted the IIT's conclusion that they amounted to cogent evidence of
theft by Gayder, rather than simply being evidence of poor management
practices, and of a lack of appreciation of the fact that in recent years the
old casual attitude toward the disposal of weapons had dramatically
changed.

William Wolski, a member of the Attorney General's Ministry, pre-
pared a memorandum replying to the questions raised in the six-volume
brief the IIT had delivered to the Ministry in June. On October 15, 1987,
Douglas Hunt, Assistant Deputy Attorney General, after consultation with
other senior members of the Ministry, delivered the memorandum to Chief
Shoveller and members of the IIT. In relation to the weapons found in
closet 374 and "all related circumstances," the IIT brief had asked, "Did
James Arthur Gayder violate provisions of the Criminal Code relating to
weapons, theft and breach of trust offenses?" After reviewing the facts as
set out in the IIT briefs, Wolski concluded that no honest belief could exist,
based on reasonable and probable grounds, that an offence of theft or an
offence under sections 88 or 89 of the Criminal Code relating to the pos-
session of weapons had been committed. In its report to the Board, the IIT
suggested that Wolski misapprehended the evidence as to departmental reg-
ulations governing the handling of seized and found weapons and the rele-
vant sections of the Criminal Code, and applied a higher burden of proof
than was necessary for the laying of a charge, and instead was requiring
proof beyond a reasonable doubt.

It is not within my mandate to comment on the opposing opinions
of Mr. Wolski and the IIT as to Criminal Code offences in relation to the
contents of closet 374, but I have elsewhere set out the circumstances and
my conclusions regarding the various individual weapons found in the
closet.

The evidence is (1) that Gayder made no attempt to hide the fact
that there were guns stored in closet 374; (2) that there was a real intention
to set up a museum for which the closet contents, properly sorted and clas-

Property 6 1

sified, could have been used; (3) that, since 1974, Gayder had made no
attempt to register any handgun in his own name; and (4) that a large pro-
portion of the weapons in the closet were virtually valueless and of no in-
terest to a knowledgeable collector such as Gayder, and would have been
sorted long ago if Gayder intended to keep the best items for himself. The
state of the unsorted conglomeration of articles present was more consistent
with Gayder's and Pay's evidence that they had simply not got around to
sorting and classifying it for museum purposes.

I conclude that the evidence does not support the allegations that
Gayder had appropriated for his own use the contents of the closet.

There is, however, the question of judgement that should be ex-
pected of a Chief of Police. While there were apparendy no regulations on
the matter, it should have been obvious that it was improper to store per-
sonal firearms in police headquarters, at least other than in the Force arsenal
and with proper documentation. Gayder, as the head of the Force, showed
very poor judgement in doing so. As well, by using the same closet as that
in which he had placed Force weapons, he provided a basis for the rumours
that he had converted Force weapons to his own use. He also left himself
open to the suggestion, made during the course of the Inquiry, that he was
breaking the gun registration laws by keeping handguns at an address other
than that of his residence as shown on his registration certificates.

Further, having been questioned by the OPC about his gun col-
lection, and presumably being aware of the rumours and McAuliffe's broad-
casts of impropriety in that regard, common sense should have dictated to
Gayder the necessity of creating secure storage for weapons intended for the
museum, in an area accessible to Sergeant Pay, the curator, and well re-
moved from the Chiefs office area.

The evidence also points up a problem about the keeping of civ-
ilians' guns in storage for safekeeping,''* and some policy should be form-
ulated in this regard.

See TTie Chiavarini guns, p. 62.

62 Property

(2) The Caine gun

In June, 1970, one Caine, a citizen of the USA, was charged and con-
victed of impaired driving. A handgun, registered to him in the USA, was
found in his possession and was seized. A charge of unlawful possession
of the gun was withdrawn. The gun, together with its holster and police
property tag, was found in a locked cupboard in Gayder's outer office at the
same time that the IIT carried out the search of closet 374 nearby. It was
from this cupboard that John Rhodes had moved weapons and other items
in boxes to closet 374. Gayder does not recall ever seeing this gun, and
suggests that it was in the police arsenal prior to regionalization, and may
have been put in the boxes of materials intended to be used for display.
Neither the St. Catharines Police Department nor the NRPF ever got around
to returning the gun to Caine, perhaps because of the difficulty of doing so
legally since, at the time, Caine presumably had no carrying or other permit
valid in Canada.

The IIT posed the question, "Did Gayder's possession of the Caine
weapon constitute Theft and Possession of an unregistered, restricted
weapon as defined in the Criminal Code of CanadaT Wolski reported in
the negative on the ground that Gayder could not reasonably be held to be
in possession of all the weapons in both of the closets in question. The IIT
reported to the Board that Wolski had missed the "seminal issue" of
whether the gun should have been returned to Caine, and had again applied
too high a standard of proof for laying a criminal charge, as opposed to
proof at trial.

There is no doubt that all of the officers involved (probably in-
cluding Gayder as the officer ultimately responsible) must be faulted for
failing to follow up on the matter of what should be done with the gun. At
the very least, this illustrates the need, as already noted, for drastic im-
provement in the Force property record system. As to the question of pos-
session, I agree with Wolski.

(3) The Chiavarini guns

Ralph Chiavarini, the registered owner of two handguns, died in March
1979. In January or February, 1980, his widow decided to take a vacation
in Florida, and fearing the guns might be stolen in her absence, she tele-
phoned then-Deputy Chief Gayder, whom she knew as a customer of her
restaurant, asking whether they could be kept at the Police Station. Gayder

Property 63

sent Sergeant Allan Marvin and Constable Kenneth Mitchell to pick them
up, and they were turned over to Gayder and stored in the Force arsenal.
No documentation was prepared. Gayder told the Inquiry that he did not
cause an occurrence report to be filed because he considered he was simply
doing a favour for a friend. The guns were found by the IIT during their
search of closet 374. A more detailed account of the circumstances sur-
rounding the IIT report on these guns will be found at page 229.

As has already been illustrated, the property system, particularly in
relation to non-Force guns, was administered in a most casual manner dur-
ing the 1970s. Gayder, as Deputy Chief (Administration), was responsible
for the enforcement of the regulations about recording the receipt of fire-
arms, and although the regulations referred to "found and seized property"
and not property held for safekeeping (as Gayder states was his under-
standing of the status of the Chiavarini guns), proper administration would
require that a record should be prepared for any guns coming into the cus-
tody of the Force. Had this been done, the Chiavarini guns would not have
been lost track of, and the allegations of misconduct in relation to them
would never have been made.

I shall be recommending that, if private property is to be accepted
for safekeeping under special circumstances, a proper policy be developed
and appropriate regulations be passed requiring proper controls and records.

(4) Untraceable guns

The history of a large number of the guns in closet 374 remains unknown.
Between 70 and 75 handguns fall into this category. Gayder testified that
he was "very much surprised" at the number of guns found in the closet.
The guns he brought from home had been stored in the arsenal closet, along
with training guns, museum guns and probably amnesty guns and others,
such as three boltless rifles used for loans to theatre groups and the
Chiavarini guns held in safekeeping. He surmised that, in the various moves
of weapons from the arsenal closet to other locations, someone, for ease of
carriage, may have added guns to the boxes Rhodes handled, or to the
brown satchel of guns he had brought from home. Extensive research of
Force and RCMP records by the Commission investigators failed to reveal
the source of many of these guns, and their route to the closet 374 will
presumably remain a mystery. With new storage practices that have been
introduced, the problem should never be allowed to arise again.

64 Property

(5) The museum

Prior to regionalization, some handguns, sawed-off shotguns and rifles,
knives, bayonets, martial arts weapons etc. were kept for training or display
purposes. At least as early as 1942 the Niagara Falls Police Department dis-
played on a wall near the public entrance to its headquarters seized and
found prohibited weapons. Around 1973 or 1974, when a new headquarters
was being considered, Chief Shennan and Deputy Chief Gayder discussed
the inclusion of a museum and library. On a visit by Gayder to the Metro-
politan Toronto Police Museum, the curator donated some articles to him
for museum purposes, and thereafter Gayder states he set aside special items
for a future museum, storing them with arsenal articles.

When plans for a new extension to headquarters were discussed with
the Board in 1979-80, space was allocated to a museum, and Sergeant
Douglas Pay was designated as curator. In 1985, Gayder, as Deputy Chief,
wrote to the Solicitor General requesting permission for a museum, and
visited other forces' museums for ideas. Also in 1985 a bulletin was posted
advising that a museum was being set up and soliciting memorabilia as
exhibits.

There can be no doubt that it was common knowledge that a mu-
seum was being planned, space had been allocated, and Sergeant Pay had
set up display cases and was assembling display items with the approval of
the Board. Gayder's claim that he was collecting items, including handguns,
for this project was the foundation of what was later characterized by Board
counsel as his "museum defence."

On February 24, 1987, Acting Deputy Chief Moody had Sergeant
Pay catalogue the contents of closet 374, and Moody testified that Pay told
him that he was aware of the closet's contents and that the guns were for
the museum, that Gayder had been too busy to put them with the museum
items in Pay's custody downstairs, and that Pay had taken him (Moody)
downstairs to view the museum collection there, including two handguns
and some airguns. The IIT was thus aware that some or all of the weapons
in closet 374 may have been set aside to be sorted for museum purposes.

In their confidential report to the Board, the IIT rejected any sug-
gestion that the weapons in closet 374 were being held for museum pur-
poses, relying on the fact that Sergeant Pay "... said that the weapons, for
the most part, could not have been used for a police museum, as many were
duplicates and had no significant historical value." In his testimony. Pay

Property 65

could not recall saying this, and stated, "I would have taken all the guns for
the museum .... And then pick and choose what I could for different dis-
plays."''' From his evidence I conclude that he probably did, when asked
by the IIT whether he could use all the guns, say he could not use them all,
but apparently he was given no opportunity to explain, as he did in his In-
quiry evidence, that they would first be sorted, and that while he could only
display a few at one time, he would want to have a large number in reserve
so that he could change the displays frequently.

The other reason given by the IIT for giving short shrift to the mu-
seum explanation was that, although Gayder had written the Solicitor Gen-
eral on June 26, 1985, requesting that "our museum be designated as an
Approved Museum for the purposes of Part 11.1 of the Criminal Code,"
nevertheless, since only "memorabilia" were mentioned as its proposed con-
tents, and the letter did not mention weapons, and was addressed to the
"wrong ministry," therefore "... Gayder had never applied for permission to
exhibit restricted weapons in a museum." This was a complete miscon-
ception of the applicable law.

In 1985, sections 88 and 89 (now 90 and 91) of the Criminal Code
made it an offence for anyone to be in possession of a prohibited weapon,
or of a restricted weapon without a permit. Section 90(1 )(b) (now section
92) exempted police officers from those sections for such possession in the
course of their duties. In 1985, section 90(2) of Part 11.1 [(now section
92(2) of Part 1 1 1 )] of the Code provided that "no operator of or person em-
ployed in a museum approved for the purposes of this Part by the Commis-
sioner or the Attorney General of the province in which it is situated is
guilty of an offence under this Act by reason only that he has in his pos-
session a restricted or prohibited weapon for the purpose of exhibiting the
weapon or storing, repairing, restoring, maintaining or transporting that
weapon for the purpose of exhibiting it." Section 2 of the Code defines
Attorney General as meaning "the Attorney General or Solicitor General"
of a province, and in Ontario applications for museum permits are made to
the Solicitor General.

Gayder's intention to establish a museum containing weapons was
one of the reasons the Attorney General's Ministry gave for rejecting wea-
pons charges against Gayder involving the weapons stored in closet 374.
There was ample evidence available to the IIT that plans had been made for
such a museum and that Gayder had expressed his intention of providing

" Inquiry transcript, vol. 25 (Jan. 18, 1989): 142.

66 Property

weapon exhibits from the weapons stored in closet 374. Very little research
would have revealed that Gayder's application had been made to the proper
authority, and that approval for a museum under Part 11.1 of the Code
would carry with it the right to display prohibited and restricted weapons.
In any event Earl Soley, the Firearms Examination Officer of the Chief Pro-
vincial Firearms Office, to which office the issuing of museum approvals
is delegated, was of the opinion that no approval for a weapons exhibit was
necessary since the relevant sections of the Criminal Code exempt police
officers in the execution of their duties. I accept Soley's opinion that no
approval was required, but even if he is not correct, Gayder did indicate his
intention by applying.

No approval for a museum had actually been granted, since the ap-
plication had somehow gone astray before reaching the Chief Provincial
Firearms Office. A copy of the letter, taken from NRPF files, is an ex-
hibit.'^ Pay swears he prepared it and had it signed by Chief Gayder, and
the intention expressed by it is one of the factors upon which the Attorney
General's staff relied in concluding that, "... in these circumstances no
honest belief could exist based on reasonable and probable grounds that an
offence has been committed under either Sections 88 or 89 of the Criminal
Coder''

It accordingly is clear that soon after regionalization the concept of
a museum was included in plans for a new headquarters, and that space was
allotted and approved by the Board and a curator appointed in 1979-80. It
is only when it is intended to exhibit restricted or prohibited weapons that
governmental approval is required, and that intention was presumably the
reason for Gayder's application. In Ontario the application is to the Solicitor
General, and the IIT's conclusions to the contrary and their doubts about
Gayder's intention to exhibit restricted weapons were apparently wrong.

" Exhibit #45.

" Woiski Report (Oct. 17, 1987); 4.

Property 67

(D) OTHER GUN ALLEGATIONS

(1) The Remington Woodmaster rifle

This .308 calibre rifle was on the 1977 list of "Firearms for Disposal."
Former Deputy Chief Martin Walsh testified that in November of 1977 he
went to the sub-basement room in police headquarters, used at that time as
an armoury, where a number of handguns and "long guns" were being pre-
pared for a trade. He commented to Gayder that he liked a 30-30 Win-
chester rifle amongst the long guns and Gayder told him to sign it out.

Gayder testified that he had a conversation with Walsh at that time
about "shoot-outs" with criminals and the fact that there were no weapons
in their vehicles to protect against such violence, and that, as a result, he
gave the Winchester to Walsh to carry in his police vehicle, and put a .308
Remington rifle from Supply in the trunk of his own police car. In
February, 1987, after being suspended, he telephoned Deputy Chief
Parkhouse, told him that he had signed out a rifle to carry in his car, and
asked Parkhouse to return it to the arsenal, which Parkhouse did. The IIT
learned of this, and in its brief asked the Attorney General whether a charge
of theft should be laid against Gayder. Wolski reported that there were no
reasonable grounds, and the IIT concurred. I also agree.

(2) Guns with obliterated serial numbers

Edward Lake joined the St. Catharines Police Force on May 11, 1949.
Shortly after the 1971 regionalization of the Niagara area forces, he was
appointed Identification Officer for the NRPF. The main duty of the identi-
fication officer is to gather evidence of a physical nature in connection with
a suspected illegal act, test the item if necessary, and hold it for use as a
court exhibit. When it has served its purpose, it is to be turned over to the
property department for appropriate disposal, that is, to be returned to the
owner, destroyed, sold at auction or traded.

At the time Lake took over, property coming into the Identification
Office was stored in the firing range in the sub-basement of the old police
building, some in lockers, but large amounts were in piles on either side of
a pathway cleared for passage of officers using the range. One witness de-
scribed it as "a junkyard." Many items were taken by Lake to the basement
of his home to be tested on his own time.

68 Property

On January 1, 1983, Lake suffered a heart attack; was hospitalized
for a time; and was off duty on sick leave until his retirement on June 1,
1984. Around the end of January, 1984, he received word that the Fire De-
partment had ordered the removal of certain of his storage lockers in a
passageway in the sub-basement. In the late evening of March 1, 1984, he
went to the police station to complete the removal of the contents of those
lockers to other lockers under his control in another area. As he was carry-
ing a box of guns to a secure locker, locker N°. 9, he realized that the keys
to that locker were in a locked desk drawer, and that he had left the key to
the drawer at his home.

Lake testified that at 1 :30 on the morning of March 2, he asked
Constable Gerald Melinko, one of the identification office staff, to allow
him to place the box in Melinko' s locker until he could return the next
evening and remove it to locker N°. 9. This was agreed to, and Lake test-
ified that he did return on the evening of March 2, and removed the box to
locker N°. 9 Lake stated that the box contained guns given to him by In-
spector Gittings in September 1982, for disposal and that before he could
turn them over to property for disposal, it was his duty to "check them out."
He had "not gotten around to this" before his heart attack.

Melinko testified that he believed that Lake had brought the box
into the station from his home, and being aware of Lake's previous dif-
ficulties about articles kept in his home,'^ he opened the box in the
presence of Constable George Onich, another member of the identification
squad, and found that it contained a .38 Colt, a .44 Ruger, a .41 Smith &
Wesson and a .32 Iver Johnson. Melinko and Onich wrote the number
"1 1906" (a combination of their badge numbers) under the grips of each
gun, in invisible ink so that it could not be easily seen, for identification
purposes. They were "concerned about what was going to happen to them,"
since the Iver Johnson was a gun Melinko had seized in 1981 and had
turned over to Lake for identification and disposal.

Melinko states that he told Staff Sergeant (now Deputy Chief) Kelly
about the incident on March 5. Kelly testified that he told Melinko to put
the guns in Property. Prior to testifying before the Inquiry, Melinko checked
the Property records, and found the guns had not been entered. Accordingly,
he told the Inquiry that he believed he must have turned the guns over to
Kelly, but in view of Kelly's statement, he is apparently not sure what was
done with them at that time.

See p. 51.

Property 69

In any event, in June 1987, in the course of the IIT investigation,
Melinko found the Colt, the Smith & Wesson and the Ruger in a drawer at
the Property offices at 1 1 Neilson Street. He was concerned that they had
not been destroyed since two of them had had the serial numbers oblit-
erated, and the other had never had a serial number.

Gittings' evidence is that over the years a number of seized and
found weapons had accumulated in detectives' lockers, and that he turned
over a box containing 10 or 12 of them to Lake in September 1982, with
instructions to trace them and then dispose of them through Property. In
April, 1984, he learned that they had been found in locker N°. 9, and re-
ceived instructions from Deputy Chief Walsh to have Sergeant Pidduck dis-
pose of them. Pidduck advised Gittings that the instructions had been car-
ried out, and Gittings so advised Walsh.

The staff sergeant in charge of Quartermasters Stores at the time
stated that when he left Stores in 1985 there remained in the gun storage
cabinet between 18 and 24 large calibre handguns, which had been set aside
by Gayder, who had said that these were valuable guns and he hoped the
legislation would be changed to allow them to be sold. Gayder was at the
time a member of a committee set up by the Solicitor General to recom-
mend amendments to the Police Act. Evidence was given that new serial
numbers could be obtained for handguns which would be re-stamped and
re-registered. The NRPF firearms officer was aware of this procedure.

The IIT posed the following question: "Considering the circum-
stances in this matter, did James Arthur Gayder commit an offence by
possessing restricted firearms whose serial numbers had been altered,
defaced or removed?" Wolski reported that "Section 90 of the Criminal
Code provides a blanket protection for a peace officer who has in his pos-
session a restricted weapon for the purpose of his duties or employment.
There is a total absence of evidence to indicate that these weapons were
ever used or controlled by Gayder during the time that they were stored in
the facility with the Force. In these circumstances an honest belief based on
reasonable and probable grounds does not exist that Gayder had possession
of these weapons outside the scope of his duties or employment."'^ The
IIT disagreed, reporting to the Board that Wolski had placed too much
weight on Section 90, and that the "blanket protection" is subject to "an
accused person first proving on the balance of probabilities that, given his

'" Wolski Report (Oct. 12, 1987): 18.

70 Property

circumscribed duties as a police officer, he was properly discharging those
duties."

Lake's practice of taking exhibits to his home for identification or
testing purposes may be understandable in the face of the lamentable space
limitations with which he was faced at headquarters, but the practice has
been stopped, and must never be allowed to recur. If this Inquiry's recom-
mendations concerning proper Quartermasters Stores facilities are imple-
mented, the space problem should be solved.

It is apparent that Lake paid litde or no attention to administration
or record-keeping, that his method of storing exhibits was chaotic, and that
there was a complete breakdown of the property system in the identification
office area, but I conclude that, apart from his smuggling activities, the
circumstances do not amount to misconduct on his part in the moral sense.
So far as Gayder was concerned, the evidence does not establish possession
of the guns or misconduct on his part in relation to them.

(3) The DeMarco gun

In 1981, Mark DeMarco, the proprietor of a jewellery, coin and second-
hand goods shop in St. Catharines, purchased a .25 calibre handgun from
the grandson of the owner. Sometime thereafter, when Gayder, then Deputy
Chief, was in the store to make a purchase, DeMarco asked him to check
on whether the gun had been stolen, and Gayder took it to Police Head-
quarters to check out its ownership. A Canadian Police Information Centre
(CPIC) search having indicated that there was no record that it had been
stolen, and that it was still registered to the vendor's grandfather, Gayder
returned the gun to DeMarco. From his conversation with DeMarco, Gayder
states he assumed that DeMarco dealt in guns as well as other goods, and
that a document he pointed to on the wall was a licence to that effect. He
states that he assumed, incorrectly, that DeMarco would register the gun
himself Subsequent investigation revealed that the grandson had taken the
gun without the consent of the grandfather. The circumstances led to an
internal investigation of Gayder' s involvement ordered by Chief Harris in
1983, and by the OPC in 1984. No charges were laid, and although the
OPC found that Gayder exhibited questionable behaviour in failing to
inquire properly into the background of the gun, they did not imply any
improper motive or wilful disregard of duty.

Property 71

The IIT posed the following question: "... considering that Gayder
failed to ascertain if DeMarco could legally receive the weapon: did he
violate section 94(1) of the Criminal Code ofCanadaT Section 94(1) made
it an offence to deliver a restricted weapon to a person who is not the
holder of a permit to possess the weapon. Wolski replied that, due to the
death of the grandfather, the non-co-operation of the grandson, and the lack
of charges in the two prior investigations, there was insufficient evidence
to satisfy the burden of proof, and the probability was that, due to the
passage of time, the court would stay the charge and he accordingly would
not recommend instituting proceedings. The IIT reported to the Board that
it agreed.

However, I conclude that Gayder, perhaps because of his casual at-
titude in relation to guns, was extremely careless in failing to check with
the registered owner of the gun whether he had consented to its sale, and
also in failing to assure himself, before returning the gun to DeMarco,' that
he was a qualified gun dealer, and, if he was not, to ensure that the transfer
of the gun was properly registered.

(4) The Onich allegations

Constable George Onich, a member of the IIT, created considerable sen-
sation in the media when he volunteered to the Inquiry, in the course of his
testimony on another matter, that he had knowledge of three incidents in-
volving guns that, in his view, amounted to criminal misconduct on the part
of members of the Force, but had not reported them to a senior officer be-
cause he "did not know who he could trust." The Commission investi-
gators were then dispatched to carry out a lengthy investigation of the
alleged incidents.

(a) The suicide gun

The first incident involved a retired Force member, Norman Fach, former
Chief of the Grantham Township Police Force (which became part of the
NRPF on amalgamation in January, 1971). In February 1978, Constable
Onich was the identification officer in a gunshot suicide investigation. A
Marlin .22 rifle, a Stevens shotgun and a .38 Smith & Wesson (the gun
used in the suicide) were turned over to him. Onich found that the handgun
was not registered, and he testified that M., the husband of the deceased,
told him that he had obtained the handgun from Fach in the mid-sixties and

72 Property

that Fach told him "that the registration would be handled by the Police De-
partment." Onich considered that Fach was at fault for giving an
unregistered gun to M. He did not report the matter to his superiors.
Sergeant Lake or Inspector Murdoch, not being sure he could trust them,
nor did he make any notes.

M. testified that he purchased the gun from an acquaintance in 1954
and that he and the vendor attended on Chief Fach to have him "check" the
gun. A few days later he picked up the gun from Fach and received a paper
that he assumed consisted of a gun permit. He stated that following the con-
clusion of the suicide investigation, he retrieved the shotgun and some other
seized items but sold the rifle to a police officer for $35-40. M. identified,
as his, a signature on the police supplementary report form covering this in-
cident acknowledging receipt of all three weapons. The date beside his sig-
nature is June 13, 1978. However, he states that he believes he left the
handgun at the police station for destruction and that it was not sold with
the rifle.

Application to register the gun in the name of Constable Kenneth
Mitchell was made during the week of August 30, 1978. Constable Mitchell
testified that he purchased the handgun and the rifle from M. in August
1978 for $200. Constable Mitchell's evidence was completely credible, and
I conclude that M.'s recollection of the events that occurred at a very stress-
ful time 12 years earlier was faulty in this respect. Although the practice of
police officers purchasing seized firearms from even the owner should be
severely discouraged in the present climate of concern about firearms, there
was nothing illegal about the transaction; there was no published Force
policy prohibiting such purchases, and it was not an uncommon practice at
that time. I find no misconduct on the part of Constable Mitchell in this re-
gard, and there is insufficient evidence at this late date, 35 years after M.'s
acquisition of the gun, to conclude that there was any misconduct on the
part of Fach.

(b) The smuggled gun

Constable Onich testified that in January, 1983 he had a conversation with
Constable Al Feor, who was unhappy with Sergeant Edward Lake because
a promotion Feor had expected had gone to another officer. Sergeant Lake
was Feor's superior officer, and Feor assumed that Lake had not supported
him for the promotion. Onich stated that Feor told him that when Lake was
in trouble in 1976 about smuggling goods from the USA, Feor had "smug-

Property 73

gled a gun back into the station for him." Onich felt this could involve the
offences of theft, possession, conspiracy or obstruction of justice. He did
not report the incident, because, since he did not trust his superiors, "there
was no one to go to" who could do anything about it.

Lake swears he at no time asked Feor to take a firearm into the
station for him, and Feor denied that Lake ever asked him to do so. Feor
does recall Lake coming to the station when he was under suspension and
asking Feor to move a gun from a cabinet in the laboratory to Lake's secure
locker in the sub-basement. He does not recall telling Onich about this, and
Lake cannot recall the incident, but says it is possible.

There is simply no evidence to support Onich's suspicions. I can
only conclude that Onich misinterpreted his conversation with Feor.

On September 27, 1984, a citizen brought into the station a handgun he had
made 30 years previously and offered to donate it to the proposed Force
museum. A note to this effect was entered in the Property Report for that
day by Constable Feor, of the Identification Branch. Feor showed the gun
to Deputy Chief Gayder, who he believes told him to "put it into Property."
It was not entered into Property records until October 9, 1984, perhaps be-
cause Feor was off duty between September 28 and October 10, and the en-
try system got behind. In a casual conversation in November 1984, Feor
mentioned the incident to Onich. Onich states that Feor told him that he left
the gun either with Gayder or with Gayder's secretary. Because of rumours
Onich had heard about seized guns going to Gayder, Onich made notes of
this conversation, although he did not report it to anyone. He then searched
the Property records to see whether the gun had been entered, and found no
record anytime in the previous year. He insists his search was thorough, and
his only explanation is that somehow he missed the October 9 entry, or
someone added it afterward.

The record of the entry shows no sign of it having been entered
later in time (entries are all chronological), and I conclude that there is no
evidence of any impropriety in relation to this weapon.

74 Prcperty

(5) The Lorenzen allegations

Dr. David Lorenzen of St. Catharines, while serving as a senior coroner,
became concerned about rumours of NRPF officers approaching the families
of gunshot suicide victims regarding purchase of the suicide gun. Accord-
ingly, he adopted the practice of making an order, under the Coroner's Act,
requiring the suicide weapon to be held for one year. In June, 1986, during
a public inquiry under the Coroner's Act, he mentioned this practice and the
rumours that prompted it.

Perhaps because of the earlier CBC broadcasts and other publicity
about rumours of impropriety in the NRPF, Dr. Lorenzen's remarks resulted
in sensational news quotes to the effect that he had accused the Force of
"routinely selling prohibited weapons" and there was reference to "a black
market" in weapons. In his evidence at the present Inquiry, Dr. Lorenzen
denied making any such statements, and testified that he was "absolutely
not" making any allegations that the Force was "engaged in a black market
and sale of guns.""° The only person he mentioned as having bought a gun
from relatives of a suicide victim was Kenneth Mitchell (whose purchase
has been examined above), although he had been told of a similar case in-
volving a sergeant who was now retired.

He testified that on another occasion he was advised that a .357
Magnum, a suicide weapon, was available, that the coroner in charge was
interested in buying it, but that if he (Lorenzen) was interested, he could
probably have it. He stated that, although he was interested because he had
some guns himself and did target shooting, the price was too high. The in-
timation was that, had the price been right, he would have seen nothing
wrong with acquiring the weapon for himself. These were the only three in-
stances of which he had personal knowledge.

I conclude that, while the practice should be discouraged, none of
the circumstances recited by Dr. Lorenzen disclosed any misconduct, and
did not justify the negative publicity the Force suffered.

Inquiry transcript, vol. 13 (Dec. 7, 1988): 113.

Property 75

(6) The Greenfield gun

During lunch hour on September 13, 1984, Mr, W. Greenfield attended at
Police Headquarters in St. Catharines, and turned in to the front desk a
Hopkins and Allen revolver. It was registered in the name of his deceased
father, and the family wanted to get rid of it.

A civilian employee. Donna Mcintosh, was the only person at the
front desk, and this was her first day at the job. She went to the office of
Staff Sergeant Hill for instructions. The Staff Sergeant was on his lunch
hour, and Sergeant Allan Marvin was acting in his place. Marvin told Ms
Mcintosh to fill out a report on the gun. Ms Mcintosh filled out a GOR,
and told Greenfield he would receive a copy of it in a week. After about
half an hour, Ms Mcintosh's partner, Ms Cheryl Granton, returned from
lunch and told her the report should have been a property report, and they
filled out a new report. Ms Mcintosh then took the gun and the property re-
port and left it on the Staff Sergeant's desk. Neither she nor Ms Granton
can recall whether anyone was in the office at the time. Apparently neither
the gun nor the report has been seen since.

After a week, Mr. Greenfield inquired about his copy of the prop-
erty report, and an investigation failed to find any record of the gun or of
the report.

Mr. Shoniker, Board counsel, produced to the Commission a written
summary of the matter, with an allegation that Staff Sergeant McLaren
would testify that "Gayder stepped in and stopped the investigation when
it started to look like Marvin took the weapon" The Commission investi-
gators accordingly did an investigation.

Both Marvin and Hill testified that they had no recollection of ever
seeing the gun. The original investigation was carried out by Staff Sergeant
Newburgh and Sergeant Terry McLaren. They were unable to establish what
happened to the gun, and reported that the easy accessibility to the Staff
Sergeant's office made it possible that any one of a number of people could
have taken the gun, and that there were "no known suspects in this matter."
Deputy Chief Walsh, who had ordered the investigation, reviewed the in-
vestigation with them and signed the report on December 13, 1984. There
is no evidence that Gayder "stepped in and stopped the investigation." Both
Newburgh and McLaren testified that Gayder had not interfered in the in-
vestigation in any way, and that neither had told anyone that he would test-
ify to that effect.

76 Property

It is apparent that someone took the gun, but what happened to it
is not known. The registered ownership has not been changed.

I conclude that the evidence does not support the allegations against
Gayder or Marvin.

(7) Sergeant Z

In February, 1991, while the Commission was awaiting the outcome of pro-
longed procedural and legalistic discussions amongst some of the counsel
regarding the delivery of submissions to the Commission, it came to the
attention of the Commission investigators that Sergeant Z of the NRPF
might have transferred an unregistered restricted handgun to a fellow officer
who was subsequently charged with possession of the gun. Investigation re-
vealed that Z was a gun collector, and it was ascertained that he, over the
years, had 84 firearms registered in his name. An attempt was made to trace
each firearm and ascertain the circumstances of it coming into Z's pos-
session, and a history of each gun and a background history chart was pre-
pared for each identified weapon. Z and five of his fellow officers and su-
periors who had been involved in NRPF firearm registrations were inter-
viewed. No obvious irregularities sufficient to justify further action were
discovered. Copies of all documentation and interviews in relation to the
matter in the form of four lengthy briefs were delivered to all counsel on
April 16, 1992, and no counsel indicated they wished to have evidence cal-
led in that regard.

However, while I was drafting my report, it came to my attention
that on June 30, 1992, Z had been charged under the Police Services Act
with making a false statement on an application to register a restricted
weapon, viz: a .38 calibre handgun. On July 21, 1992, he pleaded guilty,
and was assessed loss of four days leave. The bizarre facts require com-
ment, but because the matter arose too late to be investigated by the
Commission, I do not refer to the individual in question by name. I ob-
tained a copy of the trial proceedings which were held before a superin-
tendent of an outside police force. It appears that a citizen, wishing to get
rid of a handgun, had called the local police station, and the constable in
charge had asked Constable Y to pick up the gun. Constable Y did so, and,
in answer to his question as to what she wanted done with it, was told by
the citizen that she "wanted him to do with it what he was supposed to."
Knowing that Sergeant Z, his superior officer, was a gun collector, Y
telephoned Z, who was on vacation, and was told by Z to keep the gun in

Property 77

his desk until Z returned. On his return, Z applied to register the gun in his
own name, and for a permit to move the gun from the citizen's residence
to the police station, and thence to his own home. His supporting affidavit
stated that the gun was then at the citizen's home. The application went to
the Force's firearms officer, who issues gun registrations. A routine in-
vestigation revealed that the statement of the gun's location was false, and
the charge of making a false statement was laid against Z, as was a charge
against Y of failing to enter the firearm in the Force property system.

The matter has been dealt with by the proper authorities, and is
therefore not one in which this Commission would normally be interested.
I make note of it only because of the alarming implications. Each of these
officers had more than 20 years of service with the Force. During the sen-
tencing process, each was spoken of in the highest terms by the NRPF in-
spector who prosecuted the charges. Both must have been aware of the em-
phasis placed on questionable acquisition of firearms during weeks of evi-
dence at this Inquiry, and of the requirement to properly enter such firearms
into the property system. Z certainly knew that he himself had been recently
investigated in that regard. With that knowledge, it is incredible that a
police officer with over 20 years' service, and presumably the intelligence
and experience to justify promotion to the rank of sergeant, would witlessly
engage in the very conduct that had been the subject of so much adverse
comment and criticism at this Inquiry, and had resulted in an investigation
of his own gun collection. The same applies, to a lesser extent, to Constable
Y.

If this incident were truly indicative (and I am unwilling to believe
it is) of what little has been learned by other members of the Force during
the excruciating examination of questionable conduct throughout the four
years this Inquiry has been in existence, it would be very discouraging to
those who have been attempting to chart a new course in an effort to restore
the public's confidence in the NRPF. I can only hope that the report of this
incident will bring home to members of the Force the harm caused by mo-
mentary thoughtless conduct, and the importance of using good judgement
and common sense in carrying out their duties at all times.

78 Property

(E) OTHER PROPERTY ALLEGATIONS

(1) The Key diamonds

In May 1972, one William Key was charged with auto theft, and some dia-
monds found in his possession were retained by the Force due to suspicion
that they had been stolen in New York. They were processed in accordance
with Force Property policy. On July 12, 1974, they were forwarded from
the Stores to Chief Shennan who directed Superintendent Bevan to place
them in his safe. There they remained until June 1982 when Superintendent
Bevan had them appraised, and their value was placed at $1,500. In ac-
cordance with a memo from then-Deputy Chief of Police James Gayder, the
appraisal was placed with the diamonds in the Force accountant's safe
pending auction arrangements. However, they remained in the safe until
they were removed by the IIT in May 1987 in the course of their investi-
gation.

The IIT posed the following question to the Attorney General:
"Considering all the circumstances by not having the property returned to
Key, who might have a lawful claim. And in the event that he didn't; by
not disposing of the goods as dictated by the Police Act, was Theft as
defined in the Criminal Code committed?" Wolski's reply pointed out that
the allegation of theft was against Gayder, but that he at all times merely
exercised that control required of a police officer, and at no time exercised
any control or right of ownership as a private citizen, and that accordingly
there existed no reasonable and probable cause for the laying of a charge.
He suggests that at most there could be criticism that the diamonds were
not earlier sold at auction. In its critique to the Board of Wolski's report,
the IIT concurred with his fmding. All counsel at the Commission hearings
agreed there was no criminal conduct involved. I conclude that although
there was a laxity or oversight in not disposing of the diamonds in accord-
ance with Force policy, there was no "misconduct" in relation to them.

(2) The silver tea service

On April 4, 1982, two Fort Erie youngsters found three plastic bags hidden
in a field. Amongst articles in the bags was a silver-plated tea service. The
articles, presumably loot from a break-in, were turned in to the Fort Erie
detachment of the Force and an occurrence report was made out. The owner
not having been located after more than 90 days, in accordance with Force

Property 79

policy the articles were sent to Quartermasters Stores at 1 1 Neilson Street,
St. Catharines.

There is no indication in the documentation that the boys made any
request that, if the owner was not found, the articles should be returned to
them as finders, but now, as young adults, they state they would like to
have the tea service.

Force policy at that time was that, if articles coming to stores could
be of use to the Force, (e.g., calculators for the accounting department or
tools for the garage), they would be signed out to that department, rather
than being auctioned. The officer in charge was aware that a new police
headquarters was being built, and called Deputy Chief of Administration
Gayder, to enquire whether the tea service might be suitable for the new
boardroom. Gayder expressed interest, and the tea set was signed out in the
store records to the Deputy Chief's office. Upon being delivered to the Dep-
uty Chief's office, it was left in its box and stored in a cupboard.

In early 1976, when the storage cupboards were being rebuilt. Staff
Sergeant Miljus of Quartermasters Stores was instructed to remove the box
containing the tea service to some other storage area, and he placed it in a
storage area set aside in the basement for the Administration Division. In
February, 1987, it was found there and was turned over to the IIT.

In its report to the Attorney General, the IIT posed the question:
"Considering Section 18 of the Police Act of Ontario, which dictates how
the Board of Commissioners of Police may dispose of property, the owner
of which cannot be found, and all of the circumstances surrounding the tea
set: has James Gayder committed the offence of Theft, as defined in the
Criminal Code of CanadaT Mr. Wolski, in his reply, points out that the tea
set never left the police building, and that the evidence suggested that it was
intended for use by the Chief in his office. He concluded that no reasonable
and probable grounds existed to charge Gayder with theft of the tea set.

The IIT, in its critique to the Board, suggested that Wolski had mis-
stated the evidence regarding the Chief's use of the set for tea, and con-
tended that the tea set was the property of the Board and should have been
auctioned under section 1 8 of the Police Act.

I conclude that there was no misconduct in relation to the tea ser-
vice. While it may not be strictly in accordance with Part IX of the new
Police Services Act, I recommend that the tea set be disposed of in the

80 Property

manner provided by the policy in effect at the time of its coming into the
possession of the Force; that is, that an attempt be made to locate the
owners with a view to returning the tea service to them, failing which it
should be returned to the finders or disposed of as provided in the new Act.
I shall be recommending an amendment to the Act to make it clear that a
Chief has the discretion to return found goods in specie to the finder.

(3) Radios

Between May 26, 1981, and December 31, 1985, Staff Sergeant Michael
Miljus was in charge of Quartermasters Stores. On December 10, 1981, the
Force purchased a marine radio at a cost of $636.65 and installed it in a
Force marine rescue boat. In early 1983 the boat was sold, and the radio
was removed and stored at 11 Neilson Street. On March 29, 1983, Acting
Deputy Chief Ronald Bevan sent a memo to Miljus advising that Acting
Chief Gayder had authorized Bevan to sign out the radio, which was now
surplus, for evaluation and storage in his office pending mounting it in his
personal boat, if he decided to buy it. The radio was signed out to Bevan,
but in August, 1983, it was returned and installed on a new Force rescue
boat, where it has remained. On being questioned, Miljus testified that, as
surplus Force property, it should have gone to auction in the normal way.

On January 1, 1983, a CB radio was seized from a burglary suspect
who was later convicted. The owner could not be located, and the radio was
stored at 11 Neilson Street pending auction. On May 10, 1983, at Bevan's
request, Miljus delivered the radio to Bevan for installation in his personal
boat. On September 30, 1988, the Commission investigators located the CB
radio in the Emergency Services Branch storage area. The officer who took
over the unit in June, 1987, saw it there at that time, but there is no evi-
dence how long it had been there before that.

Being unaware of the fact that the radio had been returned, the IIT
in its briefs sent to the Attorney General, stated that Bevan had converted
the CB radio to his own use, and that Miljus was a party to the conversion.
They posed the question: "Considering all the circumstances with respect
to the two radios, did Staff Sergeant Miljus commit offenses of Theft and
Breach of Trust as defined in the Criminal Code of Canadal Furthermore,
did he violate the Police Act of OntarioT

Superintendent Bevan retired on September 20, 1985 and died on
October 2, 1987, without being interviewed in this regard. All counsel

Property 81

agreed that although the circumstances warranted an investigation by the
IIT, the evidence as developed "indicates that the individuals involved were
guilty of no wrongdoing.""' I agree, subject to my previous observations
about the shortcomings in the administration of the property system at the
time.

(4) The trailer hitch

In April, 1985, a 1985 Pontiac was leased for Chief Gayder, and in May,
1985, Deputy Chief of Administration Parkhouse instructed Quartermasters
Stores to arrange for installation of a trailer hitch at a cost of $328.28. The
account was paid by the region out of the Force budget on the authority of
Deputy Chief Parkhouse, Inspector Stevens of Quartermasters Stores, Force
bookkeeper David Noiles and Mrs. Allen, the authorized member of the
Board. There was no evidence that Gayder used the hitch for hauling police
equipment, and the IIT concluded that Gayder, who was an avid fisherman,
used it for pulling his boat trailer. Mrs. Allen, by then retired from the
Board, was interviewed by Sergeant VanderMeer on April 24, 1987. In the
transcript of her interview, she stated that there were no restrictions placed
on Gayder' s use of the vehicle, and he could use it as he wished. Under
what can only be characterized as rigorous cross-examination by the Ser-
geant, she reluctantly agreed that she would not have approved of the pur-
chase of the trailer-hitch had she been advised that it would not be used for
police work, but she nevertheless reiterated that she felt that what the Chief
asked for on his Force car should be approved. In his report, Wolski states
that a former police commissioner indicated that the Chief previous to Gay-
der had Board authorization for installation in his car of a stereo system
which could not be for police purposes.

The IIT asked whether Gayder had committed a breach of trust in
relation to the trailer-hitch, and Wolski reported that there could be no
reasonable and probable grounds for such a charge. The IIT reported to the
Board that it agreed with Wolski's findings, and I concur.

^' Inquiry transcript, vol. 77 (June 19, 1989): 76.

82 Property

(5) The Reintaler knife

On November 21, 1982, one Reintaler was arrested by an officer of the
Force, and a spring knife was found in his boot. On April 15, 1982, he was
convicted of possession of a prohibited weapon. At the conclusion of the
trial, the knife was returned to Stores, and the records indicate that it was
later released to the Deputy Chief of Administration (who at that time was
Gayder) "for disposal." The suggestion was that it was intended for the
Force museum. The knife was found in closet 374 on February 24, 1987.
The IIT report to the Attorney General stated that the court had ordered that
the knife be confiscated and destroyed. This conclusion presumably resulted
from an interview with the investigating officer, his statement apparently
having been based on assumption only. No attempt was made to confirm
that there ever had been such an order, in spite of the fact that the al-
legation of Gayder's illegal conduct in the IIT's report to the Attorney Gen-
eral relied on the existence of such an order. A transcript of the trial evi-
dence produced for the Inquiry revealed that no such order was made.

In its report the IIT stated that there was no evidence that Gayder
or any other officer had sought approval under the Criminal Code to retain
weapons for the purpose of exhibiting them, or for delivery to a museum.
The IIT posed the following question to the Attorney General: "Considering
all the circumstances: did James Arthur Gayder commit offenses of Posses-
sing a Prohibited Weapon and Theft as defined in the Criminal Code of
CanadaT Although Wolski at the time was not aware that there was no in-
dication of any court order for destruction of the knife, on the facts given
to him he concluded that there were no reasonable and probable grounds for
laying a criminal charge.

In its critique presented to the Board, the IIT submitted that Wolski
had failed to consider whether Gayder had committed offences contrary to
section 116 of the Criminal Code for violating a court order. Since the In-
quiry investigation established that there was, in fact, no such order, and
since the evidence indicates the knife never left the police building, I find
no misconduct in relation to the Reintaler knife.

(6) Lawrence Quattrini

Lawrence Quattrini was Administrator for the Board of Police Commis-
sioners from July 15, 1978, until early in December 1989. In the middle

Property 83

1980s, a series of rumours circulated concerning alleged conflicts of interest
in connection with his duties. One of the CBC morning news broadcasts by
reporter Gerald McAuliffe, delivered on April 10, 1984, reported that the
Thorold Police Detachment was located in a building on the main street of
Thorold under a lease from the owners, the father and brother of Lawrence
Quattrini, who was identified as the executive secretary of the Police Com-
mission. The report stated that Lawrence Quattrini "says that everything is
above board and there's no conflict of interest," but the report went on to
point out that it was a "rush deal," that the lease was originally for one
year, but was extended for another five years to 1986, and that Quattrini
said the renewal was never approved by the Police Commission. Investi-
gation by the Commission investigators disclosed that a formal lease was
executed by the region for one year from January 1, 1982, to December 31,
1982, and continued thereafter without any formal extension, with the full
knowledge of the Board and the region, which paid the monthly rental.

A further rumour arose out of an allegation received by the IIT on
March 19, 1987, that Quattrini was using a Board MasterCard credit card
for his own benefit by purchasing propane on the card and at the same time
claiming mileage expenses from the Board. Investigation of Board records
revealed that Quattrini's Board credit card was not used for propane pur-
chases, but that he used his private car on Board business, and, with Board
approval, charged propane purchases to the Force account at the reduced
rate available to the Force, and these purchases were then charged to him
and paid back to the Force. Following the complaint, the practice ceased.

Further rumours arose out of a McAuliffe CBC broadcast on April
11, 1984, which stated that Quattrini received from the Board a $90 a
month car allowance, and also charged the Board for mileage expenses, part
of his car insurance, and half the annual service charge on his personal
American Express credit card as a Board expense. Investigation revealed
that Quattrini was not issued a Board credit card until 1983. During 1981
and 1982 he used his personal credit card for Board expenses, and charged
half the annual service charge to the Board with Board approval. As part of
his duties as Board Administrator, Quattrini was a member of the Licensing
Committee and was required to maintain liaison with the elected officials
and senior municipal officers on licensing matters, which entailed consid-
erable travel in his private car. He was granted a monthly allowance of $99
for vehicle expenses within the region and, for travel beyond the region, he
was allowed 1 1 cents a kilometre. Because he was using his private vehicle
for Board business, his vehicle insurance premiums were increased, and he
was allowed to charge the difference as an expense. For 1989, his total

84 Property

insurance premium was $1,023 of which he charged $115 to the Board.
These allowances were all sanctioned by the Board of Police Commis-
sioners.

The IIT received an allegation that between June 1982 and De-
cember 1986, Quattrini frequently borrowed money from the Board's petty
cash fund. Investigation revealed that the allegation was true, but that, while
there was apparently no secrecy or intention to deceive, and the money was
always replaced within a short time, the practice did cause inconvenience
to staff members. Obviously, the Board was temporarily deprived of the
funds, and the practice was improper. Upon the matter being brought to her
attention, on April 21, 1987, Mrs Taylor, as Board chairman, directed that
the practice cease immediately.

The last allegation in this series investigated by the Coimnission in-
vestigators was in regard to the purchase by Lawrence Quattrini of a 1981
Ford station wagon, which had been traded in to the dealership by the Force
that same day. It was alleged that following the purchase, new tires were
purchased from Firestone Tire for the vehicle and charged to the Force. By
this time, the repair records for this vehicle had been destroyed in the
ordinary course. However, Mr. Quattrini produced to the investigators a
Firestone Tire invoice, dated August 24, 1982, for two tires at a cost of
$160.16, charged to the NRPF, together with his personal cheque for
$160.16, stamped "Paid," payable to the Niagara Regional Police Depart-
ment, and a receipt for that amount dated October 10, 1982, signed for the
Force by the Force accountant.

In respect of all the above incidents relating to Lawrence Quattrini,
all counsel agreed that the evidence as developed indicated "that the in-
dividuals involved were guilty of no wrongdoing,"'" and I agree.

The existence of such rumours, extremely harmful as they are, not
only to the persons involved, but to the Force itself, graphically points up
the problems created when people in a position of influence in the Force,
even when properly authorized, personally participate in advantages, not
available to everyone, but available to the Force because of its importance
to the community. These practices had apparently grown up over the years,
and the Board properly put an end to them.

" Inquiry transcript, vol. 77 (June 19. 1989); 97.

Property 85

(7) Gayder and two bicycles

On March 29, 1989, Constable George Onich reported to the Inquiry in-
vestigators that he had been told by Constable Harley Turner, Property
Officer at the time, that James Gayder, while Deputy Chief of Police, had
taken two bicycles which had been turned in to the Property Office as
found or stolen, and which should have been sold at the police auction.
Constable Turner, who was in charge of Property in 1976-77, was inter-
viewed and stated that Gayder at no time took any bicycles from his stores,
and the Property records revealed no such information. It is possible that
there was some confusion with an occurrence mentioned in other evidence
in another phase of the Inquiry to the effect that Chief of Police Harris
sometimes gave bicycles to needy families, and on one occasion gave two
bicycles to nurses visiting from another country. In any event, all counsel
agreed that the evidence, as developed, indicates that the individuals in-
volved were guilty of no wrongdoing. I concur.

3 FORCE RESOURCES

(A) QUARTERMASTERS STORES
The background

Following amalgamation on January 1, 1971, Albert Shennan was Chief,
and Donald Harris and James Gayder were Deputy Chiefs. While they built
up the Operations Division, Inspector Ronald Bevan was given the re-
sponsibility of building the Administration Division including Quarter-
masters Stores, usually referred to simply as "Property" or "Stores."
Sergeant (later Inspector) John Stevens was placed in charge of Stores,
reporting to Bevan. The stores unit started at 68 Church Street, St.'
Catharines, then moved to Garden Park, then to 277 Church Street,' and
finally in 1977, to 1 1 Neilson Street, where it is presently located.

The various locations left much to be desired as to space and facil-
ities. Purchase, maintenance and trading of Force vehicles have always been
part of the Quartermaster's duties. Lack of specialty equipment has always
meant that some of the vehicle repair and maintenance work had to be con-
tracted out to local garages. As well, following amalgamation, each division
had a supply officer, whose job was to order supplies and keep track of
what vehicles required oil changes, maintenance and repairs (which services
were supplied by a local garage that had tendered for police vehicle
repairs), and report to the Quartermaster.

Immediately following amalgamation, some divisional commanders
were reluctant to have "their" supply officer reporting to the headquarters
unit, and this caused additional problems. The Quartermaster's unit did not
keep a large inventory, and items were ordered as required. This remained
the case as late as 1981, when Inspector Stevens left the unit.

On September 18, 1978, Reg Ellis was hired as the first Force
mechanic, and because of lack of equipment and the distance of the police
garage from the outlying detachments, many repairs continued to be done
by local garages. On May 26, 1981, Staff Sergeant Miljus replaced Stevens,
and he in turn was replaced on January 2, 1986, by Staff Sergeant (now
Inspector) Michael Locke.

In the late 1970s, the Force had stopped having uniforms
made-to-measure, and started to purchase and keep on hand "stock" sizes
of uniforms, jackets, raincoats etc. During Miljus's tenure, the inventory of
Items such as uniforms, police equipment and office supplies increased

88 Force Resources

considerably, but still without a structured inventory or audit system being
established, due, in a large part, to the fact that staff increases did not keep
up with the growth and needs of the Force. Locke identified numerous
problems respecting the unit, and, in particular, vehicle fleet management,
which he outlined in his 1986 Vehicle Report. He reported that the Force
operated a fleet of nearly 200 vehicles travelling over seven million
kilometres annually. The cost of fleet purchases, maintenance, fuel, licences
and insurance was approximately 1.6 million dollars. He pointed out that
Neilson Street vehicle repair facilities are adequate for only the vehicles of
headquarters and N°. 1 Division based in St. Catharines. In the other divis-
ions. Force vehicles were repaired at private facilities, and labour costs were
high. Supply clerks in the detachments might not have the expertise to ef-
fectively control vehicle repairs and maintenance, leaving them vulnerable
to suppliers and repairers in relation to costs, the necessity and adequacy of
repairs, and priority in obtaining service. As well, much better discounts
could be obtained by the larger purchasing power of one central facility
doing in-house repairs.

Although the problems at Neilson Street were known to the Board,
and preliminary steps were taken to plan new facilities, no commitments
were made, apparently because the capital cost of an extensive and much
needed addition to Force headquarters and the purchase of a computeriz-
ation package took priority over the Quartermasters facility.

After his arrival at Neilson Street, Locke developed a vehicle
inspection program whereby all fleet vehicles were scheduled for regular
maintenance, with a computer program to record and analyze the cost of
operating and maintaining each vehicle. Necessary auto parts are obtained
and kept on hand, and the slock is controlled by a manual inventory system.
Uniforms, equipment and office supplies are invcjitoried and controlled by
a manual system. The efficiency of the unit has been greatly improved, and
Inspector Locke is to be congratulated for his efforts in the face of
inadequate facilities.

Force Resources 89

(B) THE FORCE GARAGE
The background

The issues revolve mainly around the operation of the Force garage located
in an old building at 11 Neilson Street, St. Catharines, some three miles
from Force headquarters, and involve principally the repair of private
vehicles by the then-Force mechanic, Reginald Ellis. The garage was
opened late in 1977, or early in 1978, and Ellis was hired as its civilian
mechanic on September 18, 1978. At that time the Force had very little in
the way of mechanics' tools or equipment, and no budget for more. As a
result, Ellis was hired under an arrangement between himself and then-Chief
Harris whereby Ellis would bring to the garage and use for Force purposes
his own tools and equipment, said to be worth $25,000 to $30,000 and
since this would prevent him from continuing a sideline as a private motor
mechanic at his home, he was permitted to work on private vehicles for
compensation during his lunch hour. Ellis is a Class A mechanic A memo
dated September 23, 1981, from Superintendent Bevan to Acting Inspector
Swanwjck confirms that, by an agreement made "some time ago," Ellis was
permitted to use his own tools to service non-Force vehicles during his
lunch hour. A memo from Chief Harris to Ellis dated February 12, r982,
permitted Ellis to work part-time as a mechanic outside the Force, pre-
sumably in other garages, in order to maintain his mechanic's license.

Ellis, as Force mechanic, had many contacts with the firms that
supplied the Force with both motor vehicles and motor vehicle parts and
materials, and he also contracted out some of the work that could not be
done in the Force garage because of lack of equipment, such as body work
and pamt jobs. Ellis had a good relationship with these suppliers and
garages, but it was well known that he haggled and negotiated with them
to obtain good prices for the work being done for the Force. As a result he
was also in a position to bargain for good prices for parts or equipment he
required for the repairs to the private vehicles he was servicing.

It was generally known throughout the Force that Ellis did repair
work on private vehicles belonging to Force members (mainly senior
otticers) at the Force garage, and until the fall of 1986, it excited no
particular attention.

90 Force Resources

(1) Repairs to privately owned vehicles

For some time, Ellis and his wife had been separated, and their re-
lationship in October, 1986, had become extremely acrimonious. On
October 22, 1986, at a meeting of senior officers of the Force, Mrs.
Elizabeth Parnell, secretary to then-Chief James Gayder, reported a
telephone call she had received from Mrs. Ellis. Mrs. Ellis expressed her
dissatisfaction with the way the Force had failed to handle complaints she
had made against her husband. She slated she had a list of private vehicles
that had been repaired by Ellis at the Force garage and, apparently unaware
of the Harris-Ellis arrangement, threatened that unless her complaints
against her husband were handled to her satisfaction, she would release the
list, with license numbers and owners' names, to the Standard (a local St.
Catharines newspaper that had been critical of the Force).

Chief Gayder turned the complaint over to the Force Complaint
Bureau for action, but Deputy Chief John Shoveller, recently appointed as
Deputy Chief, Administration, felt the matter fell within his area of
responsibility. He was unaware of Ellis's arrangement regarding private
work, and assigned Sergeant Cornelis VanderMeer, head of the St. Cath-
arines Fraud Squad, to make inquiries into the operation of the garage, and
particularly into Mrs. Ellis's allegations. In February, 1987, Shoveller, by
then Acting Chief, became aware of the September 23, 1981, memo from
Inspector Bevan confirming Ellis' right to do private work. Since no
specific mention was made of use of the Force garage, he interpreted it as
not authorizing Ellis to use the Force garage for private repair work,
although it is difficult to understand how Ellis was expected to do such
repairs during his lunch hour other than in the garage, taking into account
the problem of transporting heavy and diverse tools to some other location.
On February 11, 1987, Acting Chief Shoveller wrote a memorandum to
Staff Superintendent Gittings referring to the authorization memo of
September 23, 1981, and directing that the use of the Force garage for any-
thing other than Force vehicles was to cease immediately.

(2) Parnell paint job

In the late fall of 1986, Deputy Chief Shoveller attended at 11 Neilson
Street to discuss with then-Staff Sergeant Michael Locke, who was in
charge of Quartermasters Stores, the concerns he had with the operation of
the garage and the stores. During the discussion, it was revealed that Ellis
had arranged for a paint job on Mrs. Parnell's private car. Locke spoke to

Force Resources 9]

EUis, and Ellis told him that he had arranged for the paint job at Checkpoint
Chrysler; that Mrs. Parnell had paid for it; and that he would obtain a copy
of the invoice. Ellis did so and gave it to Locke. It was addressed to Mrs
Parnell in care of Chief Gayder's office, and indicated that it had been paid
for by cheque. Shoveller called Locke a week or so later, asking about the
paint job, and Locke forwarded the invoice to him.

Shoveller spoke to VanderMeer about the matter in December of
1986. Shoveller says he was satisfied, upon receiving the invoice, that
Parnell had paid for the work, and his concern was that Ellis was using his
position to obtain a "deal" for the private cars of Force members. On his
return from holidays early in January, 1987, Shoveller gave VanderMeer a
copy of the invoice, but does not recall whether he told VanderMeer that
he was satisfied about the payment.

VanderMeer was not satisfied because the invoice was addressed to
Parnell "c/o Police Chief Staff," and he suspected that the account had been
paid out of Force funds. Since he did not know what bank the cheque was
drawn on, and in order to avoid alerting Gayder or Parnell about his
inquiries, he contacted the headquarters of several chartered banks to
ascertain the source of payment for the paint job.

One of the bank persons contacted in Toronto was a friend of Gay-
der's, who advised Gayder. Gayder, as Chief, was outraged that such an
inquiry was being made without his knowledge, and questioned Parnell
about the payment. On learning she had paid personally, he encouraged her
to initiate an internal complaint against VanderMeer.

During the investigation of this complaint by the Complaints
Bureau, VanderMeer was interviewed and was shown a copy of the Check-
point Chrysler invoice with an attached bank deposit slip of that firm dated
October, 1984, indicating payment by Parnell, and VanderMeer was then
convinced that there had been no misconduct so far as payment was con-
cerned. However, the paint job included a considerable amount of body
work because of rust damage to Parnell's car, which was a 1977 Olds-
mobile, so was about eight years old. VanderMeer suspected that there had
been some infiuence exerted to obtain an unusually good price for the work.

Ellis is not sure whether it was Gayder or Parnell who asked him
to obtain an estimate. Gayder denies any involvement. The body of the in-
voice stated that it was for "repair and paint complete $1,450," and then at
the bottom set out the total cost consisting of "labour $1,450, materials

92 Force Resources

$150, tax $112" for a total of $1,712. There was no further breakdown of
the work done. For what was done, the account was obviously quite mod-
erate. The body shop man from Checkpoint Chrysler was called as a wit-
ness, and stated that, while the price was a very good one, nevertheless it
was reasonable, due to the fact that the price had to be within a certain
range in order to make it worthwhile to have the work done on a car seven
or eight years old, and indicated that Checkpoint Chrysler was glad to have
the work in order to keep its employees busy.

Counsel for both Chief Shoveller and for the Board suggested in
their cross-examinations that Gayder had improperly influenced Ellis to get
a special deal for his secretary. In this regard, Ellis was asked if he was
trying to maintain a good relationship with Gayder, and he replied, "...
you've got to keep your boss happy."' The Board counsel have emphasized
this reply as indicating improper conduct on the part of Gayder. Com-
mission counsel made no specific submissions as to misconduct on the part
of those involved, but pointed out that there was a problem in that Ellis
appeared to have used his influence, as the Force mechanic, to obtain a
benefit for the Chiefs secretary because he felt that, "You've got to keep
your boss happy." Ellis's reply is indicative of an attitude that is not un-
common on the part of an employee, and there is no evidence that Gayder
encouraged it, or derived any benefit from it. Counsel for the Force submits
that a proper investigation would have immediately established that Mrs.
Parnell had paid for the paint job, and that should have been the end of the
matter.

On the evidence, I cannot find misconduct on the part of either Mrs.
Parnell or Gayder, but the allegations point up the dangers of allowing the
appearance of private work being done or arranged in the workplace. The
Board counsel also submitted that it was improper for Ellis to make such
arrangements and haggle for a good price during office hours, it being
assumed that the call to Checkpoint Chrysler did take place during office
hours, although Ellis could not recall whether that was so. Again, the loose
arrangement regarding Ellis's working conditions make it unfair to impose
strictures upon his working hour activities that had apparently never been
discussed between himself and Chief Harris or anyone else, and I cannot
conclude that his actions amounted to misconduct. While private telephone
calls during working hours should be discouraged, the problem is not
unique to the Force, is not generally viewed as a serious abuse, and has
now been eliminated by an order expressly prohibiting the practice.

' Inquiry transcript, vol. 71 (May 30, 1989): 101.

Force Resources 93

(3) The Parnell tire switch

As a result of VanderMeer's interrogation of Ellis in April of 1987,
VanderMeer learned that sometime around March of 1986 (no one is very
definite about the time) Parnell 's car was in the Force garage for some
service, and Ellis noted that the tires u'ere in very bad shape. Neither
Gayder nor Ellis is clear about who called whom, although Gayder believes
Ellis called him, and Ellis believes Gayder may have called him to find out
whether Mrs. Parnell's car was ready. In any event, Ellis told Gayder about
the tire condition, and Gayder said to do whatever he could about it. Ellis
does recall telling Gayder that the two rear tires were in bad shape, and that
he replaced them with two tires that weren't much better. Gayder says that,
in a telephone conversation, Ellis told him that he had had the two rear tires
on Parnell's car replaced, and that the replacement tires were from a
trade-in vehicle. He says he then asked Ellis if there was any problem with
this, and Ellis said that there was no problem, that they were just two old
tires that were scrap. The tires were entered as exhibits, and it appears that
actually four tires were placed on the car, two being Bridgestones and two
being Firestones. The Firestones were size 205s and the Bridgestones were
size 215s. Evidence was given that there was something between 50 to 60
per cent of tread life left in the tires, although the sidewall on one of the
tires was not very good.

When Mrs. Parnell arrived to pick up the vehicle, she was appar-
ently told for the first time by Ellis that the tires had been changed, and she
states he told her they were tires that were going to be thrown out. She as-
sumed from something he said that only two tires on the back had been
provided and asked what she owed, and Ellis told her she would have to
pay for the changing and balancing by Direct Tire Co., and that the cost
was $50, for which she gave him a cheque. She apparently thought nothing
further about the matter.

Inspector Stevens, who was in charge of the garage and stores, had
a conversation with Ellis in April or May of 1987, after Ellis' interview by
VanderMeer. Ellis told Stevens that, having noticed Parnell's tires were
badly worn, he called Gayder and stated that Parnell's car was ready, but
that it would need tires and Gayder responded, "See what you can do." Ellis
told Stevens that a police car was being traded that day to Checkpoint
Chrysler, and that he had the tires switched from that car to the Parnell car.
Prior to switching the tires, he called Gayder and told him that he had
located some tires, but that Parnell would have to pay for the switching and
balancing. Gayder told him to go ahead.

94 Force Resources

Considerable cross-examination by Board counsel involved the
question of the ownership of the tires at the time of the switch. When a new
vehicle is ready for delivery from the dealer, the old Force vehicle is
brought into the Force garage, and police equipment such as sirens, flashing
lights, etc. are removed, and if the tires are in good shape, the wheels will
be transferred to another police vehicle, if there is one in the garage at the
time, and the wheels will fit it. Tires cannot be removed from the wheels
and then mounted on another vehicle's wheels, because there are no
facilities for changing tires. Both Stevens and Inspector Locke (Stevens'
successor) stated that it was Force policy that cars being traded in must be
in good roadworthy shape, since that was the understanding when the
trade-in was negotiated at the time of the ordering of the new replacement
vehicle. However, as far as tires were concerned, the dealer would usually
be installing new tires. The used-car manager from Checkpoint Chrysler
gave evidence that this was the custom, and that, if Ellis had called him and
asked permission to switch the tires, he would unquestionably have given
him the firm's consent. He stated that, for safety certification purposes, he
could not have sold the trade-in with two different sizes of tires, and that
if the trade-in had come in with those tires on it, he would have removed
them, replaced them with new tires, and stored the old tires as spares for
older cars, "or something." The witness stated that the trade-in vehicle in
question was a detective car without markings, and was given a safety
check requiring the installation of four new tires, and that he considered that
once the replacement car was delivered to the Force, the trade-in vehicle
became the property of his company. It would appear, therefore, on the
balance of probabilities, that property in the trade-in vehicle, including its
tires, had passed to Checkpoint Chrysler at the time that they were removed
and placed on the Parnell vehicle, assuming that the replacement car had
been delivered before the old one was taken out of service.

Commission counsel submits that the removing of the tires and
placing them on the Parnell vehicle was improper. He submits that there can
be no doubt that the tires did not belong to Ellis, Gayder or Parnell,
regardless of to whom they actually did belong — the Force or Checkpoint
Chrysler. Gayder had good reason to know that the tires were coming from
a trade-in vehicle, and in fact, Ellis believes he told Gayder that. Gayder
had some idea of impropriety, in that he asked Ellis whether there was any
problem with what Ellis had done, and stated in evidence that the reason he
asked that question was that he knew that "... you can't take tires off of a
police car and put them on a private car.""^ The responsibility was upon

Inquiry transcript, vol. 69 (May 24, 1989): 120.

Force Resources 95

Gayder to decide if there was any problem, not upon Ellis. Ellis's conduct
can be excused to a large extent, because his Chief seemed to be blessing
what he had done.

Submissions by Mr. Barr, for the Force, were simply that Mrs. Par-
nell had no reason to assume that there was anything wrong with what was
done about the tires, that she paid the $50 she was asked to pay in relation
to the switching and balancing, and that under the presumption of inno-
cence, she should not have been, in effect, called upon to establish her
innocence. He submits that the real question is why she was subjected to
the type of accusations levelled against her by the IIT.^

I have no hesitation in concluding that it was very poor policy to
allow work on private vehicles to be done in, or arranged through, the
Force garage, and that the practice invited rumours of impropriety. Chief
Harris, undoubtedly, was in a difficult situation due to lack of funding, but,
at least in hindsight, it is apparent that he should have waited to open a
Force garage until his budget allowed the provision of Force equipment.

While facilities at the Force garage were insufficient to permit
switching of tires unless the wheels themselves were interchangeable, the
Parnell tire exchange leaves an impression that the Force might have been
able to benefit from the tires in question had the Force been prepared to pay
the cost of switching them at a private garage as was done for Parnell.

In any event, it was improper for Gayder to allow tires from a
trade-in vehicle to be exchanged for tires from his secretary's vehicle. To
inquire from the garage mechanic whether there was any problem with the
switch was an abdication of authority and indicated his concern with the
propriety of the situation.

It would seem that Mrs. Parnell herself should have realized that the
exchange was improper, although she apparently simply went along with an
arrangement that she assumed was approved of Ellis was at fault for
suggesting the switch without clearing it with Checkpoint Chrysler, regard-
less of how sure he was of approval.

The whole situation was improper, and I understand that it has been
corrected by Chief Shoveller. I strongly recommend that all necessary fur-
ther steps be taken to ensure that it cannot happen again.

See p. 226.

96 Force Resources

(4) Reginald Ellis and alleged kickbacks

As already indicated, Reginald Ellis was a civilian Force mechanic from
1978 to 1988. Until January 2, 1986, the Quartermasters, who were respons-
ible for the Property Section, were not mechanics, and the running of the
garage was left pretty much to Ellis, who was not an administrator.
According to Inspector Locke, who took over as Quartermaster on January
2, 1986, there was no adequate program for vehicle maintenance, repairs or
parts purchase or inventory, and little room to store spare parts. During the
Inquiry hearings, allegations were made that Force vehicles were being sent
to outside garages for service or repairs, when repair bays in the Force
garage were not busy, and that Ellis was working on private vehicles on
Force time. The evidence is unclear as to whether Ellis did some private
work during regular working hours when he was not busy on Force work,
or during an extension of his lunch hour, but since he is no longer with the
Force, and regulations no longer permit the privileges originally accorded
to Ellis, the only importance of the issue is the lesson it teaches as to the
inappropriate nature of such a policy.

In the course of their investigations in 1987, the IIT learned from
Derwyn Woodhouse, a mechanic employed by a repair shop specializing in
front-end work, that sometime in 1979 or 1980 Ellis, whom he knew
slightly, telephoned him and asked what the cost would be for front-end
alignments for Force vehicles. He testified that, upon a price being quoted,
Ellis said: "If I send you the work, what's in it for me?'"^ He interpreted
this to be a request for a "kickback," and answered: "Nothing." Ellis said:
"I'll be talking to you" and hung up. He heard nothing more from Ellis. On
April 12, 1988, Ellis appeared at a preliminary hearing in Provincial Court
charged with demanding a benefit for himself under Section 383 of the
Criminal Code in relation to the above incident, with stealing a battery, with
defrauding the Force by causing unnecessary repairs to a Force vehicle prior
to its trade-in, with stealing Force tires (in relation to the Parnell matter),
and with breach of trust.

On May 3, 1988, all charges were dismissed at the preliminary
hearing stage. Ellis's employment had been terminated by the Force at the
time the charges were laid, and a settlement of an arbitration of Ellis's
claim for wrongful dismissal was arranged. The settlement called for his

" Inquiry transcript, vol. 92 (Aug. 21. 1989): 84.

Force Resources 97

reinstatement, to be immediately followed by his resignation and the pay-
ment to him of some $50,000 in damages, back pay and legal costs.

Of the events referred to in the charges, the only ones dealt with by
this Inquiry were the matter of the Parnell tires which has been reported on
above, and the "What's in it for me?" incident. Both Inspector Stevens and
Inspector Locke testified in the present hearings that Ellis was an unusually
hard bargainer in obtaining quotations from garages and suppliers, and his
style was variously described as "embarrassingly persistent" and "wheeling
and dealing" and that he was a "grinder" in negotiations. Inspector Stevens
stated he had frequently heard Ellis, when negotiating, openly say "What
can you do for me?" which he interpreted as seeking a better deal for the
Force. He had never heard him say "What's in it for me?"

Inspector Locke had heard Ellis use both phrases when negot-
iating, and the way they were used indicated that the "me" in both contexts
meant the Force. Locke insisted, under vigorous cross-examination by
several counsel, that Ellis was an honest person who had never taken so
much as a rag from the garage. Ellis agreed that he used the phrase "What
can you do for me?" meaning the Force, and was not sure whether he ever
used the wording "What's in it for me?," but swore that whenever he used
the word "me" in such context, he meant the Force. He insisted he had
never sought or received any kickback or other benefit, and no evidence
was produced to indicate that he had. "What's in it for me" has a more
serious connotation than "What can you do for me?" although both phrases
are open to the interpretation that a personal benefit was being sought. On
the other hand, "What can you do for me?" can very well refer to ''^ne" as
representing the employer. Any conclusion as to what Ellis really meant
must take into consideration the facts that the conversation in question
occurred some nine years ago, that in a telephone conversation it would be
easy to confuse "What can you do for me" with "What's in it for me," that
Mr. Woodhouse was not familiar with Ellis's aggressive style of bargaining
or his frequent use of the word "me" as representing the Force, and tha^t
there is no evidence of Ellis having demanded personal benefits in other
cases.

As already noted, a very experienced provincial court judge con-
cluded that there was insufficient evidence, even if believed, to justify
putting Ellis on trial. Similarly, the evidence before me was' much too
equivocal to support a finding of misconduct or impropriety. However, the
problem has been recognized and corrected by Chief Shoveller.

98 Force Resources

Background

In the fall of each year, the Quartermaster reviews the status of Force vehi-
cles in terms of mileage and condition, and prepares a report for senior staff
recommending the purchase of replacement vehicles. Once approved, the
Niagara Region's purchasing department prepares a tender form for the
required vehicles with a proposed delivery schedule, spread out over the
coming year, together with a list of the used vehicles to be traded in and
showing the estimated number of kilometres on each at the anticipated time
of trade. The tender form is distributed to suppliers throughout the Region.
Although the suppliers are invited to examine the trade-ins, they seldom do,
relying on the understanding that the trade-ins will have approximately the
kilometrage at trade-in as stated, and be in reasonable condition and free of
collision or glass damage. This is an unwritten guarantee, based on good
faith built up over the years, which ensures the maximum trade-in allow-
ance.

After a public opening of tenders, the purchasing staff forward a
report to the Board recommending purchases from the successful bidder in
each vehicle class. Following Board authorization, purchase orders are
placed, but the actual time of delivery will depend on several factors,
including production schedules, the availability of the particular models and
the projected date for trade-in of each particular trade-in vehicle.

Once the supplier notifies the Quartermaster that new vehicle de-
liveries will be commencing, the Quartermaster notifies the divisional
supply clerks to check with him before authorizing major expenditures on
a vehicle with an approaching trade-in date. Because of the uncertainty of
new vehicle deliveries, pending such notification, it is simply a judgement
call by the supply clerk as to whether or not a repair order should be issued.

(1) The excessive vehicle repairs allegations

During the 1980s, rumours circulated that members of the Force, par-
ticularly staff of Quartermasters Stores and garage, were purchasing former
Force vehicles from dealers immediately after they had been traded in on
the purchase of new Force vehicles. The suspicion was that the purchasers
had obtained a special advantage because of their knowledge of the

Force Resources 99

condition of the vehicle, and that in some cases, repairs or improvements
were done to such vehicles just before trade-in.

The practice was that repairs costing less than $100 were at the
discretion of the Force mechanic, between $100 and $200 required approval
by the Quartermaster, and over $200 required approval from the Quarter-
master's superior officer. The supply clerk at Quartermasters Stores testified
that she was responsible for recording all repair work done on Force
vehicles, and these repairs were recorded on a separate page for each
vehicle contained in a ledger euphemistically referred to as "The Bible."

The Commission investigators found that Force members did, on
occasion, purchase trade-ins, and they did a random sampling of the records
of 25 (about 5 per cent) of the vehicles traded in between 1975 and 1986.
None of these had been purchased by a Force member. In the three months
prior to trade-in there was an average of 12 repairs per vehicle at an
average total cost of $523.38. Almost half of the vehicles had body work
and/or paint work in this three month period. During the three weeks prior
to trade-in, 20 of the 25 cars in question had a total of 70 different repairs
at an average cost of $126.38 per vehicle. One of the vehicles had a
$342.99 partial paint job six days before it was traded.

It accordingly appears that, presumably because of the heavy use to
which police vehicles are put, substantial, including cosmetic, repairs are
frequently made to police vehicles shortly before they are traded, in order
to maintain the efficiency and appearance of the Force. Evidence of such
repairs to a vehicle which was shortly thereafter traded in and purchased by
a police officer is thus not in itself evidence of impropriety.

Inspector Locke, an experienced licensed mechanic, analyzed the
past maintenance records and concluded that there had been a large number
of unnecessary repairs throughout the life of some vehicles. He testified that
these occurred because records were not always checked, and because of the
tendency of some dealers, not knowing the cure for a problem, and unaware
of the maintenance history of the vehicle, to replace every related item in
a scatter-gun approach. For instance, in the case of six particular vehicles,
one had 23 replacement tires in two years, another had 18 tires within
90,000 kilometres, another had a total of 16 brake repairs (two within 1500
kilometres), another had 12 front-end alignments within 18 months (four
within one month), another had spark plugs, rated at 35,000 kilometres,
replaced four times within 19,000 kilometres (one of these being within 1 10

100 Force Resources

kilometres), and another had five propane converter overhauls within 40,000
kilometres, two of which were within only 800 kilometres.

These examples indicate a problem of poor management of a diver-
sified fleet being serviced in decentralized areas. There is no evidence that
there was any improper motive or benefit on the part of any Force member
in any unnecessary repairs. With the problems now identified, the evidence
indicates that they are being addressed, and should not occur in the future
if recommended facilities to allow centralization of vehicle repair work are
provided.

Force Resources 101

(D) IMPUGNED VEHICLE PURCHASES BY FORCE
MEMBERS

(1) Rodney Marriott - 1979 Dodge

Force records indicate that between March 11, 1980, and June 30, 1980,
four new tires were installed on Force vehicle 128, a 1979 Dodge Aspen,
at a cost of $233.05. On June 20, 1980, it received body and paint repairs
at a cost of $145. On July 1 1, 1980, it was traded to a dealer, and on July
18, 1980, it was purchased by Rodney Marriott, a civilian employee in the
Force garage.

Both the IIT and Commission investigators investigated the matter.
A Firestone invoice of March 11, 1980, covered installation of a new tire
on this vehicle and one dated May 9, 1980, covered another new tire, as did
a further invoice of June 16, 1980. Each invoice was signed by the patrol
officer who took the vehicle to the Firestone garage. The June 20, 1980,
invoice for $145 listed repairs to the left front fender and painting of the
hood and fender and was signed by the Force mechanic.

Inspector Stevens, the then-Quartermaster, stated that damage repairs
were always done before a vehicle was traded as a matter of policy. Rodney
Marriott advised that when he was preparing the vehicle for the trade, he
noticed it had comparatively low mileage, and decided to purchase it
following the trade. He stated he had nothing to do with the new tires or
repairs.

The IIT originally questioned whether Rodney Marriott was guilty
of deceit in the circumstances, but did not include this matter in its report
to the Attorney General. On June 19, 1989, all counsel agreed that, although
the circumstances warranted an investigation by the IIT, "The evidence, as
it has been developed to date, indicates that the individuals involved were
guilty of no wrongdoing."'' I agree.

(2) Clayton Marriott — 1982 Dodge Aries Station Wagon

A 1982 Dodge Aries Station Wagon, used by the Identification Unit, was
traded to a dealer on April 14, 1986, and on the same day was purchased

Inquiry transcript, vol. 77 (June 19, 1989): 28.

102 Force Resources

by Inspector Clayton Marriott. The circumstances were investigated by both
the IIT and Commission investigators. Inspector Marriott stated that he
wanted an older vehicle as a second car, and that his son, Rodney, who
worked in the Force garage, had advised him that the station wagon was to
be traded. Inspector Locke testified that in the three-and-one-half month
period before the trade, $453.20 was spent on repairs, which was com-
parable to other vehicles of similar age and condition, and that he had
advised Inspector Marriott that it was not a very good car and would need
a new carburettor and a lot of other work. The IIT prepared a report but did
not forward it to the Attorney General with their other material. All counsel
agreed that, although the circumstances justified investigation by the IIT,
the evidence "indicates that the individuals involved were guilty of no
wrongdoing."^ I agree.

(3) John Stevens - 1976 Ford

On July 7, 1981, a 1976 Ford (Unit 424), was traded by the Force, and on
the same day Staff Sergeant (now Inspector) John Stevens purchased it from
the dealer. Stevens had been in charge of Quartermasters Stores, including
responsibility for the garage, but on May 6, 1981, was promoted and trans-
ferred to another post. Both the IIT and the Commission investigators
investigated the purchase. It appeared that on May 18, 1981, two new tires
were installed on Unit 424 at a cost of $167.06; on May 19, 1981, the
radiator was re-cored at a cost of $83.46; and on May 25, 1981 the exhaust
was repaired at a cost of $65.87. Inspector Stevens stated to the IIT that he
was familiar with the car, and that the dealer offered it at a price that he
was prepared to pay. He saw that the tires were in good shape, but had no
idea when they were installed.

The IIT prepared a brief which it forwarded to the Attorney General
with its other briefs, asking whether: "Considering all the circumstances,
and keeping in mind that Stevens left supply on May 6, 1981, several
weeks before car number 424 was traded," did Stevens commit fraud and
breach of trust under the Criminal Code, and did he violate the Police Act
by using his position as a police officer for personal advantage? No written
response was received from the Attorney General in relation to this matter.
It was agreed by all counsel that, although the circumstances were such as

Inquiry transcript, vol. 92 (Aug. 21. 1989): 52.

Force Resources 103

to warrant investigation by the IIT, tiie evidence indicates "that the in-
dividuals involved were guilty of no wrongdoing."^ I agree.

(4) Ronald Bevan
(a) 1973 Matador

From January 1, 1971, to October 1 1, 1977, Ronald Bevan was an Inspector
in charge of Finance and Personnel, which included the purchase and supply
of the needs of the Force. On October 11, 1977, he was appointed super-
intendent in charge of Administrative Services. He retired on September 20,
1985, and died on October 2, 1987. On November 2, 1978, the Force traded
a 1973 Matador to a dealer, and it was purchased by Bevan on November
6, 1978. According to the date on the relevant invoices, on November 1,
1978, two new tires were installed at a cost of $71 .33 and on November 3,
1978, a muffler was installed at a cost of $27.28. Both invoices were billed
to the Force.

The IIT prepared a brief, which was not submitted to the Attorney
General, which stated: "Bearing in mind Bevan's knowledge as it related to
the vehicle, do the last two repairs, the tires and the muffler, constitute the
offence of Fraud and possibly Breach of Trust, given Bevan's fiduciary
position."

The Commission investigators investigated the incident and prepared
a brief. After reviewing both the IIT and Inquiry briefs, all counsel agreed
that the evidence as developed "indicates that the individuals involved were
guilty of no wrongdoing."^ I agree.

(b) 1974 Volkswagen

On May 4, 1977, the Force traded a 1974 Volkswagen, and on the same
day it was purchased from the dealer by Superintendent Bevan. An invoice
dated May 18, 1977, for installation of a windshield on this vehicle was
billed to the Force. Both the IIT and the Commission investigators

' Inquiry transcript, vol. 77 (June 19, 1989): 35.
" Inquiry transcript, vol. 92 (Aug. 21, 1989): 54.

]04 Force Resources

investigated the purcliase. The installer no longer had records indicating
when the work was actually done. The IIT concluded that the offence of
fraud and possibly breach of trust had been committed by Mr. Bevan. Be-
cause Force financial records are destroyed after seven years, no records of
the payment, other than the vehicle maintenance record, are available.

Ronald Bevan's son. Inspector Vince Bevan, testified that his father
was interviewed by members of the IIT on May 7, 1987, and made an
appointment with them to have them call back to pick up some relevant
receipts he intended to assemble. Vince Bevan stated that no one from the
IIT returned, and his father spoke to Acting Chief Shoveller during the
summer of 1987 about the matters the IIT had raised, and Shoveller said he
would check. Vince Bevan testified that his father told him that on August
31, 1987, the day Acting Chief Shoveller was appointed Chief, Ronald
Bevan had a conversation with Chief Shoveller who told him that
"everything was looked after, not to worry about it." Vince Bevan produced
the receipts his father had assembled for the IIT, which included a receipt
to Bevan dated June 2, 1977, for painting the Volkswagen.

Mr. Barr, counsel for the Force, pointed out that the replacement of
the windshield at the time of trade-in was in accordance with Force policy
of trading in only vehicles in roadworthy condition. If the windshield was
damaged at trade-in, it would be the Force's responsibility to pay for repairs
so that it would pass a safety check. Because of the destruction of Force
records which might have revealed the circumstances of the windshield
replacement, and the failure of the IIT to obtain an explanation from Ronald
Bevan prior to his death, it is not possible to conclude that any impropriety
had occurred.

On February 22, 1982, a 1979 Toyota was traded to a dealer, and on Feb-
ruary 23, 1982, it was registered to Brian Bevan, Superintendent Bevan's
son, and on February 25, 1982 it was registered to Ronald F. Bevan,
apparently for insurance purposes. Niagara Region's records showed an
invoice dated February 24, 1982, for installation of a starter for this vehicle
at a cost of $175.21. The "Bible" record on this vehicle indicates that on
February 15, 1982, the vehicle was towed to the garage where the starter
was installed. Vince Bevan's evidence was that installation was delayed due
to the fact that the starter had to be ordered. Apparently no records of the
installer remain to show the actual date of installation. Vince Bevan

Force Resources 105

produced an invoice indicating that on February 25, 1982, Ronald Bevan
had had the vehicle painted and the roof, right door and body side
mouldings repaired at a different garage than the one which installed the
starter. The IIT had none of this information, and it prepared a brief in
which it concluded that Mr. Bevan had committed fraud and possibly
breach of trust due to his fiduciary position. The brief was not included in
the briefs forwarded to the Attorney General.

The only suggestion of impropriety lies in the fact that the sale
documents indicate that Bevan bought the Toyota from the trade-in dealer
three days before the starter was installed at the Force's expense, but after
it had been towed to a garage for the starter repairs. An explanation for the
delay in billing the Force was supplied by Vince Bevan's evidence. Putting
the vehicle in roadworthy condition before trade-in was in accordance with
Force policy. I conclude there was no wrongdoing.

(5) Michael Miljus

(a) 1976 Plymouth Fury

On July 1 5, 1 98 1 , a 1 976 Plymouth Fury was traded, and on July 17, 1981,
it was purchased by Staff Sergeant Miljus for $750. The evidence as to
alleged repairs to the vehicle shortly before the trade is conflicting and
recollections are confused. It is far from clear whether the witnesses were
referring to the same vehicle. Although detailed records have been de-
stroyed in the normal course, the "Bible" was available. As earlier in-
dicated, it lists each Force vehicle on a separate page with a history of all
service and repairs. According to the "Bible," on May 6, 1981, two new
tires were installed on the Fury at a cost of $98.52. On July 3, 1981, the
seat cushions were repaired at a cost of $91.75. The Fury was a "plain" or
"unmarked" car, and when it was about five or six years old was assigned
to the Thorold detective office where it was used by Sergeant Gerald Ryan
and Sergeant Brian Nesbitt. Ryan testified that on May 6, 1981, two new
tires were installed on the car on instructions from Michael Miljus. On that
date, Miljus was on assignment to "C" Platoon in Niagara Falls on uniform
duty and could not have given instructions for replacement of tires. It was
not until May 26, 1981 that Miljus was assigned to Supply in St. Cathar-
ines.

Both Ryan and Nesbitt agreed that the tires and upholstery repairs
were necessary. Ryan says Miljus ordered the cushion repairs, but Miljus

106 Force Resources

cannot recall this. Ryan states that the car was a maroon colour, but that
shortly after the cushion repairs, on Miljus's instructions, the car was
repainted brown; it was given a tune-up, and a new battery was installed
There ,s no record of these latter repairs, which are the major source of the
cnt.c.sm levelled at Miljus. Nesbitt states that the car was burgundy but was
repamted in a brown colour, and that the repainting was necessary, but he
did agree that he might be thinking of a different car. Ministry of Transport
records show the car purchased by Miljus to have been brown when
origmally registered to the Force.

Rodney Marriott, a civilian Force garage employee, testified that in
the summer of 1981 he was looking at projected Force car trade-ins for
possible later purchase by his father-in-law, John Vanderlee. He and Mr
Vanderlee examined a brown Plymouth Fury just prior to it being traded'
and both stated that it was in "rough" condition, with rust spots and a worn
interior with no indication that it had been recently painted. Mr. Vanderlee
decided he had no interest in buying it.

^ Marriott testified that a short time later he saw the same car in
Miljus s personal parking spot, and assumed he had bought it Milius
testified that he had decided to buy the car only after he learned that
Vanderlee was not interested, that he had not ordered any work to be done
on It, that he did not believe it had been recently painted and cannot recall
the upholstery condition. Constable John Kennedy purchased the car from
Mdjusjn February, 1983, for $600. He testified that the front seat was
badly sunken and the paint was very faded and had a number of rust
spots. He did not believe that it could have been painted within the previous
two years. He scrapped it on July 14, 1983.

T , mJi^V'^'^'''" '^'''^' ^^^^ '''P^^'' "^^'^ ^^"^ ^o the vehicle in May and
July 1981, but that the last time the vehicle was painted was October 15

19/9, and at the same time some upholstery work was done. Neither the
Bible nor the Region's microfilm records of paid invoices show any
painting for this vehicle in 1981. The person in charge of the vehicle
records testified that, on the basis of the records, Sergeant Ryan's evidence
about a paint job for this vehicle sometime after July 3, 1981 "would
simply be wrong."

7^^"^. P'''^'""'''^ ^ ^''^^ ''^ ^''J^^'^ purchase for the Attorney
General and asked whether Miljus was guilty of fraud and breach of trust
under the Cnnunal Code and improperly used his position for private

Force Resources 107

advantage as defined in the Police Act. No written response was received
from the Attorney General.

I found Miljus to be a credible witness. The region and Force re-
cords appear to support his evidence and I can only conclude that the
contradictory evidence resulted from confusion, possibly due to passage of
time, about a paint job done on a different but similar vehicle. The other
repairs are not different from those the Force normally authorized to keep
a vehicle in good running order, even when a trade was expected in the
near future. However, the evidence, once more, graphically illustrates the
rumours, harmful to the Force as well as to the individual, that can arise
from the practice of allowing Force members to purchase Force property.

(b) 1979 Ford Fairmont

A 1979 Ford Fairmont was traded on March 1, 1983, and was purchased by
Miljus on the same day. Recent repairs to this vehicle were as follows:

January 18, 1983, rebuilt carburettor— $66.30;

February 15, 1983, signal light - $7.32;

February 23, 1983, steering repairs and parts ~ $56.84;

February 16, 1983, paint hood and tops of fenders, polish car,

replace side mouldings — $321.

Ronald Feilde, the body shop manager from the garage where the
work was done, and who gave the estimate for the paint job, stated that the
paint on the car was faded, and the hood and fenders were worse than the
rest of the body, so they were painted and the rest of the body was buffed
to bring the colour up to try to match the new paint. He stated that at some
point he became aware that Miljus wanted to buy the car, but could not
recall whether he learned this at the time of giving the estimate, or when
the car was traded.

Reginald Ellis also obtained an estimate for a complete paint job,
but when Miljus gave the two quotes to Superintendent Bevan, Bevan
instructed Miljus to just have the partial job done, because the car was due
to be traded. Miljus testified at that time he was looking at an eight cylinder
Chrysler as a possible purchase, and it was only later when he learned that
the bigger car was not available that he decided to buy the Fairmont.

108 Force Resources

Because purchase of Force trade-ins was apparently not prohibited
by regulations, or even discouraged by senior officers, and due to the equiv-
ocal nature of the evidence regarding the repairs to the Fairmont, it is not
possible to conclude that Miljus was guilty of improper conduct. However,
it should have been apparent to him that, being in charge of the department
that authorized repairs to vehicles shortly before they were traded, his
purchase of a Force vehicle immediately after trade-in was literally asking
for allegations of impropriety.

On August 8, 1984, a 1980 Plymouth Volare was traded in by the Force,
and on the same day it was purchased from the dealer by Michael Miljus.
On April 7, 1984, the vehicle's vinyl roof was replaced at a cost of
$240.75. Miljus testified that the vinyl roof had peeled back while the
vehicle was being driven on the highway. He stated that Reginald Ellis, the
Force mechanic, had told him just before the trade-in that he had intended
to buy the car, which was a good one, but could not afford it because of
personal problems, and Miljus then decided to buy it himself.

The IIT sent a brief to the Attorney General asking: "Based on the
available data, insofar as the purchase of the 1980 Plymouth Volare is con-
cerned, did Staff Sergeant Miljus violate any of the provisions of the Crim-
inal Code of Canada or the Police Act of OntarioT The Attorney General
did not comment on this matter in his reply.

On the evidence, there was nothing improper about having a vinyl
roof replaced four months before trade-in, so there are no grounds for a
finding of impropriety against Miljus in relation to this particular incident,
but, as already pointed out, it illustrates the dangers to the reputation of the
Force and individual Force members arising out of private purchases of
former Force vehicles.

CONCLUSION

The instances described above indicate the extremely loose administration
of Quartermasters Stores and Supply that continued from the inception of
the regionalized Force through at least until 1986, and the faulty judgement
of some senior officers in failing to recognize the negative image they

Force Resources 109

projected to other Force members, and to the public, in having their
vehicles repaired in Force facilities and in purchasing vehicles recently
traded in by the Force. While there is no evidence that there was any
financial loss suffered by the Force as a result of purchases of traded in
police vehicles by police officers, there is some suggestion that work on
Force vehicles may have been delayed as a result of time spent on repairs
to private vehicles. In any event, the use of insider knowledge to benefit an
insider, while not amounting to misconduct in the absence of orders pro-
hibiting such conduct, is extremely imprudent and invites the kind of al-
legations that resulted.

I understand that as a result of these disclosures, these actions are
now prohibited, and I recommend that the situation should continue to be
closely monitored.

J 10 Force Resources

(E) SPECIAL FUND

As we have already seen, section 1 8 of the Police Act provided that where
found or stolen property came into the possession of the Force and the
owner could not be ascertained, the Board could sell it and retain the
proceeds for its own use (the Police Services Act now transfers this duty to
the Chief)- The NRPF practice was to convert to Force use, items, such as
office equipment etc. that could be used by the Force, to give to charities
clothing and similar items, and to sell at auction the remainder, mostly
bicycles, of which there were 150 to 300 a year. All such items were
recorded and tagged and held in the Neilson Street Quartermasters Stores
until disposed of. An inventory was maintained, and all sold items had the
selling price recorded and a duplicate sales slip was issued and verified by
the auctioneer.

Proceeds were deposited with the Force accountant, who checked
the total amount received against the sales slips. The balance, after ex-
penses, was deposited in the Special Account, and varied from $7,000 to
$14,000 per auction which occurred three or four times a year, depending
on the volume of items received. According to a resolution of the Board
dated May 31, 1983, the Special Fund was to be used for rewards, inform-
ants fees, undercover officers drug purchases, and "to pay expenses not
normally provided for in the budget." These sometimes included floral
tributes for funerals, conference expenses, retirement gifts etc. The Deputy
Chief (Administration) was responsible for disbursements from the account
and for keeping proper account books, although Gayder retained control of
the fund when he was promoted from Deputy Chief (Administration) to
Chief

Disbursements required the signatures of the Chief and one of the
Deputy Chiefs. Confidentiality of the names of informants was maintained
by cross-reference to a secret ledger. Disbursements of more than $2,000
required specific Board approval. Two members of the Board were desig-
nated to audit the account periodically.

When John Shoveller was appointed Acting Chief, he requested an
audit of the Special Account before taking it over. The Board retained a
"forensic accountanf for this purpose.

The accountant's comprehensive review found no improprieties, but
he recommended the tightening of guidelines for overall control of fund
uses. On September 15, 1987, the Board passed a motion requiring

Force Resources 111

expenses for civic receptions, testimonial dinners etc. to be paid out of the
"Conventions Account" rather than the Special Fund, and on October 26,
1988 replaced the provision for "other expenses not normally provided for
in the budget" with "other expenses specifically approved by the Board."

While none of the disbursements from the Special Account during
the period examined could be considered improper, the possibility remains
that large, albeit perfectly proper, expenditures could be made without
political accountability because they are not made public. My recom-
mendation in this regard appears with my other recommendations at the end
of this Part.

The long-standing policy of not returning found money or bicycles
to the finder when the owner could not be located was clearly wrong,
although there can be sympathy for the theory that the Force might
otherwise be used as a laundering machine for "dirty money" or stofen
bicycles, if bicycle thieves, purporting to be "finders," turned in stolen
bicycles to the police and then claimed the proceeds from their sale. As
already noted, there is no specific requirement in either the old Police Act
or the new Police Services Act that, failing location of the owner, found
property be returned to the finder, subject to the discretion of the Chief in
suspicious cases, and I have recommended such a provision.

112 Rerommendations

RECOMMENDATIONS

HIRING PRACTICES AND PROMOTIONAL PROCESSES

It is recommended that:

1. The Police Services Division of the Ministry of the Solicitor General

consider the suggestions in the Coutts/McGinnis report^and conduct
further research to develop and implement comprehensive personnel
management systems for use by police forces of varying sizes, with
particular regard to the following:

(a) job analysis of the police constable 's role and that of other
ranks and positions to determine the personal attributes,
knowledge, skills and physical/medical standards required
for successful performance;

(b) a performance appraisal system for officer and civilian
employees of police forces;

(c) selection systems for hiring and promotion which can be
consistently applied in forces throughout the province, and
consideration be given to centralization of key aspects of the
processes such as the cognitive ability tests;

(d) exploration of a merit pay or honour award system in order
to reward or recognize job achievement as an alternative to
promotion;

(e) recommended recruiting strategies;

if) a requirement that the Assistant Deputy Minister monitor
and report on a regular basis to the Solicitor General on
the implementation and effectiveness of these recommen-
dations.

McGinnis, James & Coutls, Laurent. Hiring Practices and Promotional Processes, 1989.

Recommendations 113

2. Pending the implementation of the recommendations in paragraph

1, the NRPF and the Board should:

(a) in re-evaluating hiring and promotion processes, take into
account the recommendations of the 1989 report of the Race
Relations and Policing Task Force;

(b) following the Selection Board interview, conduct thorough
background checks on all successful applicants before
offering a position with the Force;

(d) develop a clear policy on the use to be made of "alternate
candidates " in subsequent hirings;

(e) develop a system, with published criteria, for selection of
Force personnel for assignments, such as specialized train-
ing, which provide opportunities for career development;

(f) consider a provision that one member of police promotion
panels be from outside the NRPF;

(g) provide that the Police Association or the Senior Officers
Association be entitled to send an observer who is not a
candidate to any promotional interview involving their
members; and

(h) open positions above the rank of inspector to applicants
from outside police forces in order to enrich the pool of
candidates.

1 14 Recommendations

RECOMMENDATIONS
PROPERTY

It is recommended that:

1. Suitable premises be obtained for the Quartermasters Unit with
particular consideration for:

(a) a central location within the region;

(b) adequate storage for inventory and other Force property;

(d) sufficient trained personnel to allow efficient operation;

2. The position of Quartermaster be that of a senior officer with three
areas of command:

(a) fleet management;

(b) Force supplies (equipment, uniforms, office supplies and
furniture etc.);

Each of these areas should be headed by a supervisor responsible
for the efficient operation of such area and reporting to the
Quartermaster.

3. The Quartermaster's role in the management of property be ex-
panded so that, in addition to disposal, the unit be responsible for
auditing all property within the Force and ensuring that records are
updated with respect to final disposition.

4. That the present policy prohibiting repairs of private vehicles in the
Force garage, and the purchase of traded-in Force vehicles by
Force members continue to be carefully monitored.

Recommendations 115

5. The NRPF and Police Services Board formulate a policy on whether
the Force should provide temporary storage of privately owned fire-
arms. If privately owned firearms are to he accepted for safe-
keeping, appropriate regulations requiring proper controls and
records must be passed.

6. The silver tea service referred to in Chapter 2 (E) (2) of this Part
be returned to the finders if the owner cannot be located, and if the
finders cannot be located or do not want the tea service, that it be
disposed of in accordance with section 134 of the Police Services
Act.

7. The Ministry of the Solicitor General give consideration to an
amendment to the Police Services Act to clarify the discretion of the
Chief of Police in relation to found property by providing that,
where the owner of found property cannot be located, or where it
cannot be determined who owns it, the Chief of Police may, in his
discretion, sell it or return it to the finder.

8. The guidelines governing Special Account expenditures be amended
to provide that no payments of an amount exceeding some reason-
able maximum dollar limit for an expense which would normally be
included in the Force's budget should be paid out of the Special
Account, and that the Special Account should be audited annually
by an outside agency, preferably at the time of the regular Force
audit.

PART II

PREVIOUS INVESTIGATIONS
AND OTHER ALLEGATIONS

1 Previous Investigations

2 Other Allegations

3 The Problem

1 PREVIOUS INVESTIGATIONS

Under one of the terms of reference, I am required to inquire into and re-
port upon "the matters disclosed by the Inquiry into the Drug Raid on the
Landmartc Hotel in 1974 and the propriety, efficiency and completeness of
any other investigations into the activities of the Niagara Regional Police
Force by other police forces or police agencies since the creation of the
NRPF and the action taken to correct identified problems and to implement
recommendations resulting from such Inquiry and investigations."

(A) THE LANDMARK INQUIRY

The Landmark Inquiry was ordered as a result of a drug raid conducted by
members of the NRPF and RCMP at the Landmark Hotel in Fort Erie on
May 11, 1974. During the execution of the raid, 115 people were detained
and searched, including 36 females and nine males who were strip-searched.
Six ounces of marijuana were seized and five people were charged. The
manner in which the raid was conducted resulted in a public outcry, and on
June 7, 1974, His Honour Judge John A. Pringle of The County Court of
the County of Norfolk was appointed to conduct an Inquiry under the Pub-
lic Inquiries Act.

This Commission's investigators prepared a brief about the Land-
mark Inquiry which was distributed to all counsel, and no counsel requested
the calling of oral evidence on the matter.

In his report, released in January 1975, Judge Pringle made the
following major recommendations:

(1) Persons found in a place other than a dwelling house, where there
is no reasonable cause to believe that they are in possession of a
narcotic or anything incidental to possession of a narcotic by them-
selves or others, should not be subject to search when the only basis
for the search is their legitimate presence in such place.

(2) The senior officers responsible for the planning and execution of
large-scale operations of this type should receive instructions so that
they are fully acquainted with the problems and the necessity for
close liaison and communication.

]20 Previous Investigations

(3) That the Lieutenant-Governor in Council recommend to the Govern-
ment of Canada that the Narcotic Control Act be amended in
accordance with the recommendation in paragraph (1), so that
Section 10 (l)(b) be amended to read:

"(b) Detain for the purpose of searching any
person found in such place whom he reasonably
believes has possession of such narcotic."

(4) That Justices of the Peace of the province, who have been cate-
gorized as being sufficiently competent to issue warrants to search,
be equipped with sufficient office equipment to allow them to keep
documents issued by them in the execution of their judicial acts.

(5) That after the search of a room, person, or vehicle has been com-
pleted, the searching officer must restore the room and/cr vehicle to
its original condition and return to a person, any and all goods after
the same have been found to be legitimate articles.

(6) The Intelligence Unit of the Niagara Regional Police Department be
either disbanded or integrated more fully into the existing command
structure.

(7) Sufficient physicians and registered nurses should be sworn in as
peace officers to enable them to conduct searches of females who
are suspected of secreting narcotics or similar substances in their
body orifices.

(8) That the plan of operation by the Brantford Police Force, under the
direction of Inspector Leonard O'Connell, in respect to their oper-
ation against the Graham Bell Hotel, Brantford, on the 23rd of
November, 1973, be studied in depth as to how a raid should be
planned and conducted, as well as the operations conducted by De-
tective Sergeant M.J. Scragg, O.P.P., of the Liquor Laws Enforce-
ment section. Special Services Division.

In a March 17, 1975 report to the Board of Police Commissioners,
Chief Shennan endorsed the recommendations, and the Chief and the Board
proceeded to implement all the operational and administrative recommen-
dations except for Recommendation (7) concerning the swearing in as
special peace officers of sufficient physicians and nurses to conduct

Previous Investigations 121

physical searches. The recommendation was discussed, but apparently got
lost in the process of planning the other changes.

To implement Recommendation (6), the Intelligence Unit was re-
organized, and a number of transfers of personnel were made. In accor-
dance with Recommendation (8), on April 7, 1975, senior members of the
NRPF met with senior officers of the Brantford Police Department to ex-
amine the Graham Bell Hotel operation plan, and in the following months
continued studies of that plan and other raid operation plans of the Ontario
Provincial Police Liquor Laws Enforcement Section.

Recommendations (1), (2) and (5) were general policy recommen-
dations as to appropriate standards of police conduct in certain situations.
As such, it is difficult to ascertain whether these standards have been
applied and maintained. In September, 1975 and May, 1976 major training
exercises, including mock raids, were carried out in conjunction with the
Niagara detachment of the RCMP. In 1982 the Force undertook an in-depth
study of its search policy, and a completely revised 51 -page training manual
Training-Search Warrants was developed and distributed, and is still in use.

Recommendations (3) and (4) were, of course, beyond the juris-
diction of the NRPF. In relation to N°. (4), Justices of the Peace are now
required to file documents supporting the issue of a search warrant in the
court records. In relation to N°. (3), the Narcotic Control Act (now section
11) still does not require the officer searching a person to reasonably
believe the person is in possession of a narcotic. However, in the absence
of such a provision, the Ontario courts have imposed their own." Judge
Pringle's recommendation that such an amendment be recommended to the
government of Canada by the government of Ontario still seems to be an
eminently reasonable one.

My conclusion is that these Landmark recommendations which were
within the jurisdiction of the NRPF, have been implemented with the
exception of N°. (7). While there is no indication that lack of im-
plementation of this adversely affected Force operations, it is recommended
that the Force consider the recommendation again and report to the Board
on its feasibility.

R. V. Dehnt (1986) 30 C.C.C. (3(1) 12 - Ont. C.A.

122 Pre''ious Investigations

In order to ensure that the lessons learned in relation to narcotics
raids and similar search and seizure operations are not forgotten, the Force
should provide, by some means such as mock raids, training exercises or
seminars, periodic reminders to involved police personnel of the principles
to be employed in the execution of such operations.

Previous Investigations 123

(B) THE 1984 OPC INVESTIGATION

As mentioned at the outset of this report, throughout the summer and
autumn of 1983 the NRPF was the subject of a great deal of adverse pub-
licity in the media. The Standard carried a number of stories critical of the
NRPF; local MP? Mel Swart raised questions about the Force in the
legislature; Peter Kormos (a local lawyer, now Mr. Swart's successor in the
legislature) expressed concerns about the Force in the press; and Mark
DeMarco's many complaints were extensively quoted. CBC reporter Gerry
McAuliffe aired a series of radio broadcasts alleging improper Force
practices. Under considerable pressure. Solicitor General George Taylor
announced that the OPC would investigate the allegations.

Robert Russell and Irv Alexander, both experienced investigators
with more than 30 years with the Metropolitan Toronto Police Force before
joining the OPC as advisors, were assigned to the investigation. They were
given no terms of reference, and established their own, as follows:

"1. Has the Board fulfilled the requirements of its Bylaw N°. 34/78 —
the Citizen's Complaint Bylaw? In particular, has the Board
complied respecting requests for Hearings and/or Reviews of In-
vestigations conducted by the Force?

2. Has the Citizen's Complaint Procedure, as described in the bylaw,
been followed by the Force. Have investigations been thorough and
unbiased? Have all citizen complainants had free access to register
complaints and have officers who were responsible for breaches of
discipline or criminal misconduct been appropriately dealt with?

3. Is the supervision of the police personnel such that adequate dis-
cipline is exercised across the Force?

4. Has there been indiscretion, professional misconduct, or criminal
acts by members of the Force in connection with Mr. Mark Tiffany
DeMarco?

5. To pursue any matter that comes to the attention of the Commission
during its investigation of the foregoing that suggests misconduct or
criminal activity by any member of the police force."

These objectives were approved by the Chairman of the OPC and
by the Solicitor General. The fifth objective was an extremely broad one —

124 Previous Investigations

it apparently was not realized what a morass of rumours and allegations
would be encountered. To thoroughly carry out that mandate, which would
include criminal investigations, would require a staff of investigators and
back-up personnel.

Russell and Alexander themselves carried out the investigation,
which commenced on October 18, 1983. Chief Harris assigned then-
Superintendent Shoveller to act as liaison officer with them. They found all
Force personnel to be co-operative.

Their report was forwarded to the Solicitor General on May 7, 1984.
It was divided into eight parts.

(1) The DeMarco allegations

Part I dealt with the complaints of Mark DeMarco, referred to earlier in
relation to gun allegations." Russell and Alexander spent 22 hours with
DeMarco taping and documenting his 56 complaints, consisting of alle-
gations of incompetence, negligence and general misconduct, including a
conspiracy by Force members to defame him. Their report evaluates the
complaints according to standard citizen vs. police complaint procedures.
They reported that nine of the complaints were "unfounded"; 14 were sit-
uations where the incident did occur, but the officer involved acted
properly, and should be "exonerated"; 26 were "not substantiated" in that
there was insufficient evidence to prove or disprove the allegations; two
were "substantiated in part"; three were "substantiated"; two were not with-
in the mandate of the investigation.

Of the two complaints that were substantiated in part, the first was
that DeMarco had obtained vehicle registration checks from officer P., who
had charged a five-dollar credit on future purchases from DeMarco' s store
for each check. DeMarco produced only one document showing a vehicle
registration check which indicated it had been received in the NRPF records
section between January 1979 and March 1981. Officer P. retired from the
Force in 1977. No proof of any credit was found. In the second "sub-
stantiated in part" complaint, DeMarco complained that unidentified off-
icers, during the execution of a search warrant at his residence, had taken
away a device for removing broken keys from locks, and had not returned

See The DeMarco gun, p. 70.

Previous Investigations 125

it. Investigation revealed that the police had taken such a device, but iden-
tified it as a device for picking locks. Since this identification was disputed,
the complaint was characterized as "Substantiated in part."

The first of the "substantiated" complaints was that the police had
failed to satisfactorily investigate an occurrence when DeMarco was at-
tacked by three men, one wielding a machete, at 1 o'clock one morning as
he was returning to his residence. He managed to get inside, and phoned the
police, who located the assailants' vehicle and arrested and charged the two
occupants.

DeMarco' s complaint was that the police had failed to attempt to
locate another car, which had been present at the scene of the assault, of
which he gave them a description, and in which he had recognized a male,
and a female who was the wife of one of his assailants. Russell and
Alexander concluded that the police were negligent in ignoring DeMarco' s
report concerning the other car.

The second "substantiated" complaint was that, following a phone
call by Mr. DeMarco to the police advising that a person was attempting to
sell him a gun which the police identified as stolen, two officers arrived at
his store, arrested the person, and left without then, or later, thanking him
for his assistance or advising him of the outcome. Russell and Alexander
concluded that "good police practices and common courtesy should have
dictated that some officer return and advise and consult with Mr. DeMarco."

The third "substantiated" complaint was that, in executing a search
of DeMarco's residence, two handguns were seized by the police on the
ground that they were unregistered. It turned out that one was registered to
DeMarco, and application for registration of the other was on file in the
police offices. Both were returned to DeMarco eight days later. Russell and
Alexander concluded that, although the error was soon rectified, the officer
was "overzealous" in making the seizure.

Of the two complaints which were considered beyond the OPC
jurisdiction, one was that an officer had made false statements to the media
about Mr. DeMarco, but the matter was the subject of a civil suit, and the
other was that a public official (not a police ofHcer) had been intoxicated
during a trial.

The 49 complaints that were classified as unfounded, not substant-
iated or "exonerated" had even less substance, but it took Russell and

126 Previous Investigations

Alexander three months and 90 interviews to investigate and dispose of
them.

(2) The Swart allegations

Russell and Alexander met with Mel Swart on two occasions to obtain de-
tails of the allegations concerning the NRPF which he had made in the leg-
islature and the media. From these interviews, they identified nine com-
plaints which they investigated.

The complaints were diverse, ranging from a landlord's complaint
that the police had damaged a door knob when breaking into the apartment
of a deceased accident victim in order to obtain the address of the de-
ceased's next of kin, to charges of assault by the police upon a woman who
had protested about the lights of a police cruiser shining in her windows
while she was having a Christmas party.

The OPC investigators interviewed all complainants and witnesses,
and prepared for the Solicitor General a full report and conclusion regarding
each incident. Their overall conclusion was that "there appears to be
nothing in the incidents brought forward by Mr. Mel Swart that provide evi-
dence of a pattern of misconduct or even isolated incidents of misconduct
by members of the Niagara Regional Police Force." They did not, however,
go back to Mr. Swart to advise him of the results of their investigations of
his allegations.

(3) Allegations raised by the Standard

On February 5, 1983, Standard rcpoTtcr, Kevin McMahon, published a leng-
thy article alleging that NRPF officers habitually ignored "the civil rights
of hundreds, perhaps thousands, of high school and university students,
young people who work and, increasingly, the young employed." During the
remainder of the year, a number of other articles criticizing the NRPF
appeared in the Standard.

The OPC investigators interviewed both Mr. McMahon and the
Standard editor in order to learn the foundation for these allegations. Their
report states that Mr. McMahon told them that the article was based on
conversations spread over a few years about youths being stopped by the
police, but that he was never given specifics. He had not checked with the

Previous Investigations 127

NRPF to verify the information because he did not believe they would
co-operate, but he gave the investigators the names of eight people whom
he had talked to, and indicated he had talked to a number of lawyers. The
investigators interviewed the eight persons named, and their detailed report
of these interviews did not find the allegations to be substantiated. They
also interviewed a dozen prominent local criminal lawyers, some of whom
had been quoted in McMahon's article. The investigators found that the
lawyers did not agree with the article's thesis in most respects. An assistant
Crown Attorney, who had been extensively quoted in the article, stated that
generally the quotes were accurate, but that some had been taken out of
context and unfairly presented.

In their report, Russell and Alexander stated: "The investigation, as
it relates to the allegations made in the St. Catharines Standard has failed
to uncover any acts that could be considered 'police harassment.' Not only
have the writers been unable to substantiate any of the concerns expressed,
but no new allegations have come to their attention from other sources."

The report concludes by observing that there was not "very exten-
sive research into the stories used as a basis for this series of articles and
editorials", due perhaps to an impression that the police would not co-
operate. It urges the NRPF to establish the position of "Media Relations
Officer" to repair the lines of communication between the Force and the
media.^

(4) The DeMarco gun

The general circumstances surrounding this gun, a .25 calibre Colt, have
already been set out in the Property Section.'* DeMarco had asked Chief
James Gayder to check the title of a gun he had purchased. After checking
that it had not been reported stolen. Chief Gayder had returned it to
DeMarco without ensuring that DeMarco had registered it, and DeMarco
placed it in his safe. In January, 1982, DeMarco's store was searched by the
NRPF, and a number of weapons charges were laid against him. The safe
was not opened, and the Colt was not discovered, but it appears that the
January, 1982 incident was the genesis of many of DeMarco's complaints

' See Recommendation 5, p. 321.
* See The DeMarco gun, p. 70.

128 Previous Investigations

against the Force. In May, 1983, DeMarco went to Gayder's house and
secretly tape recorded Gayder's affirmative answer to a question as to
whether he had checked out the Colt for DeMarco. He took the recording
to Gerry McAuliffe; McAuliffe interviewed Gayder about this and other
guns, and Gayder's guns formed the subject matter of some of McAuliffe' s
subsequent broadcasts. Mel Swart also brought up the DeMarco matter in
the legislature in October and November, 1983.

As a result of these broadcasts. Chief Harris assigned Sergeant
Thomas Teggin to investigate, and Teggin interviewed DeMarco. DeMarco
admitted to having the gun in his possession, and Teggin charged him with
possession of an unregistered restricted weapon. The charge was later with-
drawn by the Crown Attorney, but the incident increased DeMarco's resent-
ment toward the police in general and Gayder in particular. Chief Harris
concluded there were insufficient grounds to charge Gayder, but in the fall
of 1983 Mel Swart raised the matter in the legislature.

Russell and Alexander interviewed all involved witnesses, in-
cluding DeMarco, McAuliffe and the youth who sold the gun to DeMarco,
and checked CPIC records, all correspondence and reports, and the Crown
brief They then reviewed the whole matter with an outside Crown Attor-
ney, who advised them that there was insufficient evidence to charge
Gayder.

The draft OPC report originally stated: "In our view, James Gayder
exhibited very poor judgment, and to say the least, was indiscreet in his
handling of the .25 pistol issue and his association with DeMarco." Follow-
ing this first draft, it appears that a lawyer with the Solicitor General's
department suggested a rewording of their conclusion. The revised version,
as filed with the Solicitor General, said that Gayder had "exhibited ques-
tionable judgement" in not inquiring into the background of the firearm,
which any experienced police officer would be expected to do, but stated:
"We do not wish to imply, by the above, that Chief Gayder is guilty of an
improper motive or of wilful disregard of duty in this regard. We do
suggest that better judgment could have been shown." Both versions
contained the same concluding sentence: "No evidence of criminal activity
was uncovered relative to Gayder's involvement with Mark DeMarco."

Previous Investigations 129

(5) Citizens' complaint process

Russell and Alexander examined the NRPF's process for handling citizens'
complaints, and looked into the treatment accorded each of the 2,332 com-
plaints received by the Force in the 13 years of its existence up to that
time. They concluded that the complaints unit was "fulfilling its re-
sponsibilities in a thorough and responsive manner." They did, however,
recommend certain improvements reflecting problems common to other for-
ces as well. The whole process relating to citizen's complaints is now
covered by the Police Services Act.

(6) Citizens' complaints at the Board level

The OPC investigators found that there was a problem in the then-existing
process in that it allowed complainants to make statements detrimental to
police officers without the officers having a right to be present to answer
the allegations. The process was in the course of being revised at the time,
and the investigators approved of the proposed revisions. The Police Ser-
vices Act now covers the process.

(7) Discipline and supervision

In this Part, the investigators pointed out some weaknesses in supervision
and discipline in the NRPF, and noted in particular that the quality of
general occurrence reports (GORs) was often inferior.

(8) Index of complainants and conclusions

This Part was simply an index.

Not included in the report were two matters which caused Russell
and Alexander concern, but which they mentioned in their Inquiry evidence.
The first was that "the Force wasn't unified as it should be and there was
squabbling between different stations and there were rivalries that weren't
healthy rivalries."^ They noted in their notes that this was their "most

Inquiry transcript, vol. 207 (Aug. 13, 1990): 171.

]30 Previous Investigations

important concern." They did not consider that this was within their man-
date, but discussed the problem with Chief Gayder, and understood that he
was trying to do something about it.

The second matter was that, although they received no specific com-
plaints about Staff Sergeant Allan Marvin, they heard rumours that he was
not "straight" and "could not be trusted." There was concern that he was
"cosy with the Chief in that he was member of a group, which included
the Chief, who regularly played cards together. They did not investigate the
matter, but reported it to Gayder.^

Russell and Alexander submitted their report to the Chairman of the
OPC on May 7,19S4. The same day, the Chairman forwarded the report
plus a short executive summary of it to the Solicitor General.

Russell and Alexander recommended that the full report be made
public to alleviate the public concerns that gave rise to the investigation. In-
stead, however, the Chairman prepared a 19-page summary, and, apparently
concerned about the sensitive nature of parts of the report which named
names, recommended that the full report remain confidential. On July 30,
1984, the Solicitor General issued a press release about the investigation
with the 19-page summary attached.

The full report was not released, resulting in many complaints from
the media. The Standard characterized the summary as a "whitewash." Mel
Swart wrote to the Solicitor General on August 7, 1974, strongly criticizing
the summary, and calling for release of the full report, with sensitive areas
blacked out if necessary. The Solicitor General refused. Other politicians,
particularly some in the Niagara Region, were very critical of this decision.

(9) Gayder's guns

Because of pressure to file a report on their investigation of the problems
in the NRPF, and because it was not part of their original mandate, Russell
and Alexander filed the first eight Parts before proceeding to investigate
rumours about Chief Gayder's gun collection. At an early stage, they had
received, anonymously in a brown envelope, a copy of Gayder's gun regis-
trations, but the matter was not given a high priority. In their May 7, 1984

See p. 181.

Previous Investigations 131

memo accompanying their report, they advised the Solicitor General that
Gayder's gun collection was under review, and they would report further
when the review was completed.

On July 3 and 5, 1984, McAuliffe did broadcasts about Gayder's
gun collection, and referred specifically to the Welland guns, intimating that
Gayder had obtained them improperly. On July 6, 1984, Russell and
Alexander interviewed Gayder about his guns, and the same day inter-
viewed Walsh about his delivery of the Welland guns to Gayder. They then
contacted those persons from whom Gayder said he had obtained guns,
checked all the registrations with Staff Sergeant Knowles of the RCMP
Firearms Registration Branch in Ottawa, and provided a complete list of the
Gayder registrations to the RCMP Criminal Intelligence Service in an
attempt to obtain histories of the guns through their American records. The
RCMP searches did not turn up any additional information.

Russell and Alexander completed their report, which they headed:
"Part IX — A supplementary report respecting allegations by Mr. Gerry
McAuliffe of the CBC concerning the legality of a collection of handguns
in the possession of Chief of Police James Gayder", and forwarded it to the
Solicitor General in September, 1984. No press release or summary of the
supplementary report was issued.

CONCLUSIONS

Under my terms of reference, I must report on the efficiency and com-
pleteness of the OPC investigation, as well as the action taken to correct
identified problems, the manner in which the investigation was reported to
the public, and any misconduct on the part of members of the NRPF re-
vealed by the investigation.

Russell and Alexander faced a monumental task in sorting through
and investigating the myriad complaints, most of little substance, which
they received. I find no fault with their investigation or conclusions in
relation to these complaints, and can only admire their patience and re-
straint.

The primary problem faced by Russell and Alexander in their inves-
tigation was the vagueness of their mandate. The investigation was in-
itiated as a result of political pressure created mainly by the articles in the
Standard, McAuliffe's broadcasts, and Mel Swart's questions in the legis-

132 Previous Investigations

lature. Unfortunately, their terms of reference were not clearly delineated,
and appear to have been what Commission counsel paraphrased as "check
what all this fuss is about." This left the investigators to compose their own
terms of reference as to what NRPF problems they understood they should
look into.

It must be understood that the OPC was not a police force, and
Russell and Alexander, in spite of their extensive police investigatory
experience, were not at that time police officers and did not have the
authority or mandate to conduct a criminal investigation. They were class-
ified as "advisors" to the OPC whose normal role was to advise and assist
Ontario police forces in administrative and procedural matters.

Thus, from the very beginning, the investigators did not have the
powers necessary to respond to some of the more serious public concerns.

A further problem was the paternalistic manner in which the inves-
tigators' conclusions contained in the first eight Parts of their report were
made public. All that was revealed to the public was the 19-page summary
which, while reasonably accurate as far as it went, did not clearly explain
the research behind the investigators' conclusions. Public confidence in the
Force had been shaken by the allegations raised in the press, the radio and
the legislature, and it was necessary to respond to those allegations in a
manner which would restore that confidence. Instead, the persons who made
the allegations were given no opportunity to examine the reasons why their
allegations were dismissed, and their expressed dissatisfaction with this
counteracted efforts to restore public confidence and undermined the utility
of the investigation. It can be understood that it would be unfair to publish
an investigatory report, not subject to the safeguards of the rules of
evidence, which might list names and personal details about the complain-
ants and the persons who are the objects of the complaints. However, use
could be made of pseudonyms to allow the parties to remain anonymous,
while still providing sufficient details to support the conclusions and the
thoroughness of the investigation.

Similarly, the failure of the investigators to get back to the persons
putting forward the allegations, in order to share the results of their
investigation and give an explanation for their conclusions, contributed to
those persons' conceptions that the report was a "whitewash." Even a partial
report, not given to the public generally, but containing substantial enough
details to convince the complainants that their allegations had been properly

Previous Investigations 133

addressed, might have avoided the adverse reaction on their part, with atten-
dant harmful publicity, that the sparse 19-page summary engendered.

Russell and Alexander, however, understandably considered that
they had no right to reveal details of their investigation and conclusions
other than to the Solicitor General, and left it up to the Ministry to decide
what should be published.

Russell and Alexander freely admitted that the conclusion in their
report on Gayder and the DeMarco gun had been amended, at the sug-
gestion of a lawyer in the Solicitor General's Ministry, from an observation
that Gayder had "exhibited very poor judgment and, to say the least, was
indiscreet" to "exhibited questionable judgment" and the latter was what
was quoted in the minister's public statement. The investigators testified
that they went along with the revision because they saw no significant dif-
ference in the two versions. Had the whole report been made public, the
difference might not have been significant, since the criticism of Gayder
would be seen in its proper context, but to those who raised the issue, the
rather subdued phrase "questionable judgment" in the summarized version
of the report apparently increased concerns about the thoroughness of the
entire investigation.

The OPC investigation of Gayder's guns was not part of the original
investigation and report. Presumably, Russell and Alexander considered the
matter should be looked into because of the rumours they heard as they did
their other investigations, and because of McAuliffe's broadcasts, but it
would not appear that they felt there was much substance to the rumours.
Their investigation of the guns was the subject of much criticism by counsel
for the Board and for VanderMeer.

As already noted, this was not a criminal investigation, and they did
not have the mandate or back-up personnel to make it so. One only needs
to look at the numerous volumes of interviews and documentation produced
by the Commission's team of seven investigators as a result of months of
investigation, aided by their police powers and all necessary secretarial
assistance, to realize what an impossible task faced the two OPC "advisors"
limited as they were by lack of staff and by pressure to complete their
report. They accordingly focused their investigation on the copies of
registrations that had been passed on to them anonymously in the brown
envelope, and which were also the focus of McAuliffe's broadcasts about
Gayder's guns.

134 Previous Investigations

Their failure to locate Alexander Ross^ was highlighted by those
criticizing their investigation, suggesting that their report did not conclude
that Gayder was guilty of misconduct because their investigation was
careless and did not go deep enough. There were intimations that the
investigators did not really want to find evidence of Gayder's misconduct
and the Ross matter was cited as an example.

One of the registrations states that Gayder received a gun from
Ross, whose address at the time (1969) was shown as 165 Ontario Street,
St. Catharines. Ross is a high school teacher who has taught in the same
school in St. Catharines for the past 25 years, but in 1984 lived in Fenwick,
a small village about 15 miles from St. Catharines. He was listed in the
telephone directory, for that area. However, the OPC investigators failed to
find him, and so drew no conclusions as to the propriety of Gayder's ac-
quisition of the Ross gun, which, on the basis of the Inquiry evidence,
raised many questions.

Their evidence was that they checked the city directory and found
that Ross did not live at 165 Ontario Street. They checked the St. Cath-
arines telephone directory and found no listing. They then checked through
CPIC for his address on his driver's licence, but at that time Ross did not
have a valid licence, so was not listed. Alexander believes he also checked
the telephone books for the outlying areas, but if he did, he did not search
far enough afield.

As "advisors" to the OPC, Russell and Alexander did not have the
manpower or other facilities to conduct extensive investigations, and turned
to the NRPF for assistance in finding Ross. On July 6, 1984 they asked De-
puty Chief Walsh to have someone from the Force try to locate Ross, and
on July 13, Walsh telephoned Russell, whose notes record the message as:
"Investigator has been unable to learn anything about this person. No one
by that name at that address. Negative by name and address in City Di-
rectory." Relying on this information, Russell and Alexander took no fur-
ther steps to locate Ross.

I conclude that, in view of all the circumstances, Russell and Alex-
ander cannot be severely criticized for their failure to find Ross. The CPIC,
the NRPF, and for several months the IIT, with all its resources, similarly
were unable to locate him. I certainly do not agree with Sergeant

^ The Ross guns, p. 48.

Previous Investigations 135

VanderMeer's charge that, in "finding no serious wrongdoing", the report
was a "deceit and coverup."

A full criminal investigation would have delved more deeply into
the background of the guns registered to Gayder, but Russell and Alexander
were not conducting such an investigation, and as noted, had neither the
mandate nor the facilities, nor, for all practical purposes, the time, to do so.
It would certainly have been in order for them to conclude in their Part IX
report what Alexander testified was his personal view, that is, that the
practice of collecting guns turned in to the Force was not proper, but that
their investigation had revealed no wrongdoing that could support Criminal
Code or Police Act charges. Had even that much of a conclusion been pub-
lished, it would have helped to dispel the rumours of wrongdoing, would
have served as a warning of the dangers and impropriety of police officers
collecting guns, and would have let the public know that something was
being done about the matter.

Counsel for the OPC submitted that "the report resulted from an in-
vestigation which was regulatory in nature and was never intended to be a
public investigation", that the full report was distributed to Chief Gayder
and the Board of Police Commissioners, and that accordingly, the decision
by the Ministry of the Solicitor General to publish only a summary was
reasonable under the circumstances. Nevertheless, such an investigation,
involving numerous interviews of not only police personnel but also mem-
bers of the public, and following on the heels of widely publicized alle-
gations of improprieties, soon becomes one of public concern, and, failing
publication of a full report, suspicions of a cover-up are bound to result.
However, I agree with the submission that in the instant case, the inves-
tigators had reason to believe that they had no prerogative to return to the
source of the allegations to provide personal "feedback."

I shall be recommending that the OPC's successor, the Ontario
Civilian Commission on Police Services, should not be used for an
investigation, such as the one just examined, which may evolve into a
quasi-criminal investigation. If, as was suggested, the NRPF investigation
was assigned to the OPC as a method of relieving the political pressure at
the time, it was very unfair to the OPC. Consideration should be given to
assigning such investigations to an independent unit, separate from the
Special Investigation Unit, specifically created to investigate allegations of
criminal conduct other than shootings, on the part of members of Ontario

136 Previous Investigations

police forces.^ At the conclusion of their investigation, the investigators
should contact those who brought forward the allegations and provide them
with some "feedback" or debriefing so that the results are understood.

Following delivery of a report of an investigation into publicized
allegations against the police, it is of the utmost importance that the
findings be immediately made public in a meaningful way and as fully as
is practical. However, it must be recognized that it is not possible to report
every investigation to the public in detail. In many cases, to do so would
prejudice further investigations or slander those who had been investigated
but found blameless. Unfortunately, when an allegation of wrongdoing is
made public, regardless of how thoroughly it has been disproved, some
suspicions always seem to survive.

See pp. 189-190 and Recommendation 3, p. 191.

Previous Investigations 137

Staff Sergeant Ronald Sandelli is a member of the Metropolitan Toronto
Police Department assigned to the Special Enforcement Unit (SEU). The
SEU is a joint forces operation specializing in investigations of drug
operations and organized crime. In early December, 1984, on the invitation
of his cousin, Sergeant Ronald Peressotti of the NRPF, Sandelli attended the
NRPF Christmas party. Peressotti introduced him to Sergeant Cornelis (Cor)
VanderMeer and to Stephen Sherriff, a former assistant Crown Attorney,
who at that time was the Senior Discipline Counsel for the Law Society of
Upper Canada. Sherriff and VanderMeer had become friends as a result of
VanderMeer's investigation, jointly with Sherriff, of several Niagara area
lawyers, particularly G.H.^ During the course of the evening, VanderMeer
and Peressotti mentioned to Sandelli their serious concerns about corruption
in the NRPF, and they arranged to meet at a later date to discuss the matter.

On December 27, 1984, Sandelli and his SEU partner, Detective
Sergeant Lyle MacCharles of the OPP, met Peressotti, VanderMeer and
Sherriff at Sherriff s home. Possible NRPF corruption was discussed, and
the names of G.H., Walsh, Typer and C.'° were mentioned. A second
meeting was arranged for January 3, 1985, again at Sherriff s home.
VanderMeer brought Constable William Gill of the NRPF to relate his
concerns about the Force. According to a memo prepared by Sandelli, Gill
told those present that "corruption has spread throughout the Police Force
like cancer." Later, at the Inquiry, Gill testified that his allegations were
simply "rumour and street talk", but there was a conflict of evidence
amongst those present at the meeting as to whether he at that time presented
the allegations as gossip or as first-hand information. Gill told the others at
the meeting that he had been warned he was wasting his time investigating
"bikers" because they had sources of information within the Force. He also
spoke of allegations of senior officers playing high-stakes poker with
members of the criminal element who had connections with disbarred law-
yer G.H., and that he had seen G.H. visiting the offices of senior NRPF
administration officers.

At the Inquiry, he stated that he later learned that the person he had
seen was Larry Quattrini, the Board Administrator, who looked like G.H.

See p. 183.
" See p. 179.

138 Previous Investigations

He testified: "I may have said a lot that evening. I had a few drinks in me
... my phraseology may have been stronger than it should have been."''

The various allegations brought forward at this meeting were treated
seriously by the SEU officers. On January 9, they prepared a 10-page
summary which they delivered to their superiors with a recommendation
that the matter be investigated. The memorandum points out that the NRPF
officers involved gave the information in strict confidence and "adamantly
refused" to discuss the situation with other officials for fear information
would leak back to their department and place their careers in jeopardy.

The SEU refused to become involved, since investigation of other
forces was outside their mandate. Sherriff, Sandelli and MacCharles then
met with Deputy Commissioner Lidstone of the OPP, and Lidstone agreed
that the OPP would investigate.

On January 14, 1985, Inspector McMaster and Detective Sergeant
Joyce of the OPP were assigned to conduct the investigation. The in-
vestigation was code-named "Project Vino" and was established as a
"secret" investigation because nothing was to be done which would identify
the NRPF informants. The same day, Sandelli and MacCharles met Mc-
Master and Joyce and briefed them on the allegations. The importance of
maintaining the anonymity of VanderMeer and Peressotti was emphasized.
McMaster and Joyce then met with Sherriff and he provided a copy of his
memo concerning G.H. and of his letter to Acting Deputy Chief Leigh reg-
istering his concern over the "removal" of VanderMeer from the G.H. in-
vestigation.'^ Sherriff told them everything he knew or had heard regard-
ing the matters referred to in the reports and memos.

McMaster and Joyce then began an "intelligence sweep" of the
OPP's intelligence files, searching for any allegations of wrongdoing by
NRPF personnel. On January 17 they met VanderMeer and Peressotti to
discuss their information. One of VanderMeer's main concerns was Walsh's
relationship with G.H., but he also referred to Typer's relationship with
C.,'^ Gayder's guns,"' Marvin and the Greenfield gun and Gayder's inter-

" Inquiry transcript, vol. 136 (Dec. 12, 1989): 163.
'^ See p. 183.
" See p. 175 ff.
" See p. 40.

Previous Investigations 139

ference with a drug investigation involving his son.'^ These discussions
were subject to a guarantee of anonymity and confidentiahty for Vander-
Meer and Peressotti. Joyce and McMaster were very concerned that this
would seriously restrict their investigation. However, they realized that if
they did not accept those terms, they would receive no information and so
decided to proceed as a secret investigation.

These restrictions did seriously limit the methods that could be em-
ployed in the investigation. If they came openly to the Niagara area and
questioned police officers, Chief Gayder would soon be on the phone to the
OPP Commissioner demanding to know what they were doing in his terri-
tory, and this would inevitably lead to the identification of VanderMeer and
Peressotti. Nor could the investigators avail themselves of the resources of
the NRPF, including examination of documents etcetera, for the same rea-
son.

On January 18, 1985, Joyce and McMaster met with OPP Inspector
Paul Wilhelm, who had filed a report on June 11, 1981 concerning rumours
of wrongdoing in the NRPF. They asked Wilhelm to go back to his sources
and update his report without divulging their investigation, which Wilhelm
did. His sources were Melinko, Madronic (an NRPF constable) and Vander-
Meer. Wilhelm filed a second report on February 7.

VanderMeer and Peressotti kept in contact with the OPP investi-
gators throughout the investigation, relaying information to Joyce and being
informed by Joyce of the progress of the investigation. They introduced
Onich to Joyce, and Onich provided information regarding a home-made
handgun turned in to Feor, the firearms officer, which Onich believed had
been taken by Gayder."' Onich also delivered to Joyce 28 GORs concern-
ing firearms, some of which he suggested might show guns which had been
taken by Gayder. The OPP checked all these GORs against Gayder' s gun
registrations and found no matches.

On February 1 1, 1985 the DeMarco/ McAuliffe wiretap allegations
were assigned to McMaster and Joyce. This was not a secret investigation,
so they could operate openly in that regard, but were still restricted in re-
lation to the other matters.

See p. 185.
Sec p. 73.

140 Previous Investigations

To further their investigations, Joyce and McMaster obtained judicial
wiretap authorizations to intercept the telephone communications of G.H.,
C. and some related persons. None of the interceptions produced evidence
supporting allegations of corruption in the NRPF. At one point, Sherriff
telephoned G.H. in an attempt to spark some incriminating communication
from G.H. to Walsh, but nothing happened. When the authorization expired,
there was no evidence upon which a renewal application could be based,
and that line of investigation was abandoned.

In the summer of 1985, VanderMeer and Peressotti brought Peres-
sotti's partner Constable Gino Arcaro into the picture. Arcaro had in-
vestigated the death threat C. had allegedly made against VanderMeer.'^
On completion of his investigation, and after consultation with a Crown
Attorney, Arcaro had cleared the allegation as unfounded. VanderMeer was
unhappy with this, and on August 12, 1985, he, Arcaro, Peressotti, Onich
and Sherriff met with Joyce. The death threat was discussed, and Joyce
informed them that the OPP Vino investigation was likely to wind down in
the near future. VanderMeer stated that this would not be the end of the
matter.

Meanwhile, an OPP investigation into alleged unauthorized NRPF
wiretaps continued. In September 1985 McAuliffe's radio programs reported
alleged additional illegal wiretaps, and the investigation was expanded.'^
In October, 1985, Peter Moon wrote a long article in the Globe and Mail
based on allegations of NRPF misconduct relayed to him by VanderMeer.

On January 20, 1986, Onich arranged a meeting with Joyce, and
told him that VanderMeer was not satisfied with the results of the OPP
investigation, particularly the fact that they would be laying no charges, and
had told Onich he intended to embark on "Plan B". Onich was not sure
what Plan B was, but told Joyce he believed it was a plan to get a public
inquiry into the NRPF.

Sherriff told the Inquiry that he continued to have concerns about
the NRPF, since "there a big difference between whether or not there's
internal problems in a Police Force and whether or not someone can

'^ See p. 161.

" See The OPP Wiretap Investigation, p. 145.

Previous Investigations 141

prosecute it." '^ Mrs. Taylor was elected chairman of the Police Commis-
sion on January 8, 1987, and the same evening met with VanderMeer and
Sherriff and she was advised of their concerns, and of the existence of Pro-
ject Vino. On January 15, Mrs. Taylor met with the Solicitor General and
officially requested a copy of the Project Vino report. On January 16 she
wrote him repeating her request.

On February 9, 1987, Shoveller and Taylor met the Solicitor Gen-
eral and again requested a copy of the Vino report, and on February 24 the
Police Board wrote to the Solicitor General reiterating the request. Up to
that time, no report had been prepared, but in accordance with the Board's
request. Inspector McMaster prepared a report and on March 16, 1987, it
was personally delivered by McMaster to Shoveller, subject to a "third party
notice" that it was not for publication. Shoveller read the report and dis-
cussed it with McMaster. The next day he turned over a copy of the report
to the IIT.

Having noted a reference in the report to Gayder's guns. Shoveller
requested more information, and on March 27, 1987, McMaster provided
him with a 12-page memorandum prepared by Joyce, together with a copy
of the Gayder gun registrations. Shoveller passed these on to the IIT.

On March 26, 1987, Newburgh and Rattray interviewed Inspector
Wilhelm whose memorandum of June 11, 1981, outlined rumours of wrong-
doing within the NRPF. Wilhelm testified that they were only rumours, and
although he had not investigated them, had felt he should make a note of
them. He stated he could not recall any specific conversation, but Vander-
Meer and Melinko were two of the people he had talked to. Rattray testified
that he and Newburgh spent half a day with Wilhelm, going over the Vino
report "paragraph by paragraph and asked him what direct knowledge they

had about this, who their informants were we wanted to find out

whether this was fact, rumour or fiction." Asked what conclusion they came
to, Rattray testified: "I didn't put too much stock in what was in the report.
I think Staff Sergeant Newburgh and myself on the way home considered
it bullshit — brought that report back and, to the best of my knowledge, we
filed it in a book and forgot about it."

'o^

The Board continued to press for other OPP reports arising out of
their investigation, and on April 30, 1987, wrote the Solicitor General

'" Inquiry transcript, vol. 186 (May 29, 1990): 154.

J42 Previous Investigations

renewing its request. On August 30, 1987, Deputy Commissioner Lidstone
of the OPP wrote Shoveller authorizing him to disclose the wiretap
investigation reports to the Board, but no mention was made of the Vino
Report. However, as it turned out, only one Board member, Mrs. Taylor,
requested a copy of the wiretap reports.

On October 20, 1988, the Toronto ^/ar published a front-page article
about corruption in the NRPF, obviously based on the Project Vino Report,
a copy of which must have been provided by an informant. Most of the
more sensational Vino allegations were quoted in the article, together with
additional information that could only have been supplied by someone with
intimate connections to the NRPF, and, according to Chief Shoveller, that
additional information would be known only to those who had assisted in
the OPP investigation. All witnesses who could have knowledge of the leak
were asked under oath if they had any information about it. All denied it.

CONCLUSIONS

As with the other investigations, I am required to comment on the pro-
priety, efficiency and completeness of the OPP investigation, and the
appropriateness of action taken to correct identified problems.

Given the restrictions placed on them by their agreement not to do
anything that could identify their informants, I agree with the opinion
expressed by Chief Shoveller at the Inquiry that he could not see what more
the OPP could have done. It was not open to the investigators to openly
interview police witnesses or to obtain access to Force documents. They
used secret wiretaps, but once the authorizations expired without revealing
evidence to support the allegations, they could not obtain renewals. The
informants did not produce documentary or other demonstrable evidence to
support their allegations. The investigators were thus unable to explore
some areas of their investigation as fully as they would have liked, but their
investigation accomplished everything that was possible given the limi-
tations they faced.

There was only one allegation for which the OPP investigators
found substantiation, and that was Typer's actions in improperly obtaining
information for C. The NRPF responded properly with Police Act charges
against Typer.

Previous Investigations 143

Chief Shoveller responded properly to the balance of the Vino
Report by turning the report over to the IIT for any further investigation it
considered necessary. This was appropriate, particularly since, (although it
was presumably unknown to Shoveller), VanderMeer and Onich, two mem-
bers of the IIT, were two of the three original informants to the OPP.
Further, a substantial part of the Vino report referred to the Wilhelm
information, and Wilhelm testified that his principal sources were Vander-
Meer and Melinko. Melinko was also a member of the IIT. The delivery to
them of the Vino report provided them with the opportunity to follow up
on the investigation of their own allegations if they felt further investigation
was necessary. However, it was Newburgh and Rattray who did the follow-
up. They interviewed Wilhelm, and, according to Rattray, concluded that the
allegations Wilhelm had received were "b...s...." Apparently VanderMeer
and Melinko did not disagree, or feel their allegations warranted their own
investigation. Onich had earlier been replaced on the IIT.

I conclude that the response taken to the Project Vino Report was
appropriate. There was criticism that the report, or at least a detailed
summary of it, was not made public. However, the "complainants" were ad-
vised of the results. Peressotti, VanderMeer and Onich were regularly
updated on the progress, and Sherriff was present in August, 1985, for what
he described as a "debriefmg." Sherriff was not kept up to date on the
progress of the investigation to the same extent as the others, and con-
sidered the debriefmg was "cryptic." He continued to harbour suspicions
about allegations which Project Vino had found unsubstantiated, and passed
his suspicions on to Peter Moon, who published an article about them in the
Globe and Mail. This article was included in the package that Mai Wood-
house's prepared in support of his motion for a public inquiry during the
summer of 1986. Sherriff also advised Mrs. Taylor of his suspicions in
January 1987, and this bolstered her own suspicions of corruption in the
Force.

It was suggested that, although the conduct of Project Vino was
commendable in every other way, the OPP could be faulted for not pro-
viding more information to Sherriff in answer to his allegations and sus-
picions, and for not providing more information to the public about their
investigation and its results. While it might have been preferable to advise
Sherriff in more detail about their conclusions, he was not a police officer,
the secrecy surrounding the investigation would naturally inhibit the in-
vestigators from disclosing detailed information to a "civilian", and I am not
prepared to criticize them in that regard. Nevertheless, I consider that, in
ordinary circumstances, the informants or complainants should be given as

144 Pre^'ious Investigations

much information as possible about the results of an investigation of their
allegations in order to allay suspicions of an incomplete investigation or of
a cover-up. For the same reasons, the OPP cannot be faulted for not making
their report public, particularly so because the allegations had not been
raised publicly and, for the most part, had been found to be unsub-
stantiated.

Project Vino was a sincere attempt by the OPP to investigate alle-
gations of wrongdoing under secrecy conditions imposed by the com-
plainants which made a thorough investigation impossible. The real problem
was that its report, never intended to be made public, was leaked to the
press. The resulting article, based on the unsubstantiated allegations in the
report, but not naming names, resulted in extensive and unnecessary damage
to the reputation of the NRPF.

Previous Investigations 145

(D) THE OPP WIRETAP INVESTIGATION

During his research for his broadcasts about the NRPF, Gerry McAuHffe
met Mark DeMarco, who provided him with information of perceived
wrongdoing in the Force.

In October or November of 1984, McAuliffe received in the mail
an envelope similar to others he had received from DeMarco, and thought
he recognized DeMarco's writing on the envelope. The envelope contained
a number of documents, which McAuliffe did not recognize, and he placed
them with other documents he had received from DeMarco.

On January 23, 1985, McAuliffe decided he had no further interest
in the considerable volume of documents that DeMarco had given him, and
packed them up in a box he described as being the size of a 24-bottle case
of beer, and DeMarco came to his office and picked up the box. The fol-
lowing morning DeMarco telephoned McAuliffe, and told him he had found
four pages in the box which he stated he had not sent to McAuliffe and had
never seen before. DeMarco suggested that these pages indicated that his
telephone had been wiretapped. McAuliffe was interested, since his phone
number was one of seven listed on one of the documents. He instructed
DeMarco to note at the top of the documents the exact time and circum-
stances of how he first found them. This DeMarco did.

DeMarco delivered the documents to McAuliffe on January 29.
McAuliffe, who was familiar with DeMarco's writing, thought that some of
the writing on the documents looked like DeMarco's, and had him swear
that none of the writing was his. On February 8, McAuliffe turned over the
documents to John Takach, the Assistant Deputy Attorney General, for an
official investigation. On February 11, Superintendent McMaster and Ser-
geant Joyce, of the OPP, who were already engaged in Project Vino, were
assigned to this investigation.

A very extensive and thorough investigation followed. It was not
hampered by the secrecy restrictions of Project Vino. The completeness of
the investigation is illustrated by the steps taken by the investigators:

• all related documentation was examined and analyzed;

• all personnel of the NRPF who could possibly have had knowledge
of such wiretaps were interviewed and subjected to polygraph tests;

146 Previous Investigations

• their handwriting was analyzed and compared with the alleged
wiretap documents;

• the alleged documents were subjected to forensic analysis, including
photocopy and fingerprint tests;

• DeMarco was interviewed three times, but refused to take a poly-
graph test;

• numerous other witnesses, including McAuliffe and DeMarco's
lawyer, were interviewed;

• analysis was done of different photostat copies of the alleged
wiretap documents, which other persons had received from De-
Marco. Significantly, these other copies did not have the note at the
top which DeMarco had put on the McAuliffe copies on January 24,
1985, immediately after allegedly seeing them for the first time;

• all telephone numbers shown on the documents were traced;

• all Bell Telephone employees who could possibly have knowledge
of the alleged wiretaps were interviewed;

• all Bell records that could possibly relate to the alleged wiretaps
were examined;

• all physical outlets of DeMarco's telephone lines were examined for
possible physical evidence of a wiretap;

• all notations on the documents were analyzed, and it was estab-
lished that they were not similar to those relating to a normal
wiretap;

• the easy availability of this type of document was established by
obtaining samples by writing to the government and pretending to
be a student doing research on a school project; and

• numerous other more routine investigatory steps were taken.

So far as any involvement by Force members was concerned, all the
test results were negative. The documents themselves were photostat copies
of authentic forms used in connection with authorized NRPF wiretaps, but

Previous Investigations 147

their contents were not authentic and did not contain the information that
would appear on properly completed forms. Two of them appeared to have
been used as memo pads to scribble memos and phone numbers; one of the
others, with "Operational Report" printed at the top, had superimposed upon
it a photocopy of a Buffalo, New York invoice, dated March 3, 1980, for
a scale, and addressed to "DeMarco". The superimposed invoice obscured
most of the form, but at the top, in the space headed "Object", DeMarco's
name and address had been printed in ink by hand. Normally, in that space
would be typed the purpose of the wiretap, such as "Drug Investigation —
Marijuana (Trafficking)," not the name of the person under surveillance.
Another had a photocopy of a Canada Customs import form, dated March
3, 1980, in the name of DeMarco's business, "Tiffany Coin," apparently for
the importation of the same scale.

Sergeant Joyce produced for the Inquiry a transparency which he
had prepared in a few minutes in a local stationery store on the previous
day, which could be photocopied over a wiretap form to duplicate the
appearance of the forms described above. It is inconceivable that any
trained person contemplating an illegal wiretap would fill out an official
report form at all, let alone fill it out incorrectly. Nor is there any ex-
planation of why the forms would then be photocopied in such a way as to
partially obscure the information on the form by the superimposition of an
invoice identifying the "target" of the wiretap, unless it was done to cover
information already on the form that indicated that the form originally
showed some other "target."

The OPP concluded that the NRPF did not conduct an unlawful
interception of DeMarco's private communications, and that the documents
in question had been fraudulently prepared on stolen forms, or discarded
forms taken from the garbage, by someone outside the NRPF who wished
to make it appear that the Force had used them in an illegal wiretap. Since
the investigation indicates that no member of the NRPF was involved, the
question of who prepared the false documentation is beyond the mandate
of this Inquiry.

I have no hesitation in concluding that the OPP investigation of the
DeMarco wiretap allegations was proper, efficient and complete, and I
compliment the investigators on the thorough manner in which they carried
out their complex assignment. Counsel for the Board summed it up accu-
rately when, in cross-examining Sergeant Joyce, he said:

]48 Previous Investigations

"I would be shocked, sir, if anyone is going to take contest with the
report. I want to put on the record, on behalf of the Board of Commis-
sioners of Police, I doubt if I have ever seen a wiretap report which is more
professional or an investigation more thorough than the one you did."^"

The OPP investigation of the alleged DeMarco wiretaps was
completed by the spring of 1986, and a 173-page report was prepared, but
was not made public until the further wiretap investigation described below
was completed. On December 4, 1 986 there was a press release summar-
izing both investigations, and a copy of the report was provided to Chief
Gayder the same day. The Board then issued a press release strongly
endorsing the thoroughness of the investigation and its conclusions.

Meanwhile, by the late summer of 1985, while the investigation was
still continuing, McAuliffe, who had as yet done no broadcast about the
wiretap allegations, had become disenchanted with the investigation, and
concluded that it was being ineptly executed. Between September 30 and
October 2, he broadcast six programs, going beyond the DeMarco docu-
ments and strongly suggesting that there was proof of a series of illegal
NRPF wiretaps, and called for a public inquiry. Other media joined in, and
questions were raised in the legislature. As a result, the scope of the OPP
investigation was widened beyond the DeMarco allegations. The second in-
vestigation was as comprehensive as the first.

In order to perform a wiretap, whether authorized or illegal, it is
necessary to locate the target's individual telephone line, and only Bell
Canada can provide this information. The investigation revealed that
between January 1, 1980 and October 4, 1985, Bell had provided such in-
formation to the NRPF on 53 occasions. Of these, 16 were identified as
authorized wiretaps. The OPP carefully scrutinized the remaining 37. They
spent five months examining all the physical evidence surrounding each
telephone connection and all documentation, and conducted 77 interviews.
They found that the NRPF was using the information to install Dialled
Number Recorders (DNRs). A DNR is a device which records the date,
time, duration and dialled number of all outgoing calls, and the date, time
and duration of all incoming calls from and to the line to which it is
connected. It does not record the actual conversation, and so does not
require an authorization under the interception of private communication
sections of the Criminal Code. However, Bell Canada policy was that the
necessary information would not be provided unless a search warrant had

Inquiry transcript, vol. 184 (May 24,1990): 104.

Previous Investigations 149

been obtained. During much of the period in question, the NRPF had some-
how been obtaining the information without a warrant, and thus had been
violating Bell policy. In 1989, the Federal Crown Law Office did a detailed
study of the matter, and concluded that neither an authorization nor a search
warrant was legally required. Accordingly, the actions of the NRPF were
not illegal at the time, although it should be noted that the legal position
may have been changed by the recent decision of the Supreme Court of
Canada in Regina v. Duarte?^

The OP? investigators reported that "no evidence was found to in-
dicate anyone listened to or intercepted by any means unauthorized private
communications."

The Commission investigators interviewed all OPP officers involved
in the investigation, and all counsel were provided with copies of their
interviews and of the OPP report. No counsel asked for further evidence.

I conclude that this second phase of the OPP wiretap investigation
was proper, efficient and complete, and that there is no evidence to support
the allegation that the NRPF conducted illegal wiretaps.

Because of the conclusions resulting from these investigations, it
was not necessary for the NRPF to take any steps to correct identified
problems or implement any recommendations arising out of the investi-
gations. However, once again there arises the question of the advisability
of concluding a well-publicized investigation with a brief press release. The
investigations had established that the NRPF was not guilty of engaging in
unauthorized interceptions of private communications. However, McAuliffe,
not being aware of the thoroughness of the investigation, and presumably
fretting at the delay in the release of any report, had told the public that
there was proof that illegal wiretaps were occurring. A two-page press
release assuring the public that all was well was unlikely to counteract Mc-
Auliffe's forceful presentation to the contrary. The lack of a more inform-
ative report was one of the factors that increased public suspicion of wrong-
ful conduct in the NRPF and contributed to the pressure for a public
inquiry.

^' /?. V. Sanein (1990). 74 C.R. (3d} 281.

2 OTHER ALLEGATIONS

(A) GITTINGS and L. and D.

David Gittings joined the St. Catharines Police Force in 1955. In 1964 he
was assigned to the Criminal Investigation Branch (CIB) and following the
formation of the regional force on January 1, 1971, he was a Sergeant in
the St. Catharines CIB. He was promoted to CIB Staff Sergeant in 1975; to
Inspector and Executive Officer to Chief Harris in 1977; placed in charge
of the N°. 1 Division CIB in 1980; promoted to Superintendent in com-
mand of N°. 3 Division Welland in 1985, and to Staff Superintendent in
command of Headquarters, Administration, in 1985. Over the years a num-
ber of allegations and rumours about him circulated both within and outside
the Force.

(1) The reduced sentence allegation

On July 21, 1982, Acting Sergeant Ray Stankus of the NRPF interviewed
one D., who was in custody on a number of fraud charges. In exchange for
a recommendation for a reduced sentence, D. offered to provide information
that he had heard from one L. that certain officers accepted payoffs for
inside information. Sergeant Sandy Race of the NRPF received similar
information from D., who named Inspector Gittings (then head of N°. 1
Division CIB) and Sergeant Marvin. Stankus reported the matter in a memo
to Acting Sergeant Stan Krysa, and Race reported it to Staff Sergeant Peter
Kelly. Race supplied recording devices to D. to obtain evidence of his
allegations, but none was forthcoming.

The matter was also investigated by the OPP during Project Vino.
In July, 1983, Sergeant Peter Lollar of the OPP interviewed D. in
Warkworth Correctional Institute, where he was serving a sentence arising
out of the fraud charges already mentioned. Obviously, his earlier
proposition to Stankus had borne little fruit, since the evidence is that he
was serving an eight-year sentence on that charge. D. offered information
re Gittings and Marvin, in exchange for a transfer to a different correctional
institution of his choice. Lollar reported the information to the Intelligence
Branch of the OPP, but a "sweep" of their intelligence files revealed no
similar information relating to Gittings or Marvin, and the matter was
dropped as groundless. Apparently, similar propositions to exchange
non-existent intelligence for a reduction in charges or sentences from
incarcerated individuals are not uncommon. Unfortunately, because of the

J 52 Other Allegations

secret nature of Operation Vino, its conclusions were not published, and the
rumours continued.

In November 1986, Mrs. Taylor's husband, a medical doctor,
advised Mrs. Taylor that one of his hospital patients (assigned the
pseudonym Pinocchio during the hearings to preserve his anonymity) had
information of a serious nature relating to the NRPF, and wished to meet
her. Unknown to Mrs. Taylor, Pinocchio was a sometime "speed" user, with
a criminal record, well known to the police as a person of very doubtful
credibility. Mrs. Taylor met him in his hospital room, and he told her that
he was an NRPF informant; that a senior officer of the Force was the "eyes
of organized crime" and was on the payroll of L; that on one occasion this
officer had arrived at an "after-hours" bar run by L. and gave L. a package
containing NRPF uniforms in exchange for an envelope of the same type
as those handed to the regular employees on pay day. Pinocchio also told
her that he had been offered a contract on VanderMeer's life and had
received $10,000 on account but hadn't "done the job," and wanted her to
meet an individual, also an informant, but then in jail, who had also been
offered the contract on VanderMeer.

Pinocchio told Mrs. Taylor that he intended to go to the media with
his information, and Mrs. Taylor arranged for a meeting with Pinocchio for
herself and Michael Clarkson of the Standard, since she felt that Clarkson
would not be sensational in his story without doing a great deal of research.
She and Clarkson then met Pinocchio in his hospital room, and he repeated
what he had already told Mrs. Taylor. Mrs. Taylor told VanderMeer of
these meetings, and VanderMeer cautioned her against meeting with Pin-
occhio alone. Mrs. Taylor arranged two further meetings with Pinocchio in
VanderMeer's presence in December 1986, and one with Pinocchio, Van-
derMeer, Peter Moon of the Globe and Mail, and herself, at an uncertain
date in late January or early February, 1987, but before Gayder's sus-
pension.

Both VanderMeer and Moon testified that they put little faith in Pin-
occhio's stories, and believed that they indicated this in their conversation
with Mrs. Taylor, but Mrs. Taylor does not think they did. Mrs. Taylor re-
peated Pinocchio's allegations at the January 30, 1987 meeting in her home
in the presence of Crossingham, VanderMeer and Shoveller, and Shoveller
believes he warned her that Pinocchio was not a credible person, but Mrs.
Taylor denies this. In any event, the IIT did not investigate Pinocchio's
allegations, presumably because of VanderMeer's view of his credibility.

Other Allegations 153

However, rumours about Gittings and organized crime persisted, and
the matter was investigated by Commission investigators, who interviewed
Lollar and five other members of the OPP who had had contact with D.
concerning his allegations, but received nothing of substance. They also in-
terviewed D., who stated he had no direct evidence but that L. had told him
that he could arrange a reduced sentence for D. through his police contacts.
L. had thereupon made a phone call, and D. had overheard L.'s part of the
conversation, wherein Gittings' name was mentioned. Following the con-
versation, L. told D. that it was all set, D. would receive a sentence of only
18 months, but it would cost D. $25,000, presumably as a payoff.

On January 5, 1990, the investigators interviewed L., who stated that
his only contact with Gittings was in Gittings' proper official capacity as
a police officer, and that he had never received any information from Git-
tings or made any payoff to him. Questioned about the alleged phone call,
he could not remember it or a discussion with D. about a reduced sentence,
but stated that he might have been "setting up a scam" to get some money
from D. On January 18, 1990, L. underwent a polygraph examination by a
Metropolitan Toronto Police Force expert, who analyzed the resulting charts
and concluded that L. was telling the truth when he denied ever having paid
off Gittings. The Commission investigators also interviewed VanderMeer,
Marvin and Gittings.

All counsel agreed that there was no evidence to support the alle-
gations. Board counsel, who had been most critical of Gittings earlier in the
Inquiry, and frequently spoke of rumours of infiltration of the Force by or-
ganized crime, stated that, although originally he had "actually had some
doubts about Gittings," he was now convinced of Gittings' innocence of the
charges, and urged a clear finding to that effect so that people such as D.
and L. should not be allowed to get away with such a "charade." He stated
that "The circulation of that rumour in and of itself may be responsible in
one way or another for us being here. I don't know whose ears that rumour
reached. I know that members of the Board of Commissioners of Police
have harped on it since Day One, the fact there were allegations of or-
ganized crime's infiltration of the Police Force. I know that Chairman Tay-
lor has mentioned many times the name "Gittings" coming up. She re-
ceived that information from, of course, Pinocchio, inasmuch as Pinocchio
was correct, insofar as D. may have told Pinocchio that, or L. may have
told Pinocchio."

Pinocchio was interviewed by a Commission investigator in Nova
Scotia, and took a polygraph test, in which he recanted his earlier alle-

154 Other Allegations

gations of payoffs to Gittings and VanderMeer and specifically denied
having any personal knowledge of payoffs to either Gittings or VanderMeer.
The Metropolitan Toronto Police polygraph officer, who accompanied the
Commission investigator and administered the tests in Nova Scotia, having
studied the four resulting charts, certified in his opinion that the answers
were the truth.

On all of the evidence, I find that the allegations and rumours had
no substance, but they provide an alarming example of the way unfounded
scandal can spread and contribute to the excruciating trauma inflicted on
innocent individuals falsely accused at a public inquiry.

(2) The biker cheque allegation

On October 20, 1988, shortly before the first evidence in this Inquiry was
heard, the Toronto Star reported: "A senior police officer was heard in a
wiretap talking to an Outlaws motorcycle gang member about a cheque. The
officer told the biker the cheque was ready and could be picked up. (A
police source told The Star that "cheque" is believed to be a code word.)"
The report amounted to a very serious allegation that, through at least one
of its most senior officers, the Force had been infiltrated by organized
crime, and that therefore the administration of justice in the Niagara Region
was in serious jeopardy. The article stated that the information was con-
tained in a 25-page report, presumably the secret report from Operation
Vino which was improperly leaked to the Star by some member of the
NRPF who had access to it. Every inquiry witness who might have leaked
the report denied under oath having done so. The report referred to an auth-
orized OFF wiretap on May 13, 1981 of the Outlaws clubhouse during a
joint forces operation involving the OFF, the RCMF and the NRFF. Ac-
cording to this report, K., "a known member of the Outlaws motorcycle
gang telephoned Gittings and discussed picking up a cheque that Gittings
had for him. Gittings advised a cheque was ready and could be picked up."
The report suggests that allegations of bribery and obstructing justice
against Gittings could arise from the interceptions, and that this information
was passed on to the three NRFF members of the joint forces team, includ-
ing NRFF Deputy Chief Walsh and Staff Sergeant Kopinak, the NRFF in-
telligence officer.

Commission investigators conducted an investigation, which re-
vealed that, on March 12, 1981, in accordance with a search warrant, the
NRFF seized a motorcycle belonging to K. and had it towed to a secure

Other Allegations 155

compound belonging to the towing company. After removing certain articles
from it, the NRPF released the motorcycle to K. on April 8, 1981. To gain
release of the motorcycle, K. paid the towing company $91 in cash. The
records of the Regional Municipality of Niagara show that on May 8, 1981
a cheque was issued payable to K. for $91 to "reimburse for storage
expenses." I conclude that this was the "cheque" referred to by the Toronto
Star "police source" as being a "code word," presumably intending to imply
something evil. One is left to wonder at the imagination and reliability of
media "police sources" who can do such harm to the reputation of police
personnel and forces.

I am satisfied that there was no wrongdoing on the part of Gittings
or any other police person in relation to this incident.

(3) Miscellaneous rumours

A number of other more minor allegations of impropriety on the part of
Staff Superintendent Gittings were investigated by the Commission in-
vestigators, briefs were prepared and circulated to counsel for all parties
having standing. From having presided over these hearings, I am satisfied
that certain of the parties would not have agreed to simply file the briefs
and dispense with evidence by way of cross-examination on these matters
had they not been satisfied that there was no reason to pursue them further.

I accordingly find that rumours of misconduct and possible cor-
ruption within the NRPF resulting from those allegations are unsubstan-
tiated.

156 Other Allegations

(B) PROJECT PROVE

In early 1985, N°. 2 Division (Welland) CIB commenced an investigation
of a series of break-ins believed to be connected to a drug operation. The
investigation was named "Project Prove." It included surveillance of the res-
idence of one of the principal suspects from a trailer parked near the
residence in an industrial park. Shortly after the surveillance commenced,
the Force was advised through an informant that the suspects were aware
of the project, and this was confirmed by another informant. As a result, the
project was shut down after only two weeks.

Not surprisingly, rumours circulated within the Force that in-
formation about the operation had been leaked by a member of the Force.
These rumours were brought to the attention of the Commission investi-
gation team, who did an extensive investigation. Every person remotely
connected with the project, including 22 officers and civilians, were
interviewed, and full transcripts are contained in the Commission brief on
the subject. All persons interviewed who had heard rumours of a leak stated
that their suspicions were based on nothing but hearsay. No evidence was
found to suggest a leak by any Force member.

However, investigation revealed that the surveillance trailer was
parked beside a large building with bays that were rented out by the month
to different people to repair their vehicles. Some of these people were of a
somewhat unsavoury reputation, and the investigators learned that there was
a good deal of talk amongst them about the trailer. The surveillance officers
were driven to the trailer in CIB cars readily identifiable by any experienced
criminal. Other officers brought coffee or lunch to those on duty, using CIB
cars. Early in the operation, persons renting the bays approached the trailer
wanting to know who the officers were watching. It seems obvious that the
persons under surveillance could have learned of the police operation be-
cause of the clumsy methods employed by those setting it up.

Copies of the Commission brief were provided to counsel for all
parties having standing, and none suggested that the matter justified the
calling of oral evidence. The episode is another example of the way in
which the NRPF rumour mill circulated unfounded rumours which under-
mined confidence in the integrity of the Force in the minds of other mem-
bers of the Force, of the public, and, indeed, of members of other forces.

I conclude that the rumours of misconduct on the part of any officer
in connection with this operation had no basis in fact, but instead arose as

Other Allegations 157

a result of gross negligence in allowing too much observable police activity
in the area of the surveillance project.

158 Other Allegations

(1) The Leonard Hotel rumour

Over the years there had been rumours within the Force of a high-stakes
poker game at the Leonard Hotel in St. Catharines, attended by crime fig-
ures and police officers, with the implication of possible confidential
information being passed along to the criminals.

On January 3, 1985, there was a meeting of a number of persons
concerned about rumoured corruption in the NRPF. This was one of the
meetings that led to the formation of the OPP Project Vino.' The meeting
was held at the home of Stephen Sherriff. Present, in addition to Sherriff,
were Staff Sergeant Sandelli of the Metropolitan Police Department and
Sergeant MacCharles of the OPP, Constable Peressotti and Sergeant Van-
derMeer of the NRPF, and Constable Gill of the NRPF, whom VanderMeer
had brought along to relate his information regarding misconduct in the
NRPF. Sandelli prepared a memorandum dated January 9, 1985, reporting
on this meeting. In it, referring to Gill's information, he states: "... There
was continuous reference to card games held in Niagara Region and fre-
quented by high-ranking members of the Niagara Regional Police Force
from the Chief down to Sergeants. Also present at these games were
organized crime figures such as 'SB' [pseudonym substituted by me]."

In his evidence before this Inquiry, Gill testified that the rumour
was that the game had started at the Leonard Hotel and then moved to
Schenck's farm.

No evidence whatsoever was advanced, and none was found by the
Commission investigators, to support these allegations. Although Van-
derMeer was present when Gill repeated the rumour, he apparently gave it
little credence, since the Leonard Hotel card game was not investigated by
the IIT, although the card game held in the Schenck farm greenhouse re-
ceived considerable IIT attention.^ It seems probable that the rumour of
Gaydcr's participation at card games with criminals at the Leonard Hotel
was based on the Schenck farm card games, and, like many of the others
circulating in the Niagara Region rumour mill, got "better" and more

See Project Vino, p. 137.
See Schenck farm, p. 159.

Other Allegations 159

confused in the telling. I conclude that the rumour was without foun-
dation.

(2) Schenck farm

Every Wednesday night for some 30 years James Gayder and some of his
friends got together for a game of poker. It could not be described as a
high-stakes or heavy drinking game — the ante was 5 or 10 cents, with a
maximum of three 25 cent raises, and Gayder' s evidence was that about six
bottles of beer, in total, were consumed during the evening. Over the years,
some players dropped out and others joined. In 1983, Gayder's uncle, who
was one of the group, died and Sergeant Allan Marvin replaced him. By
March, 1987, the regulars included Gayder, Lake, Parkhouse, Marvin and
a couple of local farmers including Mr. Schenck. Originally the games were
rotated amongst the participants' homes, but due to spousal objections to
cigar smoke, the game moved to the lunch room in the greenhouse on the
Schenck farm.

In June, 1981, OPP officer Detective Sergeant Wilhelm submitted
to his superiors a memorandum of an investigation in the Niagara Region
regarding credit card fraud, and referred to the fact that Sergeant Marvin,
the head of the four-man fraud unit of the NRPF, was suspected of "inter-
ference in criminal investigations and consorting with criminal element,"
and referred to a rumour that Marvin "is believed to play poker on a regular
basis with Deputy Chief Gator [sic]. Deputy Chief Gator is apparently well
respected but mentioned here only as a possible influence for Marvin." In
February 1985, Wilhelm delivered another report that he had received in-
formation from NRPF officers Melinko and Madronik that "Gator [sic] and
Marvin and friends, play cards at Shank's [sic] farm greenhouse. The fairly
new Deputy Chief, Parkhouse is also a good friend of Gator's and plays
cards in that group as well."

Peter Moon testified that VanderMeer, during their first meeting in
July 1985, expressed his concern about these reports. Denise Taylor testified
that in the fall of 1986, Gill told her of the rumours of Leonard Hotel poker
games, and in January 1 987, Sherriff told her of allegations that Gayder and
Walsh attended poker games with well-known criminals. He did not men-
tion that he had heard this from Gill, and she apparently accepted the in-
formation as supportive, rather than repetitive, of Gill's suspicions. She
testified she also heard the rumour from other sources, including Baskerville
and Pinocchio. Unfortunately, neither Gill nor Baskerville mentioned that

760 Other Allegations

one of their sources had been this same Pinocchio. The rumour was also re-
corded in the OPP's Vino report, quoting from Wilhelm's 1981 memoran-
dum.

Shortly after Gayder's resignation, members of the IIT commenced
surveillance of the Wednesday night poker games. For some six weeks they
recorded the car licence numbers of all persons attending the games, and
had them checked by the Department of Transport. They eventually decided
that there was no substance to the rumour that Gayder was playing cards
with sinister characters.

I conclude that there was nothing improper about the card games at-
tended by Gayder. However, while I of course do not question the right of
any officer to meet with his friends in his off-duty hours, if, as I assume to
be the case, Gayder was aware of even some of the rumours (whether
well-founded or not) about Marvin, it would have been better judgement on
his part to have introduced someone else to the poker group when a
vacancy arose due to his uncle's death in 1983.

Other Allegations 161

(D) VANDERMEER DEATH THREAT

Reference to a death threat to Sergeant VanderMeer kept recurring during
the Inquiry hearings. Being a criminal matter, it would normally be outside
the Commission's terms of reference, and would be referred to Chief Shov-
eller to be dealt with as a regular police matter. However, both Sergeant
VanderMeer and his counsel repeatedly referred to lack of action by either
of the two police forces which investigated it as indicating some inter-
ference by the higher ranks of the NRPF, perhaps symptomatic of cor-
ruption. Accordingly, in the hope of clearing the air, I shall set out the facts
presented to the Commission.

During the summer of 1984, the RCMP was conducting a drug in-
vestigation in the Niagara area, and one of its undercover officers was
working with Pinocchio as an informant. On August 15, 1984, the two were
together in a health club owned by C."* In conversation, C. asked: "What
about frying a cop?" and stated he was referring to VanderMeer whom he
considered was responsible for his troubles with the law. The RCMP agent
reported this to his superiors, who felt it might constitute a death threat, and
the next morning the RCMP officers met with Staff Superintendent Shov-
eller, and officers Chambers, Chandler and VanderMeer to discuss the sit-
uation. The NRPF offered to move VanderMeer out of the country while
the matter was cleared up, but he was unwilling to leave his family, and de-
clined. The NRPF and RCMP agreed to co-operate in an investigation. C.
had asked Pinocchio to see him again, and that evening the RCMP agent
and Pinocchio met C. wearing body packs. The conversation as taped was
very general, and parts were inaudible. C. complained of VanderMeer' s
actions in investigating him and Pinocchio said: "That's Corny for you,
well. Corny VanderMeer ... (INAUDIBLE WORDS) he was talking about
Corny yesterday. Did you want trouble?" C. answered: "No" The conver-
sation then referred to other matters, and then C. said: "If you hurt Van-
derMeer physically, and if, you know, I mean, he heals, eh." The informant
asked: "You're saying just, you want him hurt, humiliated or ...?" C. re-
plied: "Yeh hurt and humiliated, and humiliated would be the hardest

... hurt, what do you mean?" The agent replied: "I don't know, broken
bones?" and C. said; "We're talking about a cop." The conversation then
turned to other topics. The investigators concluded that "frying a cop" might
have meant what was later referred to as humiliating VanderMeer, and there
was no other credible evidence of a death threat. The evidence was

This is the same "C." referred to in the Typer Incidents, commencing at p. 175.

762 Other Allegations

reviewed with Superintendent Shoveller and he decided that there was
insufficient evidence to lay a charge of "counselling murder," and that there
was nothing to be gained by pursuing the matter.

On August 28, 1984, Pinocchio, wearing a body pack, had another
conversation with C. Parts of the tape recording were inaudible. C. again
complained about VanderMeer, and said: "Like, I think that even if he was
walking across the street (inaudible) VanderMeer' s car, like (inaudible). All
I want to do is (inaudible) next week, (inaudible) do it legally, and, you
know, I don't think that (inaudible)." Later, following a reference to Van-
derMeer, he said: "... I'm going to the Ontario Police Commission on this

... the pressure they put on me and all the s that they put me through,

well, I've got a lot- of things to report to them." Later, he said, presumably
referring to VanderMeer: "Legally, I'll beat him, illegally I'll end up in
jail."

Neither the RCMP nor the NRPF did any further investigation into
the threats. VanderMeer was very upset at this, believing there was
sufficient evidence to lay charges. On September 19, 1984, C. lodged a
citizen's complaint against VanderMeer, claiming that VanderMeer was
harassing him and conducting himself improperly in his method of ob-
taining witness statements against C. Officers Chandler, Chambers and
Berndt were assigned to investigate the complaint. While interviewing the
witnesses, Chambers discovered that VanderMeer was also reinterviewing
these witnesses, and Chambers heard that VanderMeer felt that Chambers
was "obstructing justice" by interviewing witnesses who were involved in
criminal charges against C. in which VanderMeer was the officer in charge.
Chambers consulted Deputy Chief Walsh, recommending that the investi-
gation of C.'s complaint be shelved until the criminal charges against C.
were disposed of, and Walsh agreed. VanderMeer felt the investigation was
called off because of bias against him, and became deeply suspicious of
Chambers and Walsh.

At the December 27, 1984 and January 4, 1985 meetings of Vander-
Meer and Peressotti with Sandelli and MacCharles of the SEU at Sherriff's
home'* the death threat was discussed. VanderMeer stated that there was
evidence to lay charges and could not understand why charges had not been
laid. It was apparent that he felt there was something sinister about the lack
of action. These meetings resulted in the setting up of "Project Vino" by the
OPP, and one of the matters to be investigated was the death threat. OPP

See p. 137.

Other Allegations 163

Sergeant Joyce examined the notes of the undercover RCMP officer and the
transcripts of the tapings of Pinocchio's conversations with C, and came to
the conclusion that there was no point in investigating further.

On July 12, 1985, Peressotti learned from a criminal, referred to
under the pseudonym of "Goldilocks," whom he was investigating on an
unrelated matter, that in early 1984 Goldilocks had shared a jail cell with
C. He stated that C. had told him that he was going to pay someone to kill
VanderMeer. Peressotti filed a GOR on this on July 15, 1985, and arranged
for his partner Gino Arcaro to investigate it. Arcaro interviewed Pinocchio
and Goldilocks, the two informants regarding the death threat, and obtained
statements from both. Arcaro questioned Pinocchio's credibility because,
while he was talking about the death threat, he "relayed an enormous
amount of information about various people" which Arcaro considered "far-
fetched," particularly an allegation that VanderMeer "had mobsters over for
supper." Goldilocks stated that C. had offered him a contract on Vander-
Meer's life which would pay him $25,000 for each year he spent in jail for
the killing. Arcaro then consulted Crown Attorney Alan Root, who read
over the statements and said there was insufficient evidence to prosecute
because of the criminal records and credibility of the two witnesses.
(Goldilocks was at the time facing a charge of perjury, and Pinocchio, who
had had drug problems, was notorious for his unreliability.)

There had been some suggestion of interference with the laying of
"counselling murder" charges against C., but Arcaro testified that no one
interfered with his investigation, and that no matter what the Crown
Attorney's opinion was, he himself would have laid a charge had he thought
the evidence warranted it. However, based on the lack of credibility of the
witnesses, he did not do so. Arcaro filed his report on July 26, 1985,
clearing the allegation as "unfounded" and met with Joyce, VanderMeer,
Peressotti, and Sherriff to so advise them.

VanderMeer was unhappy not only with the failure to lay charges,
but also over the delay in disposing of C.'s complaint against him, and
Arcaro understood that he intended to complain to the OPP because he felt
that there was interference from within the Force in protecting C. Van-
derMeer did discuss his concerns with Joyce, and suggested that the failure
to lay charges of "counselling murder" amounted to evidence of corruption
in the Force in protecting C, but apparently no further action was taken. He
later arranged for Peter Moon of the Globe and Mail to publish articles on
October 18 and 20, 1985 about C. and the NRPF, which were later included

164 Other Allegations

in councillor Mai Woodhouse's brief to regional council calling for an
inquiry into the NRPF.

In summary, the death threat allegation was originally investigated
by officers of the RCMP and NRPF and the evidence was reviewed by
Superintendent Shoveller who concluded that there was not sufficient
evidence to justify a charge. It was then reviewed by OPP Detective Ser-
geant Joyce as part of Project Vino, and he apparently concluded that it did
not warrant further action. It was further investigated by Arcaro, who was
very concerned about it, but eventually reported it to be "unfounded."

On the basis of the wiretaps and the statements of the informers,
particularly depending on the interpretation one places on parts of them,
there was ample reason for VanderMeer's sincere belief that his life was
threatened. It is difficult to be completely subjective in such circumstances.
Thus, it is quite understandable that VanderMeer, as the subject of the
alleged threats, would be deeply emotionally involved, and would expect
and demand that the person responsible be apprehended before serious harm
resulted. However, I cannot fault the conclusion of the three independent
officers. Shoveller, Arcaro and Joyce, as well as the Crown attorney, that
the only evidence to support the allegation was that of two totally unreliable
witnesses and of taped conversations that were open to a variety of inter-
pretations, none of which provided sufficient grounds to lay charges. Sus-
picions of interference in the investigations were not supported by evidence.
There is no suggestion in the evidence of incompetence on the part of those
involved in the investigation, and the delay in disposing of C.'s complaint
against VanderMeer seems to be explained by Chamber's reluctance to pro-
ceed with the complaint investigation in the face of VanderMeer's reported
objections to interference with his investigation of charges against C.

I conclude there is no evidence upon which I could find misconduct
on the part of members of the NRPF in failing to lay criminal charges in
these circumstances.

Other Allegations 165

(E) JOHN ADAMS AND OPERATION SKYLAB

As mentioned above, on October 20, 1988, just before the Inquiry hearings
commenced, the Toronto Star published an article on page one headlined;
"Niagara Police linked to crime, documents show," and continued on page
two with the headline; "Probe of Niagara police cites ties with bike gangs."
The article obviously was based on a leak of the Project Vino report, and
set out a number of sensational allegations of corruption against the NRPF
which are covered elsewhere in the present report, including the statement:
"Another wiretap picked up conversations between two bikers indicating a
constable was tipping them off about undercover surveillance." The alle-
gation was investigated by the Commission investigators.

In the fall of 1983, Project "Skylab" was commenced as a joint
NRPF/OPP investigation into alleged criminal activities of the St. Cath-
arines chapter of the Outlaws Motorcycle Gang, and it continued for 15
months. Ultimately, on January 20, 1985, 84 individuals were arrested on
a variety of charges, 72 pled guilty and the other 12 who pled not guilty
were convicted after a trial. During the investigation, the Skylab team made
extensive use of authorized wiretaps. On Saturday, April 21, 1984, three
communications between Outlaws members were intercepted, indicating that
a member of the Outlaws had received information from Constable John
Adams of the NRPF that the police were aware that the Outlaws were hold-
ing a rally in London, and that they were going to be watched all the way
to Grimsby, the westerly boundary of the Niagara Region. A summary of
the calls was included in the Daily Supplementary Report (DSR) prepared
by OPP Corporal Wilkinson. The summary was not entirely accurate, since
it stated that Adams had spoken to a member of the Outlaws, and that the
surveillance continued to London.

Staff Sergeant Boston who was in charge of the NRPF Intelligence
Branch and one of the joint coordinators of the project, listened to the tapes
and was satisfied that there was no need for further investigation since the
fact that Outlaws were being watched on the way to London would have
been on the police radio and could be monitored by anyone. The OPP tech-
nical coordinator reported these intercepts in his regular bi-weekly report
which was distributed to the OPP Director of Criminal Investigation, to the
OPP Director of Intelligence, to NRPF Deputy Chief Walsh, and to Staff
Sergeant Boston. In May 1984, Staff Sergeant Boston was transferred, and
Staff Sergeant Chambers took over his role. In reviewing the various re-
ports. Chambers became aware of the Adams intercepts and questioned
Boston, who advised him they were not a matter of concern. Nevertheless,

766 Other Allegations

Chambers listened to the tapes and satisfied himself that no further action
was required, but requested that he be immediately notified if there was any
further reference to Adams in wiretaps. Project Skylab lasted for another
year, but there were no further references to Adams.

Presumably because they saw no reason for concern about the
matter, and investigation of very serious criminal offences was a priority,
none of the several officers of the OPP and NRPF who looked into the
matter filed a report that they were satisfied that no further investigation
was warranted. Thus, in 1985, during Project Vino, when OPP Officers
Joyce and McMaster searched intelligence files for information of cor-
ruption within the NRPF, they found the DSR from Project Skylab. They
checked with Corporal Wilkinson, who advised them he was not aware of
any results of any investigation. Because of the restrictions to which they
were subject of not disclosing Project Vino to members of the NRPF, they
were unable to interview the individuals concerned, and simply summarized
the matter in the Project Vino report.

The summary stated that Project Skylab wiretaps had revealed that:
"On April 21st, T.F. and S.M. (two associates of the Outlaws motorcycle
gang) spoke by telephone and T.F. indicated that Constable Adams told him
that the police had set up a surveillance to London. Later the same day,
T.F. spoke by telephone to D.S. (an Outlaws motorcycle gang member) and
told D.S. a cop was giving them information about stuff he had heard on
the police radio. Investigation revealed that T.F. received this information
from Joe Toth. It is alleged that Adams told him (Toth) about the surveil-
lance. Corporal J.E.D Wilkinson, OPP Technical Support Branch was re-
sponsible for coordinating this project. The contents of the aforementioned
telephone calls were made known at the time to Staff Sergeant W. Boston,
NRPF Intelligence Unit and Deputy Chief Walsh. The results of any investi-
gation were not provided to Corporal Wilkinson." (I have substituted initial
pseudonyms for some of the names). This summary was included in the
leaked Project Vino report which was the source of the October 20, 1988,
Toronto Star article.

Investigation by the Commission investigators revealed that Con-
stable Adams was a motorcycle buff, and was the owner of a very fancy
Harley Davidson motorcycle. One Joe Toth was at the time the only Harley
Davidson mechanic in the Niagara Peninsula, and serviced and repaired
Harley Davidsons for many of the members of the Outlaws Gang. Adams
also had his motorcycle repaired by Toth and was on friendly terms with
him, and according to Toth, would "drop by to say hello, drink a coffee and

Other Allegations 167

that's it." Neither Toth nor Adams could remember any conversation about
police surveillance of the Outlaws.

On the evidence, it appears probable that Adams, while attending at
Toth's garage, did tell Toth, perhaps as a matter of gossip since it was not
particularly secret, that the police were aware of the Outlaws rally in
London and would be monitoring them until they left the Niagara Region,
and Toth passed the information on to an Outlaws member. If so, although
not in itself particularly serious, Adams' conduct was improper because of
the appearance it created, and was partially responsible for the sensational
and extremely harmful allegation against the NRPF which appeared on the
front page of the nation's largest newspaper, without any real foundation for
it. If the confidence of the public in the NRPF needs to be restored as the
terms of reference suggest, the manner in which the substance of the sen-
sational newspaper headline and article evolved provides a graphic example
of how that confidence can be unjustifiably undermined.

However, a further lesson can be learned from this unfortunate epi-
sode. Although the allegation against Adams was potentially very serious,
it was left unresolved by both Forces involved because their officers sat-
isfied themselves that there was no reason for concern, but they failed to
record that fact or notify it to those to whom the Skylab DSR containing
references to the wiretap had been sent. It is recommended that a policy be
established for the reporting of the results of the investigation of and/or
clearance of such allegations, regardless of the investigator's conception of
their importance.

On the evidence, I conclude that Adams did tell Toth, as a casual
matter of gossip, perhaps because the Outlaws London rally was mentioned
and he wanted to exhibit his knowledge, that he was aware of it because he
had heard over the police radio that the police were monitoring the gang to
Grimsby. I do not conclude that there was any intention on the part of
Adams to reveal secret police information to a motorcycle gang, but Adams
exhibited poor judgement in disclosing to a mechanic, whom he knew did
work for the Outlaws, any knowledge he had about their activities.

168 Other Allegations

(F) ALLAN MARVIN

The major allegations against former Sergeant Allan Marvin are contained
in the Wilhelm memo referred to earlier in relation to Project Vino, or in
Police Act charges laid against him. He resigned from the Force on May 13,
1988. The allegations were of the kind that the Supreme Court of Canada
ruled in Starr et al. v. Houlderr' were beyond the jurisdiction of a public
inquiry. The Commission accordingly did not investigate their validity, ex-
cept for two allegations which fell within the Commission's mandate be-
cause they suggested that the Force had been infiltrated by organized crime.

The first was set out in the Project Vino Report, as follows: "it was
further alleged that a conversation involving Sergeant Marvin was lawfully
intercepted during an RCMP technical surveillance project. It was alleged
that Marvin gave particulars of RCMP surveillance cars to an unknown per-
son, knowing the information would jeopardize an investigation." The alle-
gation was investigated by Project Vino investigators, who reported: "In-
vestigation revealed that it was not Marvin who was intercepted, but two
other persons discussing contacting him for licence numbers. Shortly there-
after, it was learned that he obtained the licence numbers." There was no
evidence as to who provided them. Apparendy this was not followed up,
perhaps because to do so might have revealed the existence of Project Vino.

The matter was raised before this Commission by Sergeant Vander-
Meer, and so was investigated by the Commission investigators. Their in-
vestigation disclosed that the licence number was that of a vehicle owned
by a drug store on Bloor Street in Toronto, which was unrelated to the
RCMP investigation. There was also no evidence that Marvin had obtained
it or provided it to anyone.

The second allegation was that Marvin and then-Inspector David
Gittings were "on the take" from "organized crime figures." The source of
this allegation was "D.", the same D. who was involved in the Gittings/
Reduced Sentence Allegation covered earlier. The Commission investigators
could find no credible evidence to support this allegation.

There was also a general allegation that Marvin took part in poker
games with organized crime figures. Investigation revealed no foundation

See Appendix

Other Allegations 169

for this rumour. Marvin did play in tlie Schenck farm poker games referred
to earlier, which it was agreed included no crime figures.

770 Other Allegations

(G) THE PETER KELLY MATTERS
(1) The transfer

In her cross-examination of Deputy Chief Peter Kelly, counsel for Van-
derMeer raised the matter of Kelly's 1986 transfer from St. Catharines to
Niagara Falls when he was an Inspector. Apparently counsel was aware that
he had not been happy about the transfer, and she asked:

" Q. I mean, who did you ultimately see as responsible for
your transfer, sir?

A. Mrs. Betty Parnell.

Q. Mrs. Parnell was responsible for your transfer?

A. Yes.

Q. She was the secretary to Chief Gayder?

A. Yes."'

This exchange triggered protests and protracted debate amongst
some of the counsel as to the motives behind and relevancy of the ques-
tions, but the attendant publicity made it necessary to clear up the matter,
and it was investigated by the Commission investigators. Twelve witnesses
were interviewed, and an extensive brief including transcripts of the in-
terviews and a copy of all relevant orders and documents was filed as an
exhibit and distributed to all counsel. It appears that Kelly, in the fall of
1986, was the Inspector in charge of the CIB in St. Catharines, and was re-
sponsible for an internal investigation of an allegation contained in an
anonymous "poison pen" letter against an officer identified only as "X".
Officer X's father was known to be a friend of Elizabeth Parnell, Chief
Gayder' s secretary. At one meeting with Gayder during the course of the
investigation, at which Kelly was present, Gayder had called in Mrs. Parnell
and she had explained that she had noticed that a word in the anonymous
letter was misspelled in the same way that it had been misspelled in a
document filed in a lawsuit against the Force brought by a person she knew
and who was known to Officer X. This connection, which was later con-
firmed, turned out to be critical in resolving the matter. At one point Mrs.
Parnell complained to Gayder about the conduct of the investigation, and
Kelly felt that she was more involved in the investigation of her friend than
a secretary should be.

Inquiry transcript, vol. 200 (June 21, 1990):36.

Other Allegations 171

Shortly after the police investigation was concluded, with a finding
that the allegations against Officer X were unfounded, 14 officers were
transferred to new positions by a Routine Order, dated November 11, 1986.
Included was a transfer of Inspector Kelly to Niagara Falls as inspector in
charge of N°. 2 CIB. Kelly stated that following the investigation, he had
heard rumours that he and his immediate superior. Superintendent Leigh,
were going to be transferred, and at 1 1.00 a.m. on November 11, he and
Leigh asked Deputy Chief Parkhouse if this was true, and received a neg-
ative reply. At 2.00 p.m. that day he was called in to Parkhouse's office and
told of his transfer. He asked the reason, and was assured that it was be-
cause his talents were needed in Niagara Falls. He stated that, following
publication of the transfer order. Sergeant Peressotti, and probably Sergeant
VanderMeer, and several other St. Catharines officers expressed their regret
at his leaving, saying that the "Queen Bee" (referring to Mrs. Parnell) was
responsible, that the same thing was told him by officers in Niagara Falls
when he arrived there, and that he learned that none of the senior officers
who would normally know in advance of such a transfer had been aware of
the transfer until the day it happened. He stated that going to Niagara Falls
was "a treat to me" because he lived nearby and "Niagara Falls is probably
the plum of CIB, it's where most of the action is, most of the violent crime,
what turns on a detective ... It was my highest ambition to be the CIB In-
spector of N". 2 Division. So I was quite happy with that, but these ru-
mours bugged me ..."^

Kelly approached Parkhouse and asked him if it was felt that he had
mishandled the Officer X investigation, and was told that was not so. He
then asked whether Betty Parnell had had anything to do with the transfer,
and he testified that Parkhouse shrugged his shoulders, looked down and
did not reply. From this, Kelly concluded that Mrs. Parnell was responsible
for his transfer.

Peressotti was interviewed, and stated that he was stationed in Wel-
land at the relevant time, and had heard of Kelly's transfer and that "Betty,
or Elizabeth, Parnell may have been a motivator behind the transfer."^ He
said he did not know the source of that information, or whether it was true,
and he had no personal knowledge of the reasons for the transfer. Sergeant
VanderMeer declined to be interviewed.

^ Statement (Aug. 20, 1990): 15
" Statement (Aug. 25, 1990):2

172 Oth3r Allegations

Gayder was interviewed and stated that in 1986 all transfers between
divisions were discussed at senior officers' meetings, that transfers were
recommended by either the officer's superintendent or the Deputy Chief,
and once a decision was made, a Routine Order was prepared for his sig-
nature; that Mrs. Parnell would not be present at such a meeting and would
not be associated with the process in any manner, and that he had no idea
why Kelly was transferred. He did remember that around that time four
staff sergeants had been promoted to inspector rank, and he believed that
the transfers were made as a result.

Deputy Chief of Operations Parkhouse was interviewed and stated
that transfers were the responsibility of the Deputy Chief of Operations, that
he had been transferred to that position only a month before the transfers
in question; that he did not remember Kelly questioning him about his
transfer, but that Kelly was an efficient officer and his only recollection was
that he was transferred to "bolster another area."^

Mrs. Parnell was interviewed and explained that her only input on
the Officer X investigation was in relation to the misspelling clue; that one
of the investigating officers had given her the letter to examine since she
knew the officer involved; that she had spotted the misspelling and realized
she had seen it before; that she went to the files and found a document with
the same misspelling that she felt identified the author of the poison pen
letter and gave the information to Gayder; that she took no other active part
in the investigation, and had never spoken to Gayder about Kelly or his
transfer.

Retired Superintendent Leigh was interviewed and recalled that he
had heard rumours about his own possible transfer. Kelly was in Leigh's
office when Parkhouse came in about another matter, and Leigh asked him
whether he (Leigh) was going to be transferred to Niagara Falls, and Park-
house replied that he was not. He did not recall any reference to a transfer
of Kelly. He was upset when Kelly came in later to tell him of his (Kelly's)
transfer because he (Leigh), as Kelly's superior officer, had not been ad-
vised in advance, and he understood from Kelly that Kelly blamed the
Officer X investigation for his transfer.

A number of other officers who might be expected to know of any
irregularities in connection with the Kelly transfer were interviewed, but

Slalcmcnl (June 28. 1990):8.

Other Allegations 173

none had any evidence of any influence exerted by Mrs. Parnell in the
transfer of Inspector Kelly, although some had heard rumours to that effect.

I accordingly find that there is no evidence to support this allegation
which was apparently widely circulated amongst members of the Force and
which caused so much controversy and publicity when it was elicited from
Deputy Chief Kelly on the witness stand. It is another unfortunate example
of the widespread willingness of people within the Force to accept and pass
on rumours harmful to the image of the Force without bothering to question
their factual background.

(2) The boat conspiracy

Because of the flimsy nature of this rumour Commission counsel stated he
had not intended to bring this matter before the Inquiry, but Board counsel
vigorously argued that it was necessary "to clear it up" and cross-examined
Deputy Chief Kelly about it. As a result of the attendant publicity, I must
go into it in some detail.

Robert Richardson, at one-time a partner of Peter Kelly, retired from
the NRPF as a staff sergeant following 38 years on the St. Catharines and
regional forces, and spent his winters in Florida. Sometime in April or May,
1987 after his return from Florida, he met Ted Johnson, the Administrator
of the Niagara Regional Police Association, in an elevator at police head-
quarters in St. Catharines. The IIT investigation was mentioned, and Rich-
ardson told Johnson that in March or April, 1987, while having a few
drinks with Peter Kelly, who was staying near him in Florida, Kelly had
told him he was putting together an investigation team to investigate Gay-
der. He said that Kelly told him that Shoveller, former Chief Harris, Super-
intendent Leigh, Kelly and one other person whose name Johnson could not
remember, had met on Leigh's boat on Lake Ontario, and had discussed
ways of getting rid of Chief Gayder. A rumour to that effect thus started,
and was met by a counter rumour that Johnson, Deputy Chief Parkhouse
and retired Sergeant Edward Lake (rumoured to be supporters of Gayder)
had conspired with Richardson to fabricate the allegation of the boat con-
spiracy.

Two Commission investigators interviewed Richardson in Florida.
He stated that Kelly was a good friend of his, and that over a few drinks
Kelly had told him about "putting together" the investigation team that was
investigating Gayder; that Kelly had also told him that on Wednesdays he

174 Other Allegations

often went out with Leigh on Leigh's boat. Richardson knew that Kelly was
friendly with Harris who had been very upset about not being allowed to
defer his retirement, and at being replaced by Gayder. Shoveller was
Kelly's boss, and Richardson "assumed that they'd probably be put together
... they'd probably go out on the boat and maybe discuss it where it was out
of earshot of anyone that might overhear." He further stated that Shoveller
must have known of the investigation, and "Harris was so close to them ...
[and] there wasn't any love lost between him and Gayder ... [and] I just as-
sumed that they would go out on his boat ... it would be a safe place to go
if you wanted to discuss business and you didn't want anyone over-hearing
it ... But if I left the impression that ... these guys were all there, I was just
surmising that they could have been all there." Richardson also said that he
may have mentioned to Parkhouse about the boat and that "probably Shov-
eller and Harris and everybody probably been getting together put this in-
vestigation together just to get rid of a few guys on the Force. Especially
St. Catharines fellows ... Whether there was anything to it or not, I don't
know."'°

Deputy Chief Kelly was cross-examined by Board counsel, and un-
equivocally denied any such "conspiracy" or that he had ever been on a
boat with Shoveller and Harris.

There is absolutely no evidence to support either the boat conspiracy
rumour or a rumour that Gayder, Lake and Johnson had "conspired" to con-
coct and circulate the boat conspiracy story.

Once again, the whole rather ridiculous episode (Kelly characterized
it as "idiotic") points up how rumours based on nothing but someone's fan-
tasy were picked up and circulated within this Force.

Statement (Dec. 1, 1988): 3, 5, 7.

Other Allegations 175

(H) EDWARD TYPER

Sergeant Edward Typer joined the NRPF in 1971. In 1983 he was a ser-
geant in charge of the technical section of the NRPF Intelligence Unit.
Martin Kalagian was at that time a constable, and the only other member
of the section. The section was responsible for installation and maintenance
of surveillance devices. In the early 1980s there were several allegations
concerning Typer, some of which were investigated by the OFF during the
1985 Project Vino. Two of the allegations were that Typer had obstructed
justice by interfering with an effort to tape-record a conversation between
C. and an informant, and by conveying police information to C. C. was a
local business man who operated several fitness centres in Southern Ontario.
His father was a friend of Typer's.

(1) The screwdriver incident

On December 15, 1983, Sergeant VanderMeer submitted a memorandum to
Inspector Gittings regarding C.'s relationship with G.H.," as being
involved in money laundering. VanderMeer had received information in-
criminating C. from C.'s estranged wife who stated that C. had spoken of
a friend in the NRPF named "Ed". On December 3, 1983, the home of Mrs.
C.'s lawyer was damaged by a shotgun blast through the front door and one
through an upstairs bedroom window. C. was suspected of being respons-
ible, and on December 5, 1983, VanderMeer arranged to tape a telephone
conversation between an informant and C, in which the shooting would be
brought up. For this purpose VanderMeer obtained a "body pack" recorder,
called a "Nagra", and gave it to Typer, as the technical officer, to install
fresh batteries, and a tape. The informer, wearing the recorder, then had a
conversation with C, but the recording was of such poor quality that it was
useless. VanderMeer had Constable Kalagian of the technical unit check the
recorder. Kalagian thought that one of the microphones was malfunctioning,
and installed a new one. The informant, wearing the body pack, had another
conversation with C, but again the recording was of very poor quality.
VanderMeer then learned from Constable Peressotti that while installing the
batteries, Typer had "stuck a screwdriver inside the guts of the open tape
recorder." All this was set out in VanderMeer's memo to Gittings, but no
reply was received by VanderMeer. VanderMeer felt this lack of'a reply
supported his belief that investigation of allegations of corruption within the

" The lawyer referred to at p. 183.

176 Other Allegations

Force could not be trusted to the Force to be dealt with internally, and that
this justified him in secretly taking part in Project Vino. Nevertheless,
neither VanderMeer nor Peressotti investigated the incident, nor did they re-
quest the OPP to investigate it through Project Vino.

On December 9, 1983, four days after the failed taping. Constable
Kalagian sent the recorder to the supplier complaining of the poor quality
of the recordings. The company checked the recorder, repaired the plug
ends of the microphones, found nothing else wrong and returned it in good
working condition. It is apparent that no physical damage was caused to the
interior of the recorder by Typer, and that VanderMeer' s suspicions were
caused by Peressotti 's recollection of Typer' s inserting a screwdriver into
the back of the machine which seemed to accord with the recorder's failure.
On the evidence, the only logical explanation is that, what Peressotti, in
retrospect, interpreted as a possible interference with the workings of the
recorder, was Typer' s use of the screwdriver to open the recorder's cover
in order to replace the batteries. I conclude that there is no evidence capable
of supporting a finding of improper conduct in relation to the screwdriver
incident.

(2) The donut shop incident

On December 13, 1983, the same informant was fitted with a bodypack and
sent to talk to C. at C.'s residence. The resulting conversation was trans-
mitted to VanderMeer and Kalagian seated in a cruiser parked in the area.
During the conversation the informant spoke of the investigation into the
shooting incident. C. said he was going to find out "what the hell is going
on" and went to the telephone and called Typer at the police station and
asked for a meeting with him because the police were "hassling" him for
something he hadn't done. Typer agreed to meet C. at 4 p.m. at a donut
shop. VanderMeer and Kalagian then drove to a beauty salon directly across
the street from the donut shop with a good view of the shop. While there,
VanderMeer received a telephone call from Typer. VanderMeer testified:
"Typer told me that he was going to meet with C. ... He advised me that C.
was his informant. He asked me if there was anything I wanted put to C.
I told him at that point 'Just go and talk to him and if he has anything to
say get back to me.' He never did." VanderMeer threatened to arrest Typer
forthwith, and Kalagian became concerned and telephoned his superior. In-
spector Swanwick, to report that VanderMeer "had gone nuts" and was al-
leging that Typer was a "dirty cop." Swanwick ordered Kalagian to report
to him at once, and Kalagian left VanderMeer to continue the surveillance

Other Allegations 177

alone. Swanwick stated in evidence that Kalagian reported the events to
him, and told him that he considered Typer was a very dedicated,
hard-working officer. Swanwick stated that he agreed with this, and took no
action.

The incident was thoroughly investigated by both OPP Project Vino
and the Commission investigators, and a three-volume brief was prepared
and distributed to all counsel. There is no record of what was said in the
donut shop conversation between Typer and C, but both deny that there
was anything improper. Typer states he was recruiting C. as an informer.
No counsel requested oral evidence on these matters. On the evidence, I
find no misconduct on the part of Typer.

(3) Obstructing justice

It was known that C. and G.H., the lawyer accused of laundering the cash
proceeds of crime, were associates, and Sergeant VanderMeer was con-
cerned that Typer was obstructing justice by passing police investigation
information to either or both. VanderMeer voiced his suspicions to the OPP
investigators during Project Vino, and they obtained wiretap authorization
for C.'s telephone. On April 17, May 3 and May 10, 1985, conversations
between C. and Typer were intercepted, and transcripts of the conversations
were included in the 1,800-page Typer briefs distributed to counsel.

The transcripts indicated that C. was asking Typer for advice re-
garding C.'s complaint that someone had dumped garbage on his property.
The OPP reported on their investigation as follows: "No evidence was ob-
tained to establish or even indicate Typer did anything for C. (pseudonym
substituted by me) other than suggest he let his lawyer deal with the matter.
The interceptions confirmed a relationship between C. and Sergeant Typer
that may be suspect but at no time could I demonstrate that Typer's conduct
as a police officer was improper."

Commission staff also investigated the allegations and arrived at the
same conclusion. Typer made no secret of the fact that he had a relationship
with C. On June 21 , 1985, he wrote the Inspector who was his superior sug-
gesting that C, who was being sought by police, was prepared to sur-
render if he could make a deal on sentence in exchange for information
about importers of steroids, and Typer requested that he be replaced as C.'s
"informant handler" because of the rumours about his relationship with C.
There was thus some notification to his superior that he was dealing with

178 Other Allegations

C. as an informant. I agree with the OPP and Commission investigators that
there was no evidence of impropriety on the part of Sergeant Typer in this
matter.

(4) The obtaining of Mrs. C.'s address

In July 1983, C, who at that time was 25 years old, was having marital
problems, which eventually resulted in a divorce. At one point prior to their
separation, Mrs. C. had been driving a Ford Pinto automobile, but C. bought
a 1983 Datsun ZX for her, and loaned the Pinto to the manager of his
Peterborough gymnasium. Following the separation, Mrs. C. and her male
friend drove to Peterborough, took possession of the Pinto and drove it to
Mrs. C.'s Burlington home. C. was upset by this, and sought Typer' s ad-
vice. Typer advised him that if the Datsun was really his, he had a right to
retrieve it, and Typer agreed to obtain Mrs. C.'s address provided C. sent
someone else to pick up the vehicle. Typer then obtained Mrs. C.'s address
through connections within the Bell Telephone Company, and C. had a
friend pick up the Datsun.

Some weeks later, C. had a confrontation with Mrs. C. at a mall in
Burlington where she worked, as a result of which Mrs. C. laid a charge of
assault which resulted in a conviction. VanderMeer told the OPP Project
Vino investigators of Typer' s involvement, and they questioned Typer.
Typer told the OPP investigators that he did not supply the information to
C. for personal reasons, but was attempting to develop him as an informant,
since C. was familiar with organized crime figures who frequented his gym-
nasium clubs.

In January, 1987, Typer was charged under the Police Act with di-
vulging information that it was his duty to keep secret, apparently on
VanderMeer's complaint. An outside counsel, Frederick Leitch, was retained
to prosecute the charge, and a judge fixed an August date for the hearing.
On May 29, 1987, the counsel wrote Acting Chief Shoveller advising him
that, although he was satisfied that Sergeant VanderMeer was sincerely con-
vinced of Typer's guilt, the evidence was "not sufficient to draw an in-
ference of guilt for judicial purposes" and the charge was accordingly with-
drawn. As justified as that result may be, I nevertheless conclude that Typer
showed very poor judgement in using his connections to obtain private in-
formation from the telephone company to assist C. in the recovery of his
car, whether to help out the son of a friend or as a way of developing him
as an informer.

Other Allegations 179

(5) Counselling of an indictable offence

On December 16, 1983, while C. was under arrest on another matter, he
was questioned by VanderMeer about his relationship with Typer. In the
statement that C. gave VanderMeer and Peressotti he stated that, during the
course of his domestic problems, he met Typer in the Donut Shop and
asked him how he could obtain evidence that his wife was seeing another
man, and Typer told him that he could get a private investigator to use both
physical and electronic surveillance. He said that Typer told him that "they
have ways to, whether it be by tapping phones or whatever, to be able to
find out information", and Typer gave him the name of an investigator. On
December 22, 1985, Corporal David Crane of the OPP interviewed C. dur-
ing the OPP investigation of the allegations against Typer. Crane questioned
C. about the above quotation in his statement to VanderMeer, and C. stated
that "they were very pressing, suggestive, can you say this, can you say
that, stop the tape, say it again" and that what really happened was that he
asked Typer " would they go as far as tapping a phone" and that Typer re-
plied "they have their ways of finding things out, and he suggested that my
lawyer hire somebody to do it ... when I pressed him as to how they find
out, he would never, he never ever confirmed or told me this is what they
do ... that suggests that he did tell me, he never did."

Both the OPP and the Commission investigators thoroughly investi-
gated the allegation that Typer was guilty of counselling the commission of
an indictable offence, and found no evidence to support it. No counsel re-
quested that oral evidence be called on the matter, and I conclude that there
is not sufficient evidence to support a finding of misconduct.

180 Other Allegations

(I) RUMOURS OF INTELLIGENCE LEAKS

Sherriff testified that at the meeting at his house with Staff Sergeant San-
delli and others on December 27, 1984, Sandelli, who was a Metropolitan
Toronto Police officer assigned to the Special Enforcement Unit (SEU), told
him that there was a problem about intelligence leaks within the NRPF. He
stated that: "I am sure he said to me that the Niagara Regional Police Force
was cut off from intelligence exchange at the high level; that they were the
only force in the province at that time that was cut off." Denise Taylor
testified that she had heard this rumour from a number of sources, including
Pinocchio, Ronald Brady (the Police Association lawyer). Sills and Basker-
ville. Sills and Baskerville had heard this from the same Pinocchio whom
Mrs. Taylor considered a separate source, but apparently did not mention
this to her. They had placed some credence in the rumour, in spite of its
source, because Sergeant Oesch of the RCMP had told them that he had
heard the same rumour. This assumption that an allegation is probably true
if it is heard from several sources seems to have been the foundation for
most of the rumours that circulated through the Force and from there to the
public, and contributed, to a large extent, to a loss of confidence in the
Force on the part of a substantial segment of the public.'^ The allegation
was not included in the mandate to the IIT, and was never investigated prior
to the calling of this Inquiry.

The rumour was recirculated from time to time and was brought to
the attention of the Commission investigators during the course of the
Inquiry. The investigators found no evidence to support the allegations of
intelligence leaks to criminals, and no evidence that the intelligence units
of other forces hesitated to share intelligence information with the NRPF.

The SEU is a joint forces unit made up originally of selected
members of the OPP, RCMP, Metropolitan Toronto Police and, since April
1990, Peel and York Regional Forces. The SEU is charged with the re-
sponsibility of investigating organized crime. Because of its proximity to the
USA, where most of the organized crime families are based, the Niagara
Region is of special interest to the SEU, and its members are familiar with
the crime situation there. Detective Sergeant Sandelli of the Metropolitan
Toronto Force, and a member of the SEU since 1979, defined "organized
crime" as, "A continuing criminal conspiracy utilizing fear and corruption
for profit or gain while avoiding the courts and having immunity from the

'^ Sec Recycled Rumours, p. 337.

Other Allegations 181

law." He testified that apart from one particular incident that arose in the
early 1980s, and which was later explained to his complete satisfaction, he
has never had any concerns about any association between organized crime
figures and any member of the NRPF, and that he knows of no "situation
where there has been an association between any organized crime figure
and any member of this force (the NRPF)." He described as "excellent" the
relationship between the NRPF intelligence bureau and the SEU. However,
he felt that there was a frequent turnover of personnel in the NRPF in-
telligence bureau in the past, and because it takes a long time to properly
train an intelligence officer, he felt "that is not a particularly healthy sit-
uation", although there had been more stability lately.

Commission investigators interviewed a number of persons having
knowledge of intelligence services in the Niagara Region, and filed a brief
of transcripts of the interviews, with a copy being delivered to all counsel.
None asked that the interviewees be called to give oral evidence. OPP De-
tective Inspector Wayne Frechette, Director of the Criminal Intelligence
Services of Ontario (CISO), was interviewed. CISO is an umbrella organ-
ization for the intelligence units of 32 member police forces, including the
NRPF. Inspector Frechette stated that the NRPF unit "are and continue to
be members in good standing and in terms of passing information to them,
criminal intelligence information, we have no hesitation whatever in passing
any information to them."'^

A high-ranking RCMP officer, whose identity was kept confidential
for security reasons, stated that, contrary to headlines in the Standard and
the Toronto Star to the effect that the RCMP feared leaks of information by
the NRPF, he was unaware of any such fear and that the RCMP as a mem-
ber of CISO has always freely exchanged intelligence information with the
NRPF as a fellow member, and that he personally had worked side by side
with NRPF officers without any concerns about security.

Staff Sergeant Don Delaney, commander of the RCMP Niagara de-
tachment, stated that although he had heard "strictly rumours and vicious
gossip" about NRPF information leaks, "We openly share information with
the Niagara Regional Police Force ...."''*

'^ Statement (Oct. 19, 1989):4-5
'" Statement (Nov. 18, 1989):7

182 Other Allegations

Sergeant Donald Oesch, head of the RCMP Niagara drug unit since
1981, stated that over the years he had heard numerous rumours of NRPF
involvement with organized crime, but only in generalities. For some time
he had had five members of the NRPF working with him on a joint forces
project, considered that it was "the best Joint Forces Operation (JFO) in the
province", had high regard for the members from the NRPF with "nothing
hidden from the regional police ... the day we have to do that, they won't
be here."'''

I conclude that the rumours of police information being leaked to
organized crime figures by members of the NRPF, and of the reluctance of
the intelligence units of other forces to exchange information with the in-
telligence unit of the NRPF, are untrue and were glibly repeated, revived
and recycled without any effective attempt to ascertain the real facts.

'* Statement (Nov. 16, 1989): 15, 16

Other Allegations 183

(J) SHERRIFF'S CONCERNS REGARDING WALSH
AND G.H.

In the spring of 1983, VanderMeer met Stephen Sherriff, senior disciphnary
counsel for the Law Society of Upper Canada, in connection with a fraud
investigation VanderMeer was conducting into a scheme for laundering of
drug profits involving G.H., a St. Catharines lawyer. G.H. told Sherriff that
he was prepared to agree to disbarment proceedings to end the Law Society
investigation, but Sherriff advised him that VanderMeer would continue the
investigation and would send him to jail. G.H. stated he was not worried,
that he (G.H.) had high-level contacts in the NRPF, and that, for example,
he had received some award from the Force, and mentioned the name of
Deputy Chief Walsh in connection with the award. G.H. said his connec-
tions in the Force would cause VanderMeer to be taken off the case.
Sherriff paid little attention to the statement until he spoke to VanderMeer
and was told that VanderMeer "was being effectively taken off the case."
VanderMeer also told him of his concerns with respect to other NRPF in-
vestigations, and that other forces did not trust the NRPF intelligent unit.
Sherriff thereupon became very concerned that there was corruption in the
Force, and wrote a letter dated August 16, 1983 to Superintendent Leigh,
who was Acting Deputy Chief of Operations in the absence of Deputy
Chief Walsh, protesting VanderMeer's transfer from the case.

Following the meetings amongst Sergeant Sandelli of the SEU and
VanderMeer and Sherriff in December, 1984 and January 1985'^ in which
the same suggestion had been made, the OPP's Project Vino had investi-
igated the matter and found no evidence of improper conduct on the part of
Walsh. However, VanderMeer was not satisfied with the thoroughness of
the investigation, although he had been involved in some aspects of it.
Accordingly, he took Mrs. Taylor to meet Sherriff on January 8, 1987, so
she could hear Sherriff s concerns "from the horse's mouth." The Walsh
matter thus became one of Mrs. Taylor's concerns, and resulted in this
Inquiry investigating it again at some length, and calling evidence on it.

The Inquiry evidence indicated that Staff Sergeant Chambers was
VanderMeer's immediate supervisor in the summer of 1983 while Vander-
Meer and Constable Nicholls were investigating the G.H. matter. Vander-
Meer told Chambers that he and Nicholls would have to be released from
other duties for six months and would require a car to carry out the

See p. 137.

J 84 Other Allegations

investigation. Chambers was not happy since the CIB group was extremely
busy, and asked that VanderMeer document the need so that Chambers
could obtain approval from his superior, Inspector Gittings. Apparently
frustrated by this, VanderMeer responded that Chambers didn't know what
a fraud was, that he, VanderMeer, was an expert on frauds, and that if
Chambers was going to deal with the investigation in that manner, he want-
ed no part of it. Chambers, probably also frustrated by VanderMeer' s atti-
tude, replied that that was fine with him and that he would assign the in-
vestigation to someone else. Apparently VanderMeer then told Sherriff he
was being taken off the case. Upon receipt of Sherriff s letter concerning
VanderMeer' s "transfer," Leigh summoned Chambers to his office, where,
in the presence of Gittings, Chambers explained what had happened.
Gittings suggested -that VanderMeer be allowed to continue the investi-
gation, and that was done. Chambers testified that Walsh had no part in any
of these events.

Walsh testified that he first met G.H. in the winter of 1979 when a
friend brought him to Walsh's office to invite Walsh to a B'Nai B'rith
lodge meeting to accept the presentation of a trophy on behalf of the NRPF.
Walsh, and four other officers and their wives attended the presentation
dinner, and Walsh was the guest speaker. The trophy was presented to
Walsh by G.H., and it was placed in the Force Headquarters in St. Cath-
arines. Walsh testified that his only other contact with G.H. was during a
noon work-out at the St. Catharines YMCA in the middle of January, 1980,
and a 10-minute discussion with him about some legal matter on February
9, 1981. He had noted the latter meeting in his notebook, but could not
recall the nature of the discussion. Since G.H. was a lawyer, and was not
under investigation at that time, there would appear to be nothing sinister
in Walsh's casual relationship with him, and there is nothing to indicate that
Walsh was involved in the later investigation of G.H. It can be assumed
that G.H.'s statement to Sherriff about his connections in the NRPF was the
boasting of one at the low point of his career attempting to enhance his
image in his own eyes as well as in his listener's.

I conclude that the allegation of impropriety on the part of Walsh
is groundless. It is unfortunate that the Commission's resources had to be
spent on this matter when it had already been investigated by the OPP and
no impropriety had been found. The episode is an illustration of how many
routine events were misconstrued and resulted in rumours and allegations
that had little or no foundation but did untold harm to the subjects of the
rumours and to the Force itself.

Other Allegations 185

(K) MURRAY GAYDER SURVEILLANCE

According to the Project Vino report, during that investigation, VanderMeer
and Peressotti alleged that then-Chief Gayder may have obstructed justice
by interfering in an RCMP drug investigation involving one of his sons.
Joyce and McMaster, the OPP officers in charge of the project, asked Van-
derMeer and Peressotti to obtain some documentation about the matter, but
nothing to support the allegation was produced, and the matter was not pur-
sued further due to the restrictions placed on Project Vino concerning
non-disclosure of the participation of VanderMeer and Peressotti.

According to Newburgh's notebook of May 21, 1987, the IIT in-
vestigated the same allegations by questioning the RCMP officers involved
and concluded that there had been no interference by Gayder.

Because of the rumours, the Commission investigators interviewed
13 RCMP officers who had participated in the drug investigation, and pre-
pared an extensive brief. The interviews disclosed no evidence of inter-
ference by Gayder. However, at the end of the evidentiary hearings on
November 20, 1990, Mr. Shoniker insisted that the brief be filed as an ex-
hibit. He agreed that there was no indication of interference by Gayder, but,
because the investigation was a joint forces effort including members of the
NRPF, and the RCMP officer in charge was a friend of Gayder, he insisted:
"... nobody should at this stage of the game be protected for any one reason
or another. We have all been through an inquiry which has left no stone un-
turned ..."'^ Accordingly, the brief was filed. It discloses no impropriety
on anyone's part, and I so find.

'^ Inquiry Transcript. Vol. 229 (Nov. 1990): 16

]86 Other Allegations

(L) ORGANIZED CRIME

Throughout the hearings, frequent reference was made, in particular by
Board counsel in his statements, by Mrs. Taylor in her evidence and by
some Board press releases, about the urgency of investigating the rumours
of "infiltration of the Force by organized crime."

On September 14, 1989, when Gayder's counsel was examining
Mrs. Taylor, he asked her to tell the Inquiry what allegations she had heard.
Mr. Shoniker, acting for Mrs. Taylor and the Board, interrupted to state,
"We'll learn the true meaning of eternity here in a minute if we get into the
cataloguing of every allegation that was given to Mrs. Taylor of organized
crime's infiltration into the police force and corruption." In a Board press
release dated February 1, 1990, reference was again made to the Board's in-
structions to Board counsel to urge the Inquiry to get into what they claim-
ed were the fundamental reasons for calling the Inquiry: "These are alle-
gations of impropriety, and in particular, concerns that organized crime may
have been involved, and also the manner in which such allegations have
been addressed in the past."

These and other such statements resulted in considerable publicity
in the media, but nothing other than these general statements was produced.

Perhaps some of the allegations referred to earlier might be very
loosely characterized as being allegations of Force connections with organ-
ized crime, but they have been refuted by the evidence. No other evidence
of organized crime connections was proffered by anyone, although Commis-
sion counsel repeatedly asked that any such information should be brought
forward. The Commission investigators attended on the intelligence bureaus
of all forces that could be expected to have knowledge of any evidence con-
necting NRPF officers to organized crime. None was found.

At the close of the evidentiary hearings on November 20, 1989, all
counsel agreed that there was no evidence that any NRPF officer had con-
nections to organized crime. Mr. Shoniker, speaking for the Board, stated,
"If I could first address the broad sweeping allegation of organized crime's
infiltration of the Niagara Regional Police Force. Every stone in that regard
has been overturned, and the investigators and counsel have examined the
very underbelly of various organized crime operations. Aside possibly from

Other Allegations 187

the leaking of information to a motorcycle gang,'^ there exists not even a
scintilla of evidence that any organized crime operation has infiltrated the
Niagara Regional Police Force. This is a final determination which, Your
Honour, in my respectful submission, no responsible counsel can take con-
test with."

I have no hesitation in concluding that there is no evidence of any
connection of any members of the NRPF with organized crime. Much less
has there been "infiltration" of the Force by organized crime.

See John Adams and Operation Skylab, p. 165.

3 THE PROBLEM

It is apparent that there is a major problem as to the appropriate method of
dealing with allegations and rumours of corruption within a police force,
particularly if those allegations and rumours reach into the senior ranks of
the force. Because they adversely affect public confidence in the police,
they must be confronted and put to rest before repetition results in the
magnification that inevitably accompanies such repetition.

As is illustrated by the attempt of the Niagara Region Police Asso-
ciation to have an outside police force take over the 1987 Internal In-
vestigation from the IIT, many police officers feel uncomfortable about the
possibility of preconceived ideas and even bias affecting the results when
their own force members investigate allegations of corruption within their
force. It is vital to the morale and efficient operation of a police force that
its members have confidence in those carrying out such an investigation.

Just as important is implementing an investigative procedure that
will allay the frequently expressed public concern about police forces in-
vestigating themselves, and even when an outside force is called in, about
police investigating police. Whether or not that conception is justified, it is
a very real one in some quarters.

What are the alternatives?

The creation of an Internal Affairs unit to deal with such matters is one
solution adopted by some large forces, but that is still subject to the above
objection, and is beyond the manpower resources of small forces.

Another possible solution is to refer all serious allegations to the
OPP, but the problem is province wide and to take on this investigative
function for all the forces in the province would probably put an intolerable
strain on its present resources. As well, it would again be police investi-
gating police.

The Ontario Civilian Commission on Police Services, established as
a successor to the OPC by the Police Services Act, does not have the juris-
diction to investigate corruption or to lay criminal charges. In any event,
police officers would be just as uncomfortable being investigated by a
"civilian" commission as they are about being investigated by their own
members.

190 The Problem

Section 1 1 3 of the Police Services Act establishes a "special investi-
gation unit of the Ministry of the Solicitor General," to consist of a director
who shall not be a police officer or a former police officer, and investi-
gators appointed by the Solicitor General. The "Special Investigative Unit
(SIU)," as the unit is called, has jurisdiction to investigate "the circum-
stances of serious injuries and deaths that may have resulted from criminal
offenses committed by police officers," and the director may lay charges.
The SIU is concerned with violence, and there were no doubt sound policy
reasons for so restricting its jurisdiction. Since its inception, it has been
fully occupied with matters within its own particular jurisdiction. It is a
separate unit with a specialized function, and to expand its duties into the
very different area involved in the investigation of police corruption would
be to dilute its objectives.

I conclude that the solution lies in an amendment to the Police Ser-
vices Act that will create a separate unit empowered to conduct investi-
gations into allegations that a member of an Ontario police force has en-
gaged in corrupt practices that may amount to a criminal offence. Members
of the unit should be peace officers empowered to lay criminal charges
which would then be referred to the Crown Attorney for prosecution. I am
well aware of the problems inherent in the selection of unit personnel who
can gain the confidence of the various parties having disparate interests in
the manner in which the unit operates. It is essential that the director of the
unit and the investigators staffing it have extensive and recent experience
in the field of criminal investigations. Otherwise, police officers will not
have confidence in the unit, and the same problems that have plagued the
SIU will undermine the effectiveness of the new unit. Public concern about
"police investigating police" can be avoided by the careful selection of the
unit personnel to ensure their fairness and impartiahty. A regulation should
provide that when an investigation is conducted by members of the unit, no
investigator may be an ex-member of the force under investigation.

The Problem 191

RECOMMENDATIONS

It is recommended that:

1. Recommendation N". 7 of the Landmark Inquiry Report regarding
the training of medical personnel to conduct female body searches
during narcotic raids be further considered.

2. Police personnel likely to be assigned to narcotic or similar raids
be periodically updated on search and seizure operations by train-
ing exercises, seminars or other means.

3. Investigations into alleged police corruption be assigned to the
specialized corrupt practices unit more fully described in the
paragraph immediately preceding these recommendations.

4. (a) the investigators of complaints report back to the com-

plainant the results of the investigation; and

(b) the investigators report the results of the investigation to
those police agencies to whom notification of the allegations
had been given, so that unfounded allegations may be
cleared.

5. Following delivery of a report of an investigation into publicized
allegations against the police, the findings be made public in a
meaningful way and as fully as is practical.

PART III

FORCE MANAGEMENT

1 Amalgamation/Organization

2 The Crisis of 1987 -
The Battle for Control

3 The Special Fund Investigation

4 Internal Investigation Team

5 Sergeant C. VanderMeer

6 The Call for an Inquiry

7 Role of the Board

8 Report on the next Chief

1 AMALGAMATION/
ORGANIZATION

The Commission's terms of reference include the question of whether the
amalgamation of the municipal police forces in the Niagara region has
resulted in a cohesive Force which functions well.

The Commission retained Dr. Richard Loreto, who had made a
study of reorganization of municipal police forces in Ontario, to prepare a
report on the effects of amalgamation in Niagara. His report was distrib-
uted to all participants prior to the November, 1989, workshops. At the
workshops, Dr. Loreto presented his report orally, and this was followed by
a discussion session. A copy of his valuable report may be obtained as
indicated earlier.'

In considering the effects of the Niagara amalgamation it is
necessary to examine the reasons for it, and some of its history.

Following World War II, many municipalities found difficulty in fi-
nancing the delivery of municipal services, which were becoming in-
creasingly sophisticated and expensive. As a result, there were numerous
annexation schemes to form larger municipalities in an effort to better co-
ordinate services, and this in turn resulted in some amalgamations of local
police forces. Between 1953 and 1960, in Lincoln County alone, there were
35 municipal annexations, some small and some quite large. The largest
police force amalgamations resulted from the municipal annexation in-
volving St. Catharines and Grantham Township, and that involving Niagara
Falls and Stamford Township. The provincial authorities soon realized that
these piecemeal approaches, which were occurring throughout Ontario, were
unsatisfactory, and they began to consider regionalization.

In late 1963, a committee was established to examine the issue for
the Niagara area. It was composed of representatives from the Department
of Municipal Affairs (DMA), the counties of Lincoln and Welland, the
cities of St. Catharines, Niagara Falls and Welland, and the Niagara
Regional Development Association, with Mel Swart, then reeve of Thorold,
as chairman. The committee hired Dr. Henry Mayo, as commissioner, to do
a comprehensive study of a regionalization proposal for Niagara.

See page xx.

196 Arralgamation/Organization

Mayo's study clearly indicated the fragmented state of area policing
as well as the resulting financial inequities. The Niagara area was policed
by 15 municipal forces, as well as a county force, special constables of the
Niagara Parks Commission, and the OPP. In addition to its regular duties,
the OPP policed seven townships under contract, without charge. Per capita
policing costs amongst the 28 municipal units in Niagara varied from nil (in
the townships with OPP contracts) to $21.08 in the urban areas. Eleven of
the local forces had fewer than 10 men, and six of those had fewer than
five.

Police professionals from outside the area were approached for
advice on amalgamation of the area police forces. The OPC proposed
amalgamation of two or three adjoining forces, with the OPP to continue
serving rural areas. The OPP suggested that five local forces police the
urbanized eastern part of the region, with the OPP serving the westerly ru-
ral areas. Both the OPC and OPP opposed regionalization. Chief Mackey
of the Metropolitan Toronto Regional Force proposed one large force serv-
ing the urban areas, with the OPP serving the rural areas.

The Mayo report was released in the fall of 1966, and recommended
a two-tier municipal structure similar to Metropolitan Toronto, with policing
on a regional basis.

The Ontario government enthusiastically accepted Mayo's proposals
for regional government, but immediately ran into opposition from most of
the local municipalities. There was little progress towards regionalization for
some time, partially due to the 1967 provincial election, in which the
Minister of Municipal Affairs, a supporter of regionalization, was defeated.
However, his successor, Darcy McKeough, also supported regionalization.
Various alternative schemes were explored, and in early 1969, DMA an-
nounced specific proposals, mostly following Mayo's recommendations. An
Inter-Municipal Committee, with representatives from the four cities and
two counties of the region, was appointed to work with the DMA on draw-
ing up regionalization legislation. On the matter of policing, three options
were suggested: 12 separate municipal forces; 12 municipal forces with a
regional police commission; and a regional force with 12 detachments. The
first option was rejected as creating "unnecessary duplication," and the
second as simply being an interim step to regionalization. The third was
adopted on the basis of "efficiency and cost" despite the objections of
various m.unicipalities.

Amalgamation/Organization 197

The OPC proposed phasing out OPP municipal poHcing over three
or four years, to be replaced by 73 additional regional officers to give the
new force a complement of 444 which would result in the generally
accepted police-population ratio of 1 :750. A Regional Board of Commis-
sioners of Police would have three provincial and two regional members.
The Board would develop an interim policing plan involving amalgamation
of existing forces and then, with OPC advice and approval, a master plan
for complete police regionalization. The proposed transition period of three
or four years was later reduced to one year.

To obtain co-operation of the various local forces, the DMA,
without consulting police management, entered into an agreement with the
Police Association of Ontario (PAO), acting on behalf of the Niagara Po-
lice Association, which provided various guarantees to the existing force
members. These included guaranteed employment and a provision that
members could not be transferred more than five miles from their former
municipality without their consent.

The Regional Municipality of Niagara Act was passed in June, 1969,
providing for regionalization to take effect on January 1, 1970. The Act
created the Niagara Regional Board of Police Commissioners, with regional
policing expected to commence on January 1, 1971. The affected munici-
palities raised serious concerns about cost and about the reduced planning
period, with the result that the government granted the new region
$750,000. to help to cover the cost of phasing out the OPP, and an annual
supplementary grant of $1.50 per capita.

Nevertheless, in June, 1970, the newly-elected Niagara Regional
Council passed a resolution asking the province to phase in regional
policing over five years in order to relieve the "intolerable tax problem."
The new Niagara Regional Board of Police Commissioners, which had been
appointed in January, opposed any delay, citing figures to show that the
cost of regional policing would be within reason, and that the cost of the
required new communications system could be amortized over 10 years, and
the cost of renovating the St. Catharines station for regional police
headquarters could be offset by phasing out four other stations. The Board
also pointed to potential savings from centralized purchasing, in-house
printing and elimination of duplication in many areas.

The government rejected the request for a delay, but to minimize the
opposition, provided additional funding for approximately 50 per cent of the
most significant financial concern, the new Force's communications system.

]98 Amalgamation/Organization

It was also agreed that the takeover of OPP policing duties would be spread
out over three years.

The chairman of the Board of Police Commissioners, Judge Donald
Scott, appointed a committee to plan for the new Force. The committee
consisted of Inspector James Gayder (St. Catharines), Deputy Chief Donald
Harris (Niagara Falls) and Deputy Chief Martin Walsh (Welland), the
second-highest ranking officers of the three largest forces. These three
worked together to develop the overall organization of the Force with Harris
covering the Criminal Investigation Branch, Walsh the Uniform Branch and
Gayder, Records, Communication and Finance.

By the summer of 1970, the committee produced plans for a three-
division, three-detachment force, the concept being that the St. Catharines
Force would expand to police Lincoln County, and Welland County would
be covered by the Niagara Falls and Welland forces. Personnel deployment
would be on a police/population ratio of 1:750 in urban areas and 1:1000
in rural areas. The 78-page report became the master plan for the amal-
gamation of the 11 area municipal forces to be effective January 1, 1971.

Thus, the enormous task of planning regional policing in Niagara
was undertaken by a very small group of professionals who had to also
carry on their normal duties. Since this was the first regionalization of a
police force in Ontario, (apart from the Metropolitan Toronto Force, which
by its size and structure was quite different) the Committee had no previous
model to follow, and there were no OPC studies of amalgamations to con-
sult. The group was operating in a very limited time frame, and throughout
the planning process it was subject to political pressures from a provincial
government enthusiastic about the regionalization concept and anxious to
see the amalgamation of the police forces within the region completed as
soon as possible. Other pressures were from local municipal politicians,
sceptical about regionalization and concerned about the cost of a region-
alized force.

Apparently it was believed by those favouring regionalization that,
despite the large number of local forces of very different sizes, experience,
equipment and facilities, if they were amalgamated properly, an efficient
organization would result. Niagara had no dominant force to provide the
technical and management systems required for a large regional force (again
quite different from Metropolitan Toronto), and new centralized support
systems had to be designed and implemented. As well, the Police Asso-
ciation was excluded from the entire planning process, so that its input was

Amalgamation/Organization J 99

missing. The compromises lianded the association by the DMA in order to
reduce its opposition to amalgamation, guaranteeing job security to all
members regardless of qualification, did not add to the efficiency of the
new Force. The restriction on transfers tended to preserve parochial in-
terests, and delayed integration.

Dr. Loreto interviewed a number of senior officers who were
serving on the Force at the time of amalgamation. He identified several
aspects that were viewed as inadequate: insufficient time for planning,
insufficient communication between the planners and lower ranks, poor
quality advice from the OPC, and insufficient funding.

The organizational structure approved by the Board provided for a
Deputy Chief— Operations and a Deputy Chief— Administration. Admini-
stration included Services (Records and Communications) and Staff (Pro-
perty and Personnel), and was housed in the St. Catharines Headquarters
with the Deputy Chief — Administration. Also in Headquarters was the
Chief and his staff, and the Deputy Chief — Operations with his staff and
the Intelligence and Tactical Units. Operations in the field were organized
geographically, with a division in each of the three major cities and
detachments in the smaller centres. Operations was divided into Uniform
and CIB, and each division set up specialized units in these areas. This
structure remained unchanged until 1976, when an additional CIB unit was
created at headquarters.

Albert Shennan, the first Chief of the new Force, retired in 1977 and
was succeeded by Donald Harris. Harris made major changes in the organ-
izational structure. He appointed an executive assistant to the Chief The
Intelligence Unit was given to Operations as well as two units. Support
Services and a Complaint Bureau. The Fraud and Youth Units were elim-
inated in the Divisions. Planning and Research was placed under Admin-
istration. A new Unit, Financial Functions, was set up as a separate branch,
and Records and Property functions were established in the field units as
well as centrally. Later, further changes were made: Intelligence, and
Planning and Research were combined and renamed Operational Planning,
reporting directly to the Chief, Headquarters Operations was created, and
the Thorold detachment was replaced by a storefront facility, resulting in
considerable criticism from Thorold council.

Harris retired at the end of 1983, and Gayder took over as Chief on
January 1, 1984. He eliminated the position of Deputy Chief— Admin-
istration, and increased specialization and centralization of Headquarters

200 Amalgamation/Organization

Operations, which he renamed Operations Services. He established a new
Press-Media Public Relations Unit, and Planning and Research was removed
from Administration and reported to the Chief through his Executive
Officer. In 1985 the office of Deputy Chief— Administration was restored,
and Planning and Research and a new Audit Unit reported to the Chief
through a new position of Inspector, Management Services.

Specialization in Operations increased at Headquarters under a
Superintendent, Operations, and in the divisions through the revival of
Fraud and Youth Units. New Units of Break-and-Enter, Victims Services
and Traffic Investigation were created.

In 1987, Shoveller became Chief, and he introduced significant
changes. Administration was divided between the Deputy Chief — Support
Services (formerly Deputy Chief— Administration) and a new civilian Chief
Administrative Officer, who took over a reorganized Administrative
Services Unit. Management Services was eliminated, and Planning and
Research and Audit reported to the Chief through the Executive Officer.
Detachments became sub-divisions under a staff sergeant instead of an
inspector. Identification Services were centralized within Field Operations
(formerly called Operations Services).

Thus, the structure of the new Force was gradually transformed
from its original rather loose affiliation of the three largest municipal forces,
which had absorbed the smaller forces in their area, into a more regional
organization with increased centralized and specialized functions. By 1992,
the Force's overall strength had increased by over 80 per cent from 453 to
822 (civilian personnel increased from 55 to 230; police officers increased
from 398 to 592). Centralization and civilization have resulted in an in-
crease in personnel assigned to headquarters at the expense of the Divisions.
The percentage of personnel at headquarters has increased from 15.7 per
cent in 1971 to 35.8 per cent in 1992, whereas Division 1 decreased from

30.5 per cent to 27.5 per cent. Division 2 decreased from 27.2 per cent to

18.6 per cent, and Division 3 from 26.7 per cent to 15.8 per cent.

To assess the success of the Niagara amalgamation requires an ex-
amination of not only the managerial philosophies, policies and procedures,
but also of its internal relationships and communications systems. The
Commission's terms of reference also inquire about internal communi-
cations.

Amalgamation/Organization 201

Good vertical and horizontal intercommunications are essential. In
the NRPF these appear to be similar to those in comparable forces. The
Chief has a daily morning meeting with the two Deputy Chiefs and the
CAO. A bi-weekly staff meeting is held with the Deputy Chiefs, CAO, di-
visional commanders and the Chiefs Executive Officer, The Chief and
Deputy Chiefs attend the meetings of the Police Services Board. There is
a monthly operational staff meeting of the Deputy Chief— Field Operations,
divisional commanders, duty officers and the Chiefs Executive Officer.
There are informal monthly meetings of the Policy and Procedures Review
Committee, consisting of the two Deputy Chiefs, the CAO and the Chiefs
Executive Officer, and there are periodic divisional meetings and sub-
division meetings convened by divisional and branch commanders.

Communications between uniformed and CIB personnel in police
forces are often rather strained. Uniformed officers tend to consider their
fellow officers in specialized plainclothes units as being somewhat elitist
and remote. In the NRPF, an attempt has been made, with some success, to
minimize this by attending at each other's briefings and rotating uniformed
staff into the CIB unit. It is important that measures to increase mutual
understanding and co-operation be continued and expanded.

While centralization and specialization increase expertise and per-
formance, they may also lead to elitism and poor communications. During
the first 10 years of its existence, the NRPF was very decentralized with
specialized units such as Fraud and Youth at the divisional level, and with
little automation it was difficult to communicate and function efficiently.
During its second decade, there were great changes in the Force's admin-
istrative side, with increased centralization, specialization and civilian-
ization. More recently, there has been considerable improvement in com-
puterization and records management with the 1988 implementation of the
On-Line Records Access Computer For Law Enforcement (ORACLE)
system. As well, more attention is being paid to delivery of services by the
administrative side of the Force, in an effort to be responsive to the polic-
ing needs of the many communities in this large region. The Force's di-
visional boundaries and patrol districts have been tailored to coincide, as
much as possible, with the boundaries of the individual municipalities. A
district-policing concept has been designed with the intention of familiar-
izing patrol officers with their assigned areas, with use of foot patrols to in-
crease contact with the community. This should be further developed into
the community-based approach required by the Police Services Act 1990.

202 Amalgamation/Organization

In the past few years there has been a movement toward a return to
the police/community partnership concept that existed before cruiser patrols
and automation replaced the more intimate relationship between the public
and the neighbourhood police officer. This community-based policing is the
concept called for by the Police Services Act, 1990. It is now generally
accepted amongst policing authorities that community-based policing pro-
vides the best chance of successfully meeting the challenges of the 1990s.

In the past, the management system of the NRPF has not included
strategic planning to critically analyze the Force's operations and facilities,
with a view to identifying changes necessary to improve its efficiency.
Since 1977, it has had a Planning Unit, and in recent years the Unit has
acquired university-educated staff and has produced high-quality reports, but
they have tended to react to perceived problems rather than to plan for the
future. However, late in 1991, the Deputy Chief— Field Operations, com-
menced a strategic planning operation to examine all aspects of delivery of
services to the public. In December 1991, it issued a report entitled
''Policing in Niagara — Planning for the Nineties" which contains ambitious
and far-ranging proposals for the future. These plans quite properly include
community-based policing.

I conclude that amalgamation of the municipal forces which now
constitute the NRPF did not, in its early stages, result in a cohesive
organization. This was due to several factors. The enthusiasm of the
provincial government for regional government, and its belief that amal-
gamation of local police forces was the catalyst that would lead to mu-
nicipal regionalization, led it to set a police amalgamation deadline that did
not allow for adequate planning. Unlike the only previous police amal-
gamation, that of Metropolitan Toronto, there was no dominant police force
with the proper technical and administration systems to provide a base for
the management of the new Force. The formidable task of planning for the
new Force was turned over to a small group of professionals, without ex-
perience in a large force, working on a part-time basis while carrying on
their other duties, who had no previous model to follow, who had no stud-
ies of the local municipal forces to refer to, and who did not receive
adequate input and assistance from the OPC. The 1 1 forces to be integrated
were of disparate sizes, ranging in membership from five to 134, with
different training, experience, equipment and facilities. Generally speaking,
the members of the various forces were unenthusiastic about an amal-
gamation in which they felt they would lose their identity and they were
conscious of the fact that the Ontario Police Association (OPA), which
represented them, opposed the measure. Integration was greatly inhibited by

Amalgamation/Organization 203

the OPA's success in obtaining legislation guaranteeing job security
regardless of qualification, and preventing the non-consensual transfer of
any Force member more than five miles from the member's former location.

It is interesting to note that counsel for the Association in his
submission to the Inquiry suggested that an orderly rotation through the
major detachments of the NRPF early in a constable's career would be
beneficial to the constable and the Force. I concur.

Attrition has reduced the parochialism that at first caused members
of the old municipal forces to withhold loyalty to the larger amalgamated
Force. Over the years, many of the problems mentioned have been elim-
inated or at least diminished. With a new Chief who has a reputation for
innovation and planning for the future, the question in the terms of re-
ference as to whether amalgamation has resulted in a cohesive police
organization that efficiently renders a service to the public may now be
answered in the affirmative.

204 Amalgamation/Organization

RECOMMENDATIONS

It is recommended that:

7. Planning for amalgamation of municipal police forces should

recognize the diverse interests and backgrounds of the forces
involved. Outside expertise from the academic, business and public
sectors should be made available to police personnel organized in
study teams. Planning for the new Force's human resources should
be given as much attention as its structure and management.

2. The management pattern in the NRPF, developed during its form-
ative years', now needs an innovative management philosophy to
meet the changes in public attitudes that have occurred in the past
20 years. This should include an interest in seeking fresh ideas,
interaction with other ranks, visible leadership and improved
relations between the Police Association and management, between
the Board and management, and between the Force and the public.

3. An improved internal review system reporting to the Chief at reg-
ular intervals should be established to ensure that internal problems
are resolved before they become critical.

4. Consideration should be given to seconding police personnel for
short periods to other forces, and to rotating them amongst other
divisions within the NRPF, as part of career development and to
counteract any tendency toward allegiances to a division rather
than to the Force as a whole.

5. Increased centralization within the Force should not be allowed to
interfere with increased community-based policing.

THE CRISIS OF EARLY 1987
THE BATTLE FOR CONTROL

In January 1986, three new members of the Board were appointed by the
province. They were Denise Taylor, Robert Hanrahan and Robert Keighan.
They joined William Dickson and Robert Saracino, both of whom had been
appointed by the Region. The Board elected William Dickson as chairman,
and Mrs. Taylor as vice-chairman.

Mrs. Taylor had heard rumours of problems within the Force, and
took her appointment very seriously. She had no background in policing
matters, apart from what she had learned as a St. Catharines council
member. Although the Municipal Police Authorities (the umbrella assoc-
iation of Ontario Boards of Police Commissioners) offered information
programs for new commissioners, she did not attend these, but did take
steps to educate herself about the workings of the Niagara Force. She met
with a number of political and legal figures in the area and obtained their
views about the state of the Force, and went on personal inspection tours
of the Force's operations and facilities. Superintendent James Moody was
assigned to arrange these tours and conducted some of them. Almost from
the start, she heard rumours of misconduct by members of the Force.

Mrs. Taylor's approach to her duties and her views on the way the
Board meetings should be conducted soon led to friction amongst Board
members. She actively pursued a policy of "openness and accountability"
which clashed with the existing procedures for the handling of Board bus-
iness. Her aggressive style, together with her willingness to seek assistance
from the media which was always pressing for more openness, soon result-
ed in confrontations at Board meetings. In her notes, she referred to past
Niagara Police Boards as being "Old Boys Clubs."

Throughout the spring of 1986, Mrs. Taylor continued to question
community members about the Force. William Reed, a prominent criminal
lawyer, told her about factions in the Force which were suspicious of each
other in relation to "office politics, promotions, and assignments and
transfers, and things of that nature."' He referred to the Harris or Niagara
Falls faction which he identified as including Harris, Shoveller, Moody, and
Leigh and the Gayder or St. Catharines faction which included Gayder,
Parkhouse, Gittings and Swanwick. He also told her of rumours that the
Force sometimes conducted unauthorized wiretaps, and that senior members

Inquiry transcript (Public), vol. 141 (Jan. 11, 1990):70.

206 Th- Crisis of Early 1987 - The Battle for Control

of the Force took police vehicles home. That spring, Mrs. Taylor ap-
proached Constable Jacklyn Davey about her work relating to domestic vio-
lence. Staff Sergeant Peter Gill, Davey 's supervisor, questioned Davey
about the nature of her discussion with Mrs. Taylor, and Chief Gayder later
spoke to Mrs. Taylor and told her she should not meet with officers without
his prior approval. Mrs. Taylor referred to this as one of the causes of the
deterioration of her relationship with Gayder. In her evidence, she states she
was unaware that a bulletin of the Municipal Police Authorities warns that
such meetings are improper.

In the spring or early summer of 1986, Mrs. Taylor met with Ser-
geant James Baskerville, the Court Officer, to tour the court facilities and
learn about court procedure. Thereafter, they continued to have "quite a few
meetings" throughout 1986, but it apparently was not until later in the year
that Baskerville told her of the various rumours he had heard.

In July of 1986, Mrs. Taylor asked Gayder to reopen the investi-
gation into the Lorenzen matter, and Gayder said he would check with the
Crown and report back to the Board. Before he could do so, the day fol-
lowing her request, Mrs. Taylor, in an interview on CBC Radio announced
she was asking that the investigation be reopened. This caused further
friction between Mrs. Taylor and other Board members and the Chief.

During the summer of 1986, a dispute arose between Gayder and
the new Board concerning Mrs. Parnell's salary. Gayder's position was that
the previous Board had undertaken to raise her salary in 1986, but the cur-
rent Board was unwilling to do so, and some members felt it was improper
for Gayder to be lobbying them on the subject. Mrs. Taylor testified that
this also contributed to the breakdown of her relationship with Gayder.

In August, 1986, the Standard pubVished an article alleging rampant
nepotism in the NRPF. At that time, the Force was in the midst of another
hiring session and one of the applicants was Gayder's son. When Gayder
appeared to be pressing for his son's acceptance at the December 22 Mon-
itoring Committee meeting, a further confrontation developed between Gay-
der and Mrs. Taylor.^

On August 7, Mai Woodhouse, a regional councillor, presented a
notice of motion to the Council calling for a public inquiry into the NRPF,
citing a number of allegations, including the McAuliffe wiretap allegations.

See p. 7.

The Crisis of Early 1987 - The Battle for Control 207

the nepotism articles, and the Lorenzen gun allegations. The motion itself
was not brought on for several weeks while a package of supporting mater-
ial was circulated. This included a copy of the 1984 OPC Investigation
press release Woodhouse had received from Mrs. Taylor, eight news articles
calling for an inquiry, an October 1985 news article about VanderMeer's
problems with C, the nepotism article, an October 8, 1985, memo from
Bob Rae, the leader of the Opposition, to Premier Peterson about an NRPF
inquiry, and two letters from MPP Mel Swart outlining complaints about the
Force. Mrs. Taylor did not encourage the call for an inquiry at that time,
considering that it was premature. When the motion came before the Reg-
ional Council, it was defeated.

Sometime in early September, Mrs. Taylor met again with Basker-
ville. Mrs. Taylor stated in her will-say that Baskerville said "I'm going to
tell you everything now." They discussed possible wrongdoing in the Force,
and allegations of corruption at senior levels. Gayder, guns, DeMarco, and
officers' purchase of Force vehicles were mentioned. He told her of his sus-
picions that a suicide gun had disappeared, and that when he had asked
about it, he was advised the Chiefs office was involved, and not to inquire
further. He also advised her not to go to "Toronto" with her suspicions, as
she had suggested, because "you can't trust people in Toronto" and the
word would get back to the NRPF. He gave her Pinocchio's real name, and
intimated Pinocchio could give her more information. Baskerville testified
that, apart from rumours he heard from other police officers, his one identi-
fiable source of information was Pinocchio, and that he told Mrs. Taylor
that his information was "the rankest form of hearsay." Mrs. Taylor, on the
other hand, states that Baskerville told her "I was there, I'm telling you it's
true," and she considered that this was a significant new development be-
cause for the first time she was getting "first hand" information. She came
away from the meeting convinced that there were serious problems in the
Force.

Gayder testified that in the early fall he received an official com-
plaint from the administrator of the Police Association concerning Mrs.
Taylor meeting with police officers without directions from the Chief's
office, and that he spoke to Mrs. Taylor about this several times, but she
ignored it. He then spoke to Mr. Dickson, the Board chairman, who con-
tacted the OPC and asked them to send a representative to the next Board
meeting to outline the duties and responsibilities of police commissioners.
As a result, on September 11, 1986, John McBcth and Stan Raike of the
OPC attended a Board meeting. During the discussion of a commissioner's
responsibilities, in answer to a question as to what would happen to some-

208 The Crisis of Early 1987 - The Battle for Control

one who refused to follow the guidelines, Mr. McBeth made a remark about
the possibility of the Minister not reappointing them. Mrs. Taylor took the
remark to be aimed at her. Mr. McBeth was to be called as a witness, but
died before he was able to testify. Mr. Raike testified that someone (he
thought it was Mrs. Taylor) asked the question, and that Mr. McBeth had
replied in a "lighthearted, jovial" manner that he supposed that member
"might not be reappointed when their time ran out." Although there is no
evidence that Gayder was connected with the statement, Mrs. Taylor
recorded in her notes that this was a very serious attempt to intimidate her,
and that Gayder was involved. Similarly, she recorded an incident at a
meeting when "the Chief came up behind me and then leaned over me and
said in a very low voice, 'So you were berry picking yesterday,' and when
she agreed she had been, he said, 'Yes, I have spies out there.' " She said
she felt this was "a subtle attempt to try to intimidate me."^ There is no
doubt that these incidents further alienated her from Gayder.

On September 29 and October 2, 1986, Mrs. Taylor accompanied
Constable William Gill on his cruiser patrol. Mrs. Taylor states that on the
second trip, she asked Gill if he had heard anything about undercover in-
vestigations of infiltration of the Force by organized crime, and that he
"screeched his cruiser to a stop," and pulled into the 7 Eleven parking lot.
He ordered her out of the cruiser and took her to the rear and said to her:
"Lady ... if you don't stop asking the questions you're asking around here,
some night I'm going to find you in an alley, dead. Now get back in the
cruiser." Gill's evidence was that, being distracted by her questions, he had
to slam on his brakes to avoid another car. He told her he was not inter-
ested, he was just supposed to drive her around, and if she kept on asking
questions, he would return to the station. He then pulled into the 7 Eleven
parking lot to get soft drinks. While standing outside drinking pop, Mrs.
Taylor said she thought she was being followed, and he told her that if she
was followed, she should stay out of alleys, otherwise she would get killed
and he "would have to come in there to get her." Whatever was actually
said, it is apparent that Mrs. Taylor felt she was being warned to stop ask-
ing questions. In a will-say she prepared for VanderMeer in April 1987, she
stated: "By October 1986, 1 was being warned by numerous people that my
life was in all likelihood in danger."

Mrs. Taylor testified that, early in the fall of 1986, she began having
periodic informative discussions with Deputy Chief Shoveller, and that Gay-
der appeared to resent this. However, when he remonstrated with her and

Will-say (April 6, 1987): 10.

The Crisis of Early 1987 - The Battle for Control 209

said it was damaging morale, she insisted that she be allowed to continue
the meetings, and he reluctantly agreed.

Mrs. Taylor's husband, a medical doctor, also received a warning
from a patient that Mrs. Taylor's safety might be endangered. On October
14, 1986, Mrs. Taylor approached Reed, the lawyer who had earlier told her
about the factions in the Force, and advised him she felt her life was in
danger. He recommended that she meet Sergeant VanderMeer, and offered
to arrange a meeting. On October 17, Mrs. Taylor met VanderMeer and
Constable Thomas Prentice, and she related the allegations she had received
about the Force and her own safety. She understood VanderMeer would be
investigating her concerns, and thereafter met with him at her home every
two weeks or so to share information they were each receiving.

Sometime in October, VanderMeer and Onich approached CIB In-
spector Peter Kelly concerning the rumoured existence of a closet con-
taining seized guns located near Gayder's office. VanderMeer suspected
they were stolen from the Force and suggested they take steps to get into
the closet, but apparently the matter went no further at that time.

On October 22, Mrs. Taylor met Gerry McAuliffe in Toronto. They
discussed Gayder and his guns. Shoveller's merits, Baskerville's concerns,
the McBeth incident, and illegal wiretaps. According to Mrs. Taylor's notes,
McAuliffe warned her to be careful of VanderMeer: "watch him — danger-
ous — jumps to conclusions." She testified that VanderMeer had similarly
warned her about trusting McAuliffe.

Also on October 22, Mrs. Parnell reported to the regular senior
officers meeting a complaint from Mrs. Ellis about her dissatisfaction with
the way the Force was handling her complaints against her husband, the
Force mechanic. Mrs. Ellis had threatened to go to the media about her hus-
band's doing repairs to senior officers' private vehicles in the Force garage
unless her complaints were resolved. Gayder assigned the matter to the
Complaints Bureau for investigation, but Shoveller left the meeting with the
impression that he, as Deputy Chief, Administration, was to follow up on
the matter. The investigation he launched is described below.'*

Mrs. Taylor had talked to Jim Bradley, a local MPP, on earlier oc-
casions about her concerns, and in late October she returned to him and told

See p. 223.

210 The Crisis of Early 1987 - The Battle for Control

him she was getting serious allegations about the Force, and "didn't know
where to turn." He agreed to set up a meeting with the Solicitor General.

In early November, Mrs. Taylor met Pinocchio through her husband.
Pinocchio had been mentioned by Baskerville as a source of information.
Mrs. Taylor was not aware of Pinocchio's reputation for lack of credibility,
and his allegations increased her concern about corruption in the Force. She
arranged a meeting between Pinocchio and a Standard reporter, to whom
Pinocchio repeated his allegations. She and VanderMeer met Pinocchio
again in late November, and VanderMeer suggested that Pinocchio should
meet Peter Moon. This meeting did not take place until January.

On November 2, 1986, Mrs. Taylor discussed with her neighbour,
John Crossingham, her problems with Gayder, and his allowing senior
officers to use police cars for private purposes. Her notes make it clear that
there was a serious breakdown in her relationship with Gayder; that she
considered he had lied to the Board, and that she was considering "actions
under Police Act.'' She confronted Gayder with the issue of the police cars
at a Board meeting, and Mrs. Taylor's notes indicate she stated: "... if I hear
of other similar situations, I personally will view them as a serious breach
of duty." At the same meeting, Gayder complained of the way Mrs. Taylor
had dealt with the need for new typewriters in various areas of the Force,
and that she had obtained information directly from Force personnel, and
raised the issue at the Board meeting without first speaking to Gayder on
his return from a short absence.

On November 7, 1986, a Routine Order was issued, over Gayder' s
signature, for the transfer of 14 officers. One of these was Inspector Kelly,
head of the St. Catharines CIB, and rumours circulated that his transfer had
been engineered by Mrs. Parnell, Gayder's secretary.^ Kelly's replacement
was Inspector Bruce Chambers. VanderMeer was very unhappy about
Chambers, and expressed his feelings freely throughout the department.^

On November 16, 1986, Mrs. Taylor made a note: "phones tapped?
— last month — clicking noises on my line." She also noted that Mai Wood-
house had the same problem. At the December 4 Board meeting, the OPP
report, finding no evidence of illegal wiretaps by the Force, was provided
to the Board. At the same meeting, Gayder requested that the Board do its

- Sec p. 170.
'See p. 183.

The Crisis of Early 1987 — The Battle for Control 211

annual audit of the Special Account for which he was a signing officer.
Mrs. Taylor and Mr. Dickson were designated to conduct an audit on De-
cember 11. Mrs. Taylor later cancelled the appointment and never re-
scheduled it.

Another incident that caused Mrs. Taylor further concern about the
Force occurred on the day before Christmas, and it was investigated by the
Commission investigators. On the afternoon of December 24, Pinocchio and
his wife were passengers on a local bus going to Lincoln Mall. An alter-
cation took place between Pinocchio and another male person with an ex-
tensive criminal record, and Pinocchio concluded his life had been threat-
ened. He telephoned the NRPF from the mall, and the officer in charge of-
fered to send a patrol car, but Pinocchio said he and his wife wanted to
complete their Christmas shopping and would be home by 9 p.m. It is pos-
sible that the dispatcher who took the call, and who was familiar with
Pinocchio' s reputation for credibility, did not sound too impressed about the
death threat, because Pinocchio then phoned Mrs. Taylor to complain. Mrs.
Taylor's evidence is that she phoned Staff Sergeant Hill, who was the dis-
patcher's supervisor, to complain of inaction, and was told that in these
cases one has to assess the credibility of the complainant. Mrs. Taylor was
very upset by this, and said she would be speaking to a more senior officer.
Shortly after nine that night, a police officer went to Pinocchio' s home to
interview him, and later the dispatcher, the staff sergeant and the alleged
threatener were interviewed, and it was concluded that no action should be
taken. Neither Pinocchio nor Mrs. Taylor felt the matter had been properly
handled. Mrs. Taylor consulted VanderMeer and Moody about the incident.
Hill complained to the Police Association about the way he had been treated
by Mrs. Taylor.

On December 22, 1986, the Monitoring Committee meeting de-
scribed in Part I of this report marked the beginning of what was probably
the most critical period in the history of the NRPF. The facts and evidence
concerning what followed that meeting have been set out in Part I. Running
parallel to those events was VanderMeer's investigation of the Force garage.
When Mrs. Ellis's complaint about her husband doing private work on se-
nior officers' cars came up at the October 1986 Board meeting, Gayder as-
signed it to the Complaints Unit. However, Shoveller, as Deputy Chief Ad-
ministration, considered it fell within his jurisdiction, and went to talk to
Sergeant Locke, who was in charge of the garage.

212 The Crisis of Early 1987 - The Battle for Control

Shoveller learned about Mrs. Pamell's paint job^ when he asked
Locke about garage work done for senior officers. Locke delivered the
Checkpoint invoice for the paint job to Shoveller by mid-November, which
stated it had been "paid by cheque," and Shoveller states that he was then
satisfied that Mrs. Parnell had paid for the work. He testified that he
nevertheless wanted the whole matter of private repairs looked into, and in
early December asked VanderMeer to investigate, and gave him the names
of Superintendent Swanwick and Mrs. Parnell as examples of private work
being done by Ellis, the Force mechanic.

There was some confusion in the evidence as to what names were
mentioned, but whatever was said, it was evident that it was the Parnell
paint job that was the subject of VanderMeer' s investigation. It would seem
that what was uppermost in many minds was the possible involvement of
Gayder in arrangements for the repair of his secretary's car in the Force
garage at Force expense, rather than an investigation of the garage operation
in general. The only written report was a memo which VanderMeer de-
livered to Shoveller on January 10, and this dealt exclusively with the
Parnell paint job. VanderMeer' s notes state that he was still pursuing a
"possible fraud." It was apparent that they did not want knowledge of the
investigation to come to Gayder.

On January 5, 1987, Shoveller returned from vacation and raised a
concern about the hiring process in which Gayder's son was included, fol-
lowed by the confusing meetings in this regard which have already been
described.^

On January 13, VanderMeer telephoned the Royal Bank Head-
quarters in Toronto to check the source of the funds for the paint job,
mentioning Mrs. Parnell's name and stating he was conducting a "strictly
secret" investigation of her. The Royal was not Parnell's bank, but it was
the bank used by the Force Special Fund for which Gayder was the sig-
natory. Although Shoveller stated he was satisfied by the production of the
Checkpoint invoice that Parnell had paid for the paint job, VanderMeer
testified that Shoveller had mentioned the Special Fund as one of the pos-
sible sources of the paint job payment.

^ See p. 90.
" See p. 7.

The Crisis of Early 1987 - The Battle for Control 213

On January 16, Gayder, having been told about the Royal Bank in-
quiry, asked Deputy Chiefs Shoveller and Parkhouse whether they had any
knowledge of VanderMeer's secret investigation of Parnell. Both denied it.
Gayder ordered Inspector Marriott, his executive officer, and Sergeant Mc-
Gloin, the head of the Complaints Unit, to find out the reason behind Van-
derMeer's investigation. VanderMeer told them Shoveller was involved. On
January 21, Marriott and McGloin interviewed Shoveller, who stated he had
ordered VanderMeer to investigate repairs of private vehicles in the Force
garage. He stated that the instructions were given "within the last month"
as a result of Mrs. Ellis's allegations brought up at the October senior
officers meeting, and Gayder's instructions to investigate them. He was not
aware that Gayder had assigned the investigation to the Complaints unit on
October 22. On January 22, Gayder sent Shoveller a memo referring to a
phone conversation concerning a misunderstanding of Gayder's instruct-
ions, and asking for a detailed report "regarding all persons that have been
the subject of Sergeant VanderMeer's enquiries." Shoveller replied on Jan-
uary 30, 1987, with a three-page memo, the tone of which was rather dis-
respectful and indicated considerable discord between the Chief and his
Deputy. It was on the morning of January 30 that Shoveller met Vander-
Meer and Mrs. Taylor and Police Act charges against Gayder were dis-
cussed.

On January 8, 1987, Mrs. Taylor was elected Board chairman. She
had read the Peter Moon article with interest, and that night VanderMeer
took her to meet Stephen Sherriff, "so she could hear it from the horse's
mouth." Moon had learned of many of the allegations mentioned in the
Globe and Mail article from Sherriff. The first matter discussed was her
concerns about the John Gayder hiring matter. Sherriff told her it might
amount to corrupt practice under the Police Act, and then turned to his con-
cerns about the Force. Mrs. Taylor's notes of the discussion indicate she
was inquiring about further incidents of impropriety involving Gayder, and
that she would speak to Shoveller in that regard. Her notes conclude with
the words, "Feel stymied — need help — ... I turned to the media as never
before."

Shortly thereafter, VanderMeer arranged for Moon to meet Mrs.
Taylor at her home. Mrs. Taylor expressed concern that Gayder might be
a criminal with respect to guns. Moon testified: "And she didn't want him
to be Chief of Police ... She didn't feel he was an appropriate Chief because
of his involvement with weapons and that he wasn't necessarily the admin-
istrator that she wanted in charge of the Force." A further meeting took
place at the St. Catharines Holiday Inn, with Mrs. Taylor, VanderMeer,

214 The Crisis of Early 1987 - The Battle for Control

Moon, and Pinocchio present. Allegations of corruption in the Force were
discussed, and Pinocchio related various vague allegations against NRPF
members. Neither Moon nor VanderMeer "put much stock" in Pinocchio's
allegations and believe they told Mrs. Taylor so, but she does not recall
this.

On January 15, Mrs. Taylor went to see the Solicitor General and
told him of her concerns, including the attempts to intimidate her, and the
problem that she could not pass the information to the Board because "I
concluded they could not be trusted with the information at this point," nor
to the Chief because "He had lied to me."

On January .16, at the morning meeting of senior officers, the prob-
lems between VanderMeer and Chambers were discussed, and Parkhouse
recommended VanderMeer' s transfer to the Niagara Falls detachment. A
Routine Order for the transfer was issued January 16, effective January 26.
On January 19, Assistant Crown Attorney Andrew Bell telephoned Mrs.
Taylor to express his concern about the transfer. On her suggestion, he
wrote Gayder with a copy to the Board. In her first draft of her will-say
prepared for the IIT, Mrs. Taylor's states: "... conditions deteriorated very
rapidly, at this point of time, within the Police Force. Sergeant VanderMeer
was given notice that he was to be transferred to the Falls, it appeared, and
Deputy Shoveller told me of the situation that was developing with respect
to the investigation of Mrs. Parnell and of the fact that ... the Chief of
Police was attempting to intervene in that investigation, and of his grave
concerns with respect to that matter."^

On January 26, Gayder again spoke to Mrs. Taylor about her fre-
quent meetings with Shoveller, and shortly after spoke to Shoveller.
Shoveller explained that there was little he could do when approached by
a Board member unless directly ordered not to speak to her. Gayder did not
give any explicit order, and in spite of Gayder's obvious displeasure, the
meetings continued.

On January 27, Staff Sergeant Newburgh told Shoveller he sus-
pected his telephone had been tapped, and Shoveller suggested he speak to
Mrs. Taylor. Newburgh suspected that Gayder was involved, and as already
noted, Mrs. Taylor had also had suspicions of wiretaps. Her conversation
with Newburgh added fuel to the fire that was damaging the relationships
amongst those responsible for the administration of the Force. Mrs. Taylor's

Will-say (April 6, 1987):23.

The Crisis of Early 1987 - The Battle for Control 215

notes of a meeting that day with her neighbour, John Crossingham, include:
"what did Waterloo do wrong," "develop Police Act charges — Shoveller,
Andrew Bell," "must develop nepotism issue," "puts guns in own name ra-
ther than destroying them," "N.B. Lying makes it very serious." "Waterloo"
presumably refers to the very serious problems the Waterloo County Board
encountered when it ended up with two police Chiefs, after it fired its
Chief, hired another, and, when the former Chief successfully challenged
the manner in which he had been fired, was ordered by a court to reinstate
the original Chief. It is apparent that by this time Mrs. Taylor had decided
to get rid of Gayder.

In her first will-say, prepared at VanderMeer's request, Mrs. Taylor
stated: "I then determined that it was essential to remove the Chief of Police

from office, even temporarily, in order for a thorough in order for the

interference that was taking place to be put to a halt, and in order for
officers to be able to investigate freely allegations surrounding both the
Chief of Police and other members of the Police Force without inter-
ference."'°

On the morning of January 30, Shoveller and VanderMeer met with
Mrs. Taylor at her home and Mrs. Taylor discussed laying Police Act
charges against Gayder relating to the hiring events. Shoveller advised Mrs.
Taylor to first confront Gayder with the allegations and give him an oppor-
tunity to explain before laying charges, but she did not do so.

On January 31, Mrs. Taylor met Crossingham and William Dunlop,
a lawyer familiar with the Police Act whom Crossingham had recom-
mended. She told Dunlop of her concerns, and that she felt there were
sufficient grounds to charge Gayder. She testified that he confirmed that
view, and that she relied entirely on Dunlop who persuaded her that she had
a moral obligation to lay charges.

On February 3, Gayder met with Schultz of the OPC regarding his
problems with Mrs. Taylor, and Schultz said he would speak to the OPC
chairman with a view to arranging a hearing under section 58 of the Police
Act which gave the Commission power to investigate the administration of
a police force. Gayder was suspended before any such investigation was
arranged.

Will-say (April 6, 1987):23-24.

216 The Crisis of Early 1987 - The Battle for Control

The "crisis" culminated on February 5 with Gayder's suspension.
The Board met that morning, in accordance with Gayder's request for a
special Board meeting to "clear the air," and Gayder gave a long pres-
entation about the hiring process and what had transpired at the recent
hiring sessions. He was not questioned, and the Board withdrew and met in
private with Dunlop. Mrs Taylor told the other members of her intention to
lay charges against the Chief, and Dunlop advised them that, once the
charges were laid, it was their duty to suspend Gayder as Chief.

The events already described in Part I of this report culminating in
Gayder's suspension, followed.

On February 23, Dunlop, the Board's lawyer, spoke to Ian Roland,
Gayder's lawyer, and informed him that there was going to be a "host of
allegations" against Gayder, and that, even if the charges were dismissed,
the Board would not permit him to return to active duty. There was a dis-
cussion of the above-mentioned problems that plagued the Waterloo Reg-
ional Force over its firing of its Chief. Possible settlement based on Gay-
der's retirement on pension was discussed.

A number of new charges against Gayder were drafted, and Gay-
der's evidence is that, faced with the cost and strain of defending them, he
took early retirement.

Mrs. Taylor had emerged from the power struggle as the victor. It
is apparent that the hiring charges were a means to an end; that is, to re-
move Gayder from control so that her other suspicions could be investi-
igated, with the expectation that evidence to support real charges, such as
theft and breach of trust, would result. These would have retroactively
justified Gayder's suspension, followed by his anticipated resignation when
faced with the charges, and this would avoid the problems encountered by
the Waterloo Board over firing their Chief.

I am satisfied Mrs. Taylor sincerely believed James Gayder was dis-
honest and that it was her duty to see that he was removed as Chief. By
establishing herself as the "lightning rod" for complaints, rumours and
allegations almost immediately following her appointment to the Board, she
was soon convinced that there was something fundamentally wrong with the
Force, and that since no one was doing anything about it, it was up to her
to see that it was fixed. Her inexperience in such matters, and her lack of
appreciation of the unreliability of "barrack room rumours" led her into
actions that damaged the reputation of the Force. It was improper for the

The Crisis of Early ]987 - The Battle for Control 217

Board chairman to meet privately with Force and non-Force members about
rumours and allegations. These witnesses should have been referred to the
Chief. If the allegations were of wrongdoing by the Chief, the Board should
have been advised, and the allegations should have been referred to the
OPC for investigation. (In the future, when my recommendation at the end
of Part II for establishment of a provincial unit for such investigations is
implemented, the reference would be to that unit.) Further, it was funda-
mentally wrong for a member of the Board, and particularly for the chair-
man, to be meeting with Force members in clandestine discussions aimed
at displacing the Chief. Having VanderMeer present was bad enough. It was
made more so by requesting the Deputy Chief, the Chiefs assistant and po-
tential successor, to be present to take part in discussions about laying
charges against the Chief. Regardless of her mistrust of the Board, if Mrs.
Taylor thought there were grounds for dismissing the Chief, an in camera
Board meeting was the only place the matter should have been discussed,
and that was the only forum that could legally take any required action. As
well, there was no great urgency about suspending Gayder, and it was im-
proper and unfair for Mrs. Taylor to rush through a matter as critical as the
suspension of a Chief while one of the Board members, considered to be
a supporter of that Chief, was absent on vacation.

Shoveller's role, as Deputy Chief, was also improper. A Deputy
Chief should not be meeting with a junior officer and a member of the
Board of Police Commissioners, at the Board member's home, in dis-
cussions that undermine the authority of his Chief. He should have made
it clear to Mrs. Taylor that such discussions were improper, and should
have ordered VanderMeer to have no further discussions with Mrs. Taylor
about Force investigations, including the Parnell matter. In addition, of
course, as the one most likely to benefit from Gayder's departure, his
participation in those discussions was self-serving. Having raised the ques-
tion of Gayder's son being improperly on the list for the January hiring
interviews, and having suggested that VanderMeer should investigate
whether Gayder might have improperly used the Special Fund to pay for the
Parnell paint job, he should have presented any report he felt was relevant
to the Board as a whole, and refused to participate in private discussions
about such matters even though invited to do so by the Board chairman.
Mrs. Taylor had been discussing her concern about wiretaps with Shoveller
earlier in January, and had recorded in her notes her concern that Gayder
was covering up illegal wiretaps. When Shoveller sent Newburgh to Mrs.
Taylor with his concerns that his telephone was being tapped, it added fuel
to her suspicions and further undermined Gayder. If Shoveller thought there
was any substance to the matter, he should have instigated a proper in-

2] 8 The Crisis of Early 1987 - The Battle for Control

vestigation. I can only conclude that Shoveller, whether because he gen-
uinely believed it was in the interests of the Force to get rid of Gayder, or
because of his own ambitions, co-operated in the development of the events
that led to Gayder's suspension.

It must have been obvious to Chief Gayder that, for months before
his suspension, he and Mrs. Taylor were on a collision course. Nevertheless,
he failed to recognize that it was his duty to divorce himself completely
from his son's application for employment by the Force. At the December
22, 1986, meeting of the Monitoring Committee, he had urged that "al-
ternates" from the last hiring session be re-interviewed without re-testing,
and when he indicated that his son was one of the alternates, a "heated dis-
cussion" followed, in which he was told he had a conflict of interest and
Mrs. Taylor told him he was "out of order." In spite of this, he appointed
Deputy Chief Parkhouse as chairman of the Selection Board which would
recommend who was to be hired. Parkhouse was known to be a Gayder
family friend. When Shoveller returned from vacation on January 5, 1987,
he told Gayder that the December 22 meeting had ruled out two of the "al-
ternates," one of whom was Gayder's son; Gayder disagreed and appealed
to Hanrahan. Although Hanrahan did not agree with Gayder's interpretation
of the ruling, and said he would speak to Keighan and Mrs. Taylor, Gayder
instructed Parkhouse to proceed with the interviews. Thereafter, Gayder
continued to involve himself. At their January 20 meeting, the Board re-
jected the recommendation of the Selection Board that 12 candidates, in-
cluding Gayder's son, be hired and directed the Selection Board to re-
convene and re-interview certain candidates. When the Selection Board re-
ported to the Board on January 27, recommending hiring of the same can-
didates as before, including Gayder's son, the Board decided not to hire
anyone. Gayder attempted to speak, and was told to "shut up" by Mrs. Tay-
lor. In the face of all this, Gayder requested a special meeting to discuss the
matter further. That meeting took place on February 5. After Gayder ex-
plained his position at some length, the meeting was adjourned for an in
camera session. When it reconvened, Mrs. Taylor laid charges against Gay-
der, and he was suspended by the Board.

Similarly, Gayder should not have become involved in the matter
of the Parnell paint job. Upon learning of VanderMeer's call about Parnell
to a bank head office, he should have done some investigation of the back-
ground through the chain of command rather than immediately asking Mrs.
Parnell for an explanation, thus avoiding the impression that he was
"tipping off a suspect. Instead of advising her that she should lay a
complaint, thus giving the impression that the Chief was siding with her, he

The Crisis of Early J 987 - The Battle for Control 219

should have referred her to the Complaints Bureau for advice. By sending
two officers to obtain an explanation from Shoveller of his involvement,
rather than speaking to him personally, he further damaged an already
strained relationship.

These and other instances of poor judgement on the part of Gayder,
including his casual attitude regarding guns, contributed to the crisis of
early 1987, and to the rumours that damaged the reputation of the Force.

THE SPECIAL FUND
INVESTIGATION

The source and purpose of the Special Fund has already been explained.'

On January 7, 1987, Shoveller and VanderMeer discussed the pos-
sibility that the Parnell paint job might have been paid out of Force
resources and, according to VanderMeer, Shoveller suggested that the
source might be the Special Account. The next day Mrs. Taylor made a
note under the heading "Cor-Shoveller" about the possibility of wrong-
doing, Gayder and the Special Account. VanderMeer testified that he con-
sidered the account as one of the possible sources of the paint job funds
and, on January 13, he telephoned the head office of the Royal Bank, the
bank in which the Special Account was kept.

On February 12, following his appointment as Acting Chief, Shov-
eller requested an audit of the Special Account before taking it over. No
mention of possible wrongdoing was mentioned. The Board agreed, and
referred the matter to Quattrini, the Board Administrator. Quattrini asked
Shoveller for suggestions as selection of an auditor, and Shoveller referred
him to VanderMeer. VanderMeer suggested Donald Holmes of the firm of
Lindquist Holmes, which was then the forensic branch of Peat Marwick.

Both Mrs. Taylor and Shoveller testified that they had no suspicions
concerning any misappropriation of funds from the Special Account, and
had not intended a "forensic audit." However, Holmes wrote Quattrini on
February 18: "I am pleased to respond to your inquiry concerning the pos-
sibility of retaining us for an investigative accounting service .... You feel
your need is for a review that is more investigative than it is audit
oriented."

In his evidence. Holmes explained that forensic accounting includes
"the assembly of accounting evidence for litigation," and that a forensic
accountant goes beyond a normal accountant in his investigation by doing
"an investigative review." He agreed that he had clearly received a sug-
gestion that there was cause for concern, but without any indication as to
what the concern was.

His instructions were to examine disbursements only for the period
from January 1 , 1984 (the date Gayder became ChieO to February 23, 1987,

See p. 110.

222 The Special Fund Investigation

which was after Gayder's resignation. It was explained that this period was
selected because of the expense of going back further in time. However, in
the light of the evidence heard during this Inquiry, I can only conclude that
the "forensic audit," rather than an ordinary accounting audit, was called for
in furtherance of the investigation of Gayder.

Holmes' report was delivered to the Board on April 16, 1987. It
found no improprieties, but recommended changes in the guidelines as
mentioned in my earlier comments on the Special Fund. A criminal
investigation of the Special Fund had been on the agenda for the IIT, but
had been deferred until Holmes' report. Upon receipt of that report no
further investigation was conducted.

THE INTERNAL
INVESTIGATION TEAM

(A) FORMATION AND PURPOSE

Following Gayder's suspension on February 5, 1987, between February 6
and 9, Mrs. Taylor recorded in her notes references to a possible internal
investigation. On February 9, Mrs. Taylor, Shoveller, Keighan and Sar-
acino met with the Solicitor General and members of his staff to discuss the
need for an investigation or a public inquiry. Shoveller wanted to have an
internal investigation, and undertook that, if Mrs. Taylor would provide the
information she had, and her sources, he would fully investigate those mat-
ters, and, "should there be evidence of criminal wrongdoing, that evidence
would be placed before a Crown counsel prior to charges being preferred."'
This commitment did not apply to Police Act charges. The meeting decided
that Shoveller would institute an internal investigation.

On February 10, Shoveller asked Superintendent Leigh to head an
internal investigation team. Leigh refused, citing his impending retirement.
On February 12, Shoveller asked Superintendent James Moody to head up
the investigation. Moody agreed on condition that he receive the rank of
Acting Deputy Chief so that he would not have to report to Deputy Chief
Parkhouse, whom he felt was a friend of Gayder's. On February 16, he was
told this had been arranged.

Moody testified that his original mandate from Shoveller was to
investigate "the happenings" at the Force garage at 1 1 Neilson Street and
"whatever else I found." Shoveller states that he told Moody to deal both
with the garage matters and Mrs. Taylor's allegations. He testified that his
intent was to "put to rest these allegations, clear the air once and for all, let
the public know what had been investigated, what the results were, where
improvements were required, and what those improvements would entail."

On February 17, Moody approached VanderMeer and Sergeant
Joseph Newburgh about the IIT, and they agreed to join the team. Moody
testified that Shoveller told him that VanderMeer should be a member of
the IIT, and that Mrs. Taylor had suggested this. Moody testified that
VanderMeer was not his choice, that he had other people in mind, "but he
was adamant, and he was the Chief of Police." Shoveller denied that he had
been "adamant", or that Mrs. Taylor had told him to put VanderMeer on the

Shoveller's evidence (May 7-8, 1990).

224 The Internal Investigation Team

Team. He testified that he suggested VanderMeer because he believed
VanderMeer had information that would be of assistance, and because
VanderMeer "had contact with the Chairman of the Board". Ted Johnson
testified that he expressed his concern to Shoveller about the make-up of
the team, and that "with respect to Sergeant VanderMeer, he indicated
basically it wasn't in his control." The extent of Mrs. Taylor's involvement
in VanderMeer' s appointment is unclear, but I conclude that Shoveller felt
she wanted VanderMeer on the IIT. To allow the appointment to be
influenced by the Chairman's preferences was not proper.

Shoveller also testified: "I am not totally sure that if VanderMeer
had not been involved in the investigation as he was, that there would not
have been a second investigation ongoing." Under further questioning, he
indicated that this meant that if VanderMeer were not on the IIT, he might
have conducted his own private investigation anyway. Shoveller's concern
was apparently justified. In September 1990, in spite of an order by
Shoveller that there should be no parallel investigations of matters being
investigated by the Commission investigators, VanderMeer involved D.B.
in just such a parallel investigation. VanderMeer' s own counsel commended
him for it in his September 12, 1990 speech introducing the D.B. matter. He
referred to Shoveller's testimony about VanderMeer running his own par-
allel investigations, and went on to say: "Well, it might be observed that
Sergeant VanderMeer' s parallel investigation is bearing fruit, and it has just
begun."

Shoveller agreed that VanderMeer' s methods of investigation were
"abrasive." If he felt he could not control VanderMeer and prevent him
from undermining the IIT by conducting his own private investigation, the
worst possible solution was to appoint him to an investigation as sensitive
as that projected for the IIT where it could be expected he would go off on
his own and take the investigation with him.

The IIT officially began its operations on February 18. Newburgh
recorded that the mandate they received from Moody was "investigation
into allegations of corruption and wrongdoing by some senior officers and
mid-line supervisors." He recalled Gayder, Lake, Marvin and 1 1 Neilson
Street being referred to, with the Gayder matters being nepotism, favour-
itism and guns. On February 20, Newburgh and VanderMeer had a lengthy
meeting with Mrs. Taylor to receive her information of the matters she felt
should be investigated, and also met with Baskerville to discuss the
allegations he had provided to Mrs. Taylor.

The Internal Investigation Team 225

The original concentration on Gayder's involvement in garage "hap-
penings," the circumstances surrounding the opening of closet 374, and the
centering of the IIT's interest almost exclusively on the conduct of Gayder
and those seen to be members of his group, and the way in which the IIT's
reports were framed, make it clear that Gayder was the focus of the inves-
tigation. Mrs. Taylor involved herself in the investigation from the start,
probably even to the extent of suggesting the inclusion of VanderMeer as
a senior member of the team. As an individual member of the Board she
had no business getting involved in a departmental investigation at any
time, but even more so when she was responsible for the suspension of the
ex-Chief upon whom the investigation was centered.

226 The Internal Investigation Team

(B) METHODOLOGY

The methodology of the IIT was the subject of much criticism by some of
the parties; it being submitted that its members started off with a bias
against Gayder and those who were seen as part of his clique. It was sub-
mitted that they proceeded into each phase of the investigation with pre-
conceived ideas of what they would find, and this resulted in their reports
being slanted against Gayder. The evidence supported those submissions.

(1) The Parnell paint investigation

The investigation of the Parnell paint job was the first example. Although
it occurred just before the IIT was formed, the investigation was carried out
by Sergeant VanderMeer, who later was the de facto head of the IIT, and
resulted in a lengthy and critical examination during the IIT phase of the
Inquiry. On January 9, 1987, VanderMeer received the paint job invoice,
marked "paid by cheque." He justified his refusal to accept the invoice as
proof that the job was invoiced to and paid for by Parnell because it was
addressed to her in care of the Chiefs office, even though Shoveller, who
ordered the investigation, testified it satisfied him that Parnell had
personally made the payment. VanderMeer was suspicious that, even if Par-
nell eventually paid, the initial payment may have been made out of the
Special Fund, and then repaid by Parnell. At that point, the reasonable next
step would have been to approach the garage that did the painting, or ap-
proach Mrs. Parnell herself, requesting proof of payment. Had either of
these steps been taken, the documentary proof of payment by Parnell would
have been produced, as it was to the Commission investigators, and that
would have been the end of the matter. Instead, VanderMeer, apparently
because he was already convinced there must have been some fraud in-
volved, proceeded to canvass the head offices of the chartered banks with
inquiries about Gayder's secretary's account, telling them it was a "strictly
secret" investigation. The poor impression of the NRPF administration this
must have caused is illustrated by the phone call to Gayder by a member
of the bank head office security unit. The fact that the private paint job had
been arranged through the Force garage was never denied, but that did not
seem to be the issue. It is apparent that, rather than being an investigation
into the operations of the Force garage, it was an investigation of Parnell
and possible misuse of Force funds by Gayder.

That investigation was followed by the IIT investigation into the
Parnell tire switch, the general circumstances of which have already been

The Internal Investigation Team 227

described. However, the manner in which the IIT embarked on that
investigation indicates a heavy-handed approach which was too often
evident in their other investigations, and caused concern on the part of the
Police Association and many of its members.

(2) Closet 374

The history of closet 374 and its contents is outlined in Part I, Chapter 2
(C) (1), "Firearm Storage Facilities." I return to the subject here only
regarding the circumstances of its opening as they illustrate the metho-
dology of the IIT.

In the spring of 1986, John Rhodes, a civilian Force employee, at
Gayder's request, moved several boxes of guns from a closet that was to be
remodelled into closet 374. Only Chief Gayder and his secretary, Mrs. Par-
nell, had keys to the closet lock. Rhodes told his sister, Carol Berry, also
a civilian employee, about the guns, and Mrs. Berry told VanderMeer. Un-
fortunately, she did not tell her superior officer. Sergeant Kopinak, since he
would have told her that he had assisted in moving the guns at an earlier
date into the closet that was to be remodelled, and this might have avoided
the appearance of mystery, and the circulation of a new rumour. Vander-
Meer reported the matter to then-Superintendent Peter Kelly and suggested
obtaining a search warrant, but apparently nothing was done.

Following formation of the IIT, on February 19, VanderMeer in-
terviewed Carol Berry about the matter. Later in the day. Shoveller, Moody,
Newburgh and VanderMeer had a meeting, and a discussion developed
about "Gayder's closet." The presence of guns in the closet was mentioned,
and checking the guns was set as a priority, but Shoveller was reluctant to
authorize opening of the closet at that time. VanderMeer testified that in the
next several days he brought up the matter of opening the closet "nearly
daily" with Moody, and a search warrant was discussed.

As head of the IIT, Moody was given office space near the Chief's
office. On February 23, Moody used a small screwdriver to slip the lock on
closet 374, and stated he was amazed to find the boxes of guns and other
weapons and police documents. He had asked Billie Hockey, whose desk
was near the closet, whether she had a key, but she did not. He did not ask
Mrs. Parnell, Gayder's secretary, who occupied an office nearby, and who
had a key, whether she had one or knew where one could be found.

228 The Internal Investigation Team

Shoveller testified that, had he wanted to open the closet, he could have
obtained the key. It would appear very little investigation would have been
required to locate a key had it really been wanted. Moody testified under
severe cross-examination that he was merely looking for a place to put his
coat and briefcase, and was completely unaware of the possibility of guns
being stored there. There was another closet just as close, but he testified
he did not want to use it because it had no lock. He denied that he was
present during the discussion about the closet, but the others testified he
was there, and their notes so stated. Under the circumstances, Moody's
failure to recall hearing about the guns, or to recall VanderMeer's daily
references to opening the closet, is difficult to understand, as is his failure
to make any real attempt to locate a key.

I conclude that Moody opened the closet as a result of the spec-
ulation about its contents at the February 19 meeting, and VanderMeer's
daily urgings. However, in lieu of obtaining a search warrant as suggested
by VanderMeer, and in view of Shoveller's refusal to authorise its opening.
Moody apparently adopted the ruse of jimmying it open for the innocent
purpose of hanging up a coat. This was not an auspicious start for what
should have been a fair and objective investigation, and must have sent the
wrong message to the members of the IIT as to the type of investigative
methods that were acceptable.

(3) The Parnell tire investigation

On Sunday, April 26, 1987, Mrs. Parnell and a woman friend were re-
turning to Mrs. Parnell' s home after taking a walk in the neighbourhood.
Newburgh and Rattray drove up in an unmarked car, and told Parnell they
would see her at her home a couple of blocks away. As Parnell approached
her home, she saw a second car occupied by VanderMeer parked nearby.
As Parnell and her friend arrived at the Parnell home, Newburgh, Rattray
and VanderMeer approached and told her they had a search warrant to
search her house for documents and property stolen from the Force. Tires
on her car were mentioned. Parnell remonstrated with them for executing
the warrant on Sunday at her home in full view of her neighbours, and
pointed out that the officers saw her and her car every day at the police
station and they could approach her then. They said they wanted to go in
the house, and Rattray opened the screen door and tried the door knob.
Parnell objected, and swears that Rattray said: "We're coming into your
God damn house whether you like it or not." Rattray's version is that he

The Internal Investigation Team 229

said "If we've got to kick the God-damned door down to get in, we're
going to do it."'^ VanderMeer and Newburgh state they did not hear this.

The group entered the house, asked Parnell for her cancelled
cheques, which she produced, and Rattray telephoned for a tow truck to
come to take the tires off her car. Parnell protested at the publicity this
would cause in her neighbourhood when many people were outside on a
fine spring Sunday afternoon, and after discussion, Rattray cancelled the
tow truck and Parnell drove her car, with a police car ahead and one
behind, to the Force garage. Parnell left her car there for removal of the
tires, and the friend, who had followed in her car, drove Parnell home.
Parnell subsequently laid a complaint about the matter.

There was good cause for suspicion about the manner in which the
tires had been acquired, and for a proper investigation. However, the
bullying tactics employed by the investigators in relation to a fellow female
employee were unnecessary, and to move in on the Chief's secretary on a
bright spring Sunday afternoon in full view of her neighbours exemplified
a heavy-handed approach that is simply unacceptable. This attitude is con-
sistent with other evidence that indicates the IIT considered that its man-
date made it a law unto itself.

(4) The Chiavarini guns investigation

As a result of finding two guns registered to Ralph Chiavarini in closet 374
without any occurrence report having been filed, the IIT in its report to the
Attorney General asked the question: "Considering all the circumstances
pertaining to the Chiavarini incident: did Sergeant Allan Marvin and James
Gayder violate the appropriate sections of the Criminal Code of Canada
dealing with delivery and possession of restricted weapons, for which they
did not possess the proper permits? Moreover: did their actions constitute
Theft as defined in the Criminal Code of CanadaT

The evidence at the Inquiry was that on March 19, 1987, Mrs. Chia-
varini was interviewed by the IIT, and she signed a handwritten statement
prepared by one of the interviewers. It stated, inter alia: "At the time I gave
the policeman these guns, I did not want him or anyone to have them. I
wanted them disposed of in whatever way the police did it." However, at

Inquiry transcript, vol. 151 (Jan. 31, 1990): 142.

230 The Internal Investigation Team

the Inquiry, she denied that she told the interviewers this. She stated that
she had been away for three months and had been home less than half an
hour when the police arrived and interviewed her for about an hour. She
stated that she was very tired and signed the statement after only scanning
it, and was not given a copy. She testified that she had told them she had
wanted the guns kept in safekeeping until she called for them. She stated
that when she was served with a summons to appear at some hearing (per-
haps the Police Act charge against Marvin) around May of 1988, she was
given a copy of her statement which said she wanted the guns destroyed.
After reading it, she phoned the NRPF officer who served it and told him
there were errors, that "I did not want my guns destroyed. My guns were
in safekeeping." Two days later the officer phoned her to say she would not
be needed, since the man charged had pleaded guilty. She could not now
remember the name of the officer.

It is apparent that Mrs. Chiavarini's statement was prepared to
support what the IIT interviewers already believed was the case; that is, that
Gayder had kept for himself guns that were turned in for destruction.
Whether or not Mrs. Chiavarini had originally put her mind to the issue of
when and if the guns were to be returned to her, impartial questioning by
the IIT interviewers would have soon revealed that her evidence would not
support their subjective conclusions. Those premature conclusions resulted
in a false statement of facts being forwarded to the Attorney General in
substantiation of their suggestion that the Ministry should recommend the
laying of the very serious charge of theft against Gayder and Marvin.

(5) The Welland guns investigation

The information forwarded to the Attorney General in the IIT report has al-
ready been set out in the Property section of this report. However, much
more evidence in that regard was heard by the Inquiry, and gave a further
insight into the manner in which the IIT conducted its investigations.

Martin Walsh, who became Deputy Chief of the Welland Force in
May, 1969, upon taking up his new duties, found a number of weapons in
a safe in the Welland Police Headquarters and assumed they were seized
weapons that his predecessor had placed there. Walsh thought such weapons
were the property of the Attorney General, and wishing to dispose of them,
offered them to the Attorney General's Crime Laboratory (now the Centre
of Forensic Sciences), but they declined the offer. He testified he has some
recollection of speaking to a Crown Attorney, in the presence of his Chief,

The Internal Investigation Team 231

Fred Wilson, about offering them to a member of the St. Catharines Force,
James Gayder, whom he knew to be a gun collector.

As a result of that conversation, Walsh believed that he had the con-
sent of the Crown Attorney and Chief Wilson to offer the guns to Gayder,
and took them in a bag to St. Catharines to meet Gayder. Gayder selected
a number of guns, and agreed to register them in his name, and forward
copies of the registrations to the Welland Police Department. In his will-say
statement given to the IIT, Walsh stated that the balance of the guns were
returned to the Welland Police Department and destroyed. Walsh cannot
remember how many guns Gayder selected, but Gayder testified that he
registered the guns he had chosen, perhaps as many as 17, and sent copies
of the registrations to Walsh. Eight of these guns bear a registration date of
June 20, 1969, showing them as transfers from the Welland Police De-
partment, and on August 5, 1969, five more were registered to Gayder,
three showing a transfer from the Welland Police Department, one a transfer
from Welland Chief McCarter, and one a transfer from one Fred Munson.
Gayder cannot remember the circumstances of these latter two transfers, and
both McCarter and Munson are deceased.

As set out earlier, a will-say statement obtained by VanderMeer
from ex-Welland Chief Fred Wilson on August 28, 1987, states that Wilson
retired from the Welland Force on December 31, 1970, the eve of the re-
gionalization, and that he never sold or gave guns to Gayder or anyone.
Sergeant Melinko took a will-say statement from ex-Deputy Chief Martin
Walsh on October 8, 1987, in which Walsh gave the same general infor-
mation set out above, which contradicts Wilson's statement denying any gift
of guns to Gayder.

The IIT, in its brief to the Attorney General, questioned Walsh's
credibility because during the OPC's 1984 investigation, which found
nothing illegal about the Welland gun transfers, Walsh had given an oral
statement that the IIT interpreted as saying the delivery took place in 1971,
whereas in his will-say he said it took place in 1969, before regionalization.

The brief goes on to state: "Gayder' s explanation to the Ontario
Police Commission investigators at that time was that he obtained them
from Fred Wilson, Retired Chief of the Welland Police Force." The IIT
interpretation is inaccurate. There is no suggestion in the OPC report that
Gayder said he got the guns from Wilson. The OPC report quotes Gayder
as stating that he received the guns "from the Welland Police Station when
the Forces regionalized at the end of 1970." VanderMeer interviewed

232 Thp Internal Investigation Team

Russell, one of the OPC investigators, on August 24, 1987, and Russell
went over his notes of Walsh's explanation of the transfer of the Welland
guns. Both Russell's notes and VanderMeer's notes of the interview quote
Walsh as putting the transfer around May 26, 1969, being the date Wilson
took over as Chief. Apparently this was the source of the statement in the
OPC report that the transfer occurred "when the Forces regionalized at the
end of 1970." The evidence is that the planning and takeover stage
commenced in 1969. On the basis of all this, the IIT brief concluded that
Walsh gave conflicting statements by stating to the OPC that the transfer
took place in 1971, then telling Melinko it took place in 1969.

Looking at Walsh's statements dispassionately, it is difficult to con-
clude that they were in conflict. To discount his evidence, and accept
Wilson's without question, on the ground that he was not credible because
of that conflict, seems not only very unfair, but indicative of fundamental
bias. Wolski, in his comments, pointed out that the IIT had relied too
heavily on Wilson's recollection, considering that he was, at the time, 81
years of age. When the Commission investigators attempted to interview
Wilson, they were not permitted to do so because of Wilson's mental and
physical condition. A January 20, 1989 letter to the Commission from Wil-
son's doctor was filed, stating that since December of 1985 Wilson had
suffered from "double vision, hearing loss, dizziness and confusion and
memory loss," the memory loss being due to "hardening of the circulation."
The doctor's opinion was that he was suffering from a mental condition
"affecting his memory and judgement that made him an unreliable witness."

Mr. Wilson, of course, was not called as a witness, but his daughter,
a registered nurse, testified that since an operation in 1985 he had had
memory problems, periods of confusion, and at times made "inappropriate
statements" in answer to questions, getting "steadily worse since 1985." She
stated that the present problems were present in the summer of 1987, and
although she had asked her mother to explain to the IIT interviewers that
her husband was ill, a stranger might not have realized his mental problem.

It is hard to understand why the IIT stated in its brief that Gayder
told the OPC he had received the guns from Wilson when VanderMeer's
notes of his interview with Russell show that he was told that Walsh had
told Russell that he gave the guns to Gayder. It is hard to understand why
the brief stated that Walsh had said the transfer took place in 1971, when
those same notes showed Walsh as saying it was around May 26, 1969. It
is hard to understand why the IIT would completely discount Walsh's evi-
dence in favour of Wilson's without checking with his wife or daughter

The Internal Investigation Team 233

about the 81 -year-old Wilson's memory ability. In view of the fact that, as
was seen in the introduction to the Property section of this report, most
seized guns become the property of the Crown, not the Board, and Walsh
had stated that he had checked with a Crown Attorney as to permission to
transfer the guns, it is hard to understand why the IIT did not mention this
in its brief or check out the accuracy of Walsh's statement before discarding
it.

(6) The "California gun" investigation

Prior to October, 1969, all gun registrations were recorded by the RCMP
on an individual's personal document known as a Fanfold. Commencing
October 1, 1969, the RCMP converted the Fanfolds to a single certificate
system for each weapon shown on a person's old Fanfold. The conversion
was completed in the spring of 1971. One of some 62 handguns registered
in Gayder's name on his old Fanfold N°. 4400 was a .32 H & R (Har-
rington & Richardson) serial N°. 3755, with a recorded barrel length of
three and one-quarter inches, which he told the OPC investigators in 1984
had been included in the guns received from the Welland Police Department
prior to regionalization. New individual registration certificates were issued
to Gayder for each of the 62 guns. Fifty-seven of the new certificates were
numbered in sequence, from D-595821 to D-595882, except for a few num-
bers which were unaccounted for. The .32 H & R was assigned N°. D-
595862 and was shown as a conversion from Fanfold N°. 4400. This num-
ber was in an unbroken series from D-595848 to D-595876. Registration
certificate D-595862, amongst others, was microfilmed by Police Archives,
Ottawa, in October, 1972, thus establishing Gayder's ownership of the gun
sometime prior to that date.

The IIT obtained documentary evidence from the Sacramento, Cali-
fornia Police Department that a .32 H & R serial N°. 3755 with a barrel
length of four inches had been stolen from one Corson in Sacramento, Cali-
fornia, on November 26, 1973. They concluded that this was the gun re-
gistered to Gayder, and that therefore he was in possession of stolen pro-
perty. In a letter of October 6, 1987, to the Ministry of the Attorney
General, the IIT pointed out: "It is abundantly clear that Mr. Gayder is in
possession of stolen property. This revelation also casts a heavy shadow of
suspicion on the remaining twelve firearms registered to him, along with the
numerous other weapons under his personal control." The latter reference
was to the weapons stored in closet 374. The other reference was to the

234 The Internal Investigation Team

guns Gayder received from the Welland Police Department, one of which
Gayder had said was the .32 H & R.

Important as it would appear to be to someone making a judgement
call as to the legality of Gayder' s possession of the gun registered to him,
no reference was made to the sequential numbering of the registrations as
indicating that that gun was included with the other 61 guns whose reg-
istrations were converted from Fanfold N°. 4400 prior to 1973. Nor was the
difference in barrel lengths mentioned, although the IIT had in its pos-
session the National Firearms Manual, which records statistics on all guns,
and which showed two barrel lengths for this model. Apparently the IIT had
come to its own conclusion that the Gayder gun was the California gun, and
that therefore the registration must have been fraudulently arranged by Gay-
der while he was the local gun registration officer. Although some members
of the IIT were aware of the possibility of duplicate serial numbers, it
appears that this possibility was not discussed during preparation of the
brief.

William Wolski of the Ministry of the Attorney General was im-
pressed by the evidence the IIT presented concerning the "California gun"
and advised that, if solid documentary evidence could be produced showing
the Gayder gun was, in fact, the gun stolen in California, there would be
sufficient evidence to justify the laying of a charge.

Further research brought to the IIT's attention the fact that duplicate
serial numbers were sometimes issued to cheaper types of guns, such as the
H & R, but was apparently not taken seriously. However, Sergeant Melinko,
who did the main research regarding the California gun, testified that he
knew by October 15, 1987, when the team went to Toronto to receive the
Wolski report, that the California gun could not be the Gayder gun, that
therefore there was no evidence that the Gayder gun was stolen, and so it
no longer, of itself, cast suspicion on the other Gayder guns. He could not
explain why he had not disclosed this to Wolski on October 15, but be-
lieved he told VanderMeer (which VanderMeer denies). He also testified
that he reviewed the IIT's confidential report prepared by VanderMeer for
the Police Board following the October 15 meeting, but apparently missed
the part about the California gun being the Gayder gun, which he knew was
"definitely wrong."

The evidence at the Inquiry hearings, as a result of the very
thorough investigation by the Commission investigators, left no doubt that
the Gayder gun could not be and was not the California gun. The same

The Internal Investigation Team 235

evidence was available to the IIT, and an open-minded approach by the IIT
investigators would necessarily have led to a similar conclusion. However,
having convinced themselves that Gayder was dishonest, they accepted only
the evidence that supported that thesis, and that was what they presented in
their briefs.

The California gun investigation is a graphic example of the flaws
in the IIT methodology caused by their predisposition to believe that
Gayder was dishonest.

(7) Schenck farm surveillance

The manner in which the IIT carried out its investigation of the Schenck
farm card games was another indication of the attitude of the IIT toward
authority.

On April 15 and 22, 1987, Onich drove out to the Schenck farm,
recorded the licence numbers of the cars parked near the greenhouse, and
checked the ownerships through the Department of Transport. He testified
that this was his own idea because of the rumour "that people of a sinister
nature played cards with the Chief."^ He went to the farm alone on April
15, and Constable Rattray accompanied him on April 22. He testified that
his investigation convinced him that the rumour was untrue, and he so ad-
vised the IIT. Onich was suspended for unrelated reasons on April 25, and
no one attended at the farm on April 29. Rattray testified that, following
instructions, he attended at the farm on May 6, and checked out the licence
numbers of the parked cars. VanderMeer accompanied Rattray to the farm
on May 13, and again the registrations of parked cars were checked out. On
May 27, Rattray and VanderMeer drove out to the farm, but VanderMeer
decided that the surveillance was "an utter waste of time ... it had been well
established that it was just a bunch of guys playing poker, there was
nothing nefarious about it."

On June 3, Rattray went out to the farm on his own. He was
detected, and Parkhouse ordered Rattray to submit a report as to his reasons
for recording licence numbers of cars parked at the farm. Rattray prepared
a very offensive three-page report to this very senior officer, concluding
with a refusal to advise why he was checking out licences: "Just let me

Inquiry transcript, vol. 155 (Feb. 8 1990):34.

236 The Internal Investigation Team

remind you of my status as an investigator assigned to a Special Internal
Investigation Team set up by Acting Chief of Police John Shoveller. I am
sure you are aware of the mandate and scope of the investigation." It is
unclear whether the memo was ever sent. Rattray testified that he was in-
structed by Shoveller and Moody not to send it, and he prepared a much
milder version. Moody believes the original was sent to Parkhouse. Rattray
testified that he stood by his original version: "I was caught up in the
atmosphere... my attitude at the time was probably exemplified by the way
I wrote the memorandum."

The "atmosphere" in which Rattray was caught up exemplifies the
arrogant and high-handed manner in which some members of the IIT car-
ried out their investigations, a manner which resulted in the protests of the
Police Association, and some of its members, about the make-up and meth-
ods of the IIT. As well, evidence indicated that the suspicion entertained by
some officers that the purpose of the surveillance was to identify Gayder's
associates, rather than to discover whether there was evidence of some
criminal infiltration of the Force, resulted in a decrease in their confidence
in the integrity of some of their superiors.

(8) Aggressive witness interviews

During the course of their evidence, several witnesses complained of the
overly aggressive manner in which they were interviewed by IIT investi-
gators. It is apparent that some of the interviews were actually in-
terrogations. Inspector John Stevens was so concerned about the manner in
which VanderMeer interviewed him about Gayder's guns, and Vander-
Meer's assumption of Gayder's criminal guilt, that he afterward made notes
of the interview and the way in which VanderMeer's questions were
framed. He noted: "Sergeant VanderMeer stated several times that a man
must be sick to want so many guns, and tapped the side of his head, saying,
there has to be something wrong with his mind ... Most of the "questions"
were in the form of an opinion expressed by Sergeant VanderMeer followed
by a phrase asking if you agree, such as "nobody needs that many guns,
right?" "there is no way he should have that, wouldn't you say?" and "he
should know the law, shouldn't he, after all he is a policeman," "a man's
gotta be sick, doesn't he?" "you wouldn't put that in a museum, would
you?" "that's obscene, isn't it?" There was not even a hint of an impartial
investigation being conducted by Sergeant VanderMeer."

The Internal Investigation Team 237

Robert Smith of Albion Arms was interviewed in Ottawa by
VanderMeer and Newburgh on June 2, 1987. He considered they were not
objective in their questions and had already concluded that Gayder was
guilty. He was concerned enough to tape-record much of the interview, and
afterwards recorded some of his thoughts on the tape. One observation was:
"I thought that the Niagara Regional Police Department could not take two
better officers if they wanted to hang the police Chief. Both of them ap-
peared to have an axe to grind for whatever reason."

Ted Johnson, the Administrator of the Police Association, and a sup-
porter of Gayder, testified that Beverley Allan, a former Board member,
after being interviewed by VanderMeer about Gayder' s trailer hitch,
telephoned him to express her concern over VanderMeer' s "demeanour" and
that he seemed "obsessed with getting and charging former Chief Gayder."
Johnson stated he was also called by Sergeant Pay who complained that
"after he had been interrogated ... that he felt like he was in a prison camp
by the way he was treated and the demeanour of his interrogators." Michael
Miljus testified that when he was interviewed by VanderMeer on June 17,
1987, he was shocked by the way he was treated, and that the interview
became an interrogation. Ronald Brady, Police Association counsel, filed a
com- plaint on behalf of Reginald Ellis about the manner in which Ellis had
been interrogated by VanderMeer. Elizabeth Parnell filed a complaint about
Rat- tray's language at the time of the Parnell tire investigation. Mr.
Schenck filed a complaint about the IIT trespassing on his property while
checking the licence plates of those attending card games.

Bullying tactics should have no part in the interviewing of wit-
nesses, and detract from the credibility of the statements so secured. Such
tactics, when employed in an investigation such as that of the IIT, are in-
dicative of a bias that calls into question the reliability of the investigators'
reports. The IIT became carried away with the powers that it assumed, and
the questionable factual basis for the reports it prepared has increased the
Commission's difficulty in concluding what is the real truth.

(9) The focus on Gayder

During the hearings, it was frequently alleged that the IIT improperly tar-
geted specific individuals. In May, 1987, the Police Association had made
public comments that the Internal Investigation was a witch-hunt. At the
Inquiry, Ted Johnson, Administrator of the Association, testified that it was
his perception, from conversations with the Association members, that the

238 The Internal Investigation Team

IIT had "targets already marked," being Gayder and senior officials allied
with Gayder.

A good deal of the evidence already set out in this report sub-
stantiates this suggestion. There was further evidence to this effect.
Constable Paul Hampson testified that, before Gayder' s suspension, he was
asked by VanderMeer to become part of a projected internal investigation.
He stated that he was left with the impression that the investigation was
spearheaded against Chief Gayder and his senior officers, and he turned
down the invitation because he felt it was "head-hunting." He testified that
sometime around 1984 VanderMeer had told him that "if it was the last
thing he ever did, he would get Jim Gayder," because "he felt that Mr.
Gayder was a crook and a thief and corrupt." Questioned about whether he
had said this, VanderMeer testified: "Hell no, I like Jim Gayder." Hampson
was vigorously cross-examined by VanderMeer' s counsel, but he did not
back away from his statement, and VanderMeer' s attitude towards Gayder
during the Internal Investigation is more consistent with Hampson's
recollection of the conversation than is VanderMeer' s.

Constable Brian Eckhardt testified that Constable Onich of the IIT
told him, following Gayder's suspension, but before his resignation, that the
IIT was intending to "ratchet" Gayder, by laying continuous charges; that
Onich stated "we'd lay two this week, pull it back, slam two more the next
week, pull it back, and do the same thing the week after to keep the
pressure on." Onich could not recall this conversation, but did not deny it
had taken place. The evidence is consistent with the fact that, when faced
with the cost of defending additional Police Act charges following his sus-
pension, Gayder resigned.

Further evidence of the IIT's focus on Gayder was supplied by Con-
stable Lee Rattray, who was himself a member of the IIT. Although he had
no training or experience as an investigator, Rattray entered enthusiastically
on the investigation. He was granted standing at this Inquiry as a member
of the IIT, but did not join with other members in retaining counsel, and
instead acted for himself in examining witnesses. He himself was called as
a witness, and his evidence about the direction of the investigation was
consistent with other evidence that the suspected misconduct of Gayder and
his supporters was the primary interest of the investigators.

While being questioned about the direction taken by the IIT
following the discovery of the weapons in closet 374, he testified:

The Internal Investigation Team 239

"A. ... the general consensus right off the bat was James
Gayder was going to jail, that's for sure.

Q. Is that something somebody said?

A. That's something they said. They all said it, and I prob-
ably said it myself, you know.

Q. And you said it as well?

A. VanderMeer and Moody, especially. VanderMeer, partic-
ularly, and Joe mentioned it. It was a fait accompli, this
guy was, he was done."

He went on to say that there were references to "the St. Catharines
mob ... meaning Gayder' s associates ... they were talking about what I
would say is people they had specifically targeted." He later explained that
the origin of the persons was not the reason they were targeted: "... it just
happened that the people that we seemed to be focusing on seemed to be
from the St. Catharines faction."

At another point, he testified that everyone on the IIT was aware
of the three-quarter inch discrepancy in the barrel lengths of the California
gun and the similar gun found in closet 374.

"Q. You've told me that this discrepancy in barrel length
was noticed when the burglary report was received?

A. That's the time frame I remember saying to myself, and
telling them, you know, 'There's a quarter inch (sic) dif-
ference, you can't ignore it. And you can't ignore the chron-
ology of the registration. You are out four years on that.' But
again, they'd get huffy, and Sergeant VanderMeer especially,
'Whose side are you on,' and you know, that type of thing,
so I shut up."

Following the earlier phases of the Inquiry which revealed the
flaws in the IIT investigation of Gayder, Mrs. Taylor testified that she had
not intended the Internal Investigation to be an investigation of Gayder, and
was mainly concerned with the possibility of infiltration of the Force by
organized crime. That is contrary to the evidence, and is simply not
credible. There is no mention in her evidence or that of any one else that
she expressed any concern about organized crime prior to her call for a
public inquiry. In December, 1988, her counsel stated that this Inquiry was

240 The Internal Investigation Team

called just on the basis of guns."* Her memos to Shoveller and corres-
pondence with the Solicitor General during her calls for a public inquiry
focused on Gayder's alleged misconduct. These are set out in detail in the
section "The Call for an Inquiry." She was in regular contact with members
of the IIT throughout its investigation and had to know it was concentrating
almost exclusively on Gayder. Nowhere in its reports is there a mention of
organized crime.

I can only conclude that the focus of the IIT was, and was intended
to be, upon Gayder and his alleged misconduct.

(10) The use of lawyers

VanderMeer testified that he obtained informal advice from two lawyers,
Stephen Sherriff and Peter Shoniker, both of whom were former Crown At-
torneys, as to whether there was evidence to support criminal charges
against Gayder. This raised the question of the propriety of police in-
vestigators seeking gratuitous advice about an on-going investigation from
a lawyer other than a Crown Attorney. Counsel for Chief Shoveller sug-
gests, in his submissions, that, since the credentials of such a legal advisor
are necessarily left to the subjective judgement of the individual police
officer, there are inherent dangers in the practice, and the practice un-
dermines the authority of the Ministries of the Attorney General and Sol-
icitor General.

I agree. There is the added problem that the lawyer so consulted is
likely to be a criminal defence counsel, and the situation may give the
appearance of a mutual aid relationship, where return favours are expected.

I recommend that there should be a force regulation prohibiting
police officers from soliciting legal opinions regarding an on-going police
investigation from anyone other than a Crown counsel without having first
obtained specific authority from the Chief of Police or a senior officer
designated by the Chief

Inquiry transcript, vol. 12 (Dec. 12, 1988); 1 17-119.

The Internal Investigation Team 241

Shortly after the opening of closet 374, Mrs. Taylor advised Shoveller that
Dunlop, who had been retained as the Board lawyer, had suggested an in-
vestigation of the closet contents and the laying of charges, if warranted.
Shoveller directed Moody to proceed with this, and on Friday, February 27,
VanderMeer recorded in his notebook: "Moody and Shoveller in office —
to work weekend if required to put together two or three charges re pro-
perty seized." Moody's notebook records: "Chief Shoveller— concentrate
on several good ones — have VanderMeer work with Onich." VanderMeer
worked all weekend on a brief, and presented it on Tuesday, March 3,
during a five-and-one-half-hour meeting with Mrs. Taylor, Dunlop, Shov-
eller, Moody, and Newburgh, together with an oral summary. According to
their evidence, no one seems to have read the brief at that time, but relied
on what Newburgh and VanderMeer told them about the evidence.

The brief was drafted in terms of Criminal Code charges, listing six
Criminal Code offences, although it was expected to be for Police Act
charges. Perhaps because it was prepared in such a hurry and with little
research, the brief lacked objectivity, and it may be assumed that the oral
presentation did likewise. It emphasized the court order for destruction of
the Reintaler knife, without attempting to verify whether such an order had
been made. It placed Gayder in personal possession of the knife and the
Caine gun without investigating the facts about control of the items in the
closet. It dismissed Gayder's letter requesting permission for a museum be-
cause it was addressed to the wrong Ministry, when a proper examination
of the Criminal Code would have revealed that it was sent to the right
Ministry. It rejected the museum defence as "absurd" based on a subjective
opinion of what should and what should not go in a museum. It concluded
that Gayder had committed theft in relation to the silver tea service despite
the fact that it had been found in the basement of the police building and
had never been used by him.

On the basis of the brief, Dunlop recommended the laying of fur-
ther Police Act charges, and six were drafted. On March 4, before they
could be laid, Gayder resigned. On the same day, Mrs. Taylor delivered to
the Solicitor General a copy of the brief, with a covering letter advising of
Gayder's resignation and the text of the six additional charges that had been
drafted. At the same time, a press release was issued to the same effect.

On May 25, 1987, Moody and Shoveller took a first draft of
another brief concerning Gayder to a meeting with Douglas Hunt, Assistant

242 The Internal Investigation Team

Deputy Attorney General. The brief cannot be located, but it was separated
into different sections, with a statement at the end of each section setting
out the investigators' conclusion as to whether an offence had been com-
mitted. Moody and Shoveller decided that future briefs should not set out
conclusions as to guilt, but instead should pose a question as to whether the
preceding section disclosed criminal conduct.

Shoveller testified that, nevertheless, briefs were submitted to the
Ministry of the Attorney General only where it was considered there was
sufficient evidence to warrant a criminal charge. VanderMeer's notes refer
to his preparation of "Gayder Crown Brief," and Mrs. Taylor, in a letter to
Hunt, refers to the Gayder volumes as a "comprehensive crown brief." A
memo from Newburgh to Moody dated April 28, 1987, reported on the pro-
gress of the IIT investigation, and concluded: "As each matter is inves-
tigated and sufficient evidence is found to support criminal charges, a brief
will be prepared for discussion with the Crown Attorney's Office."

VanderMeer's foreword to the November 1987 critique of the At-
torney General's recommendation against laying charges, which he prepared
for the Board, stated that it was the submission of the IIT that "Mr. Gayder
contravened numerous sections of the Criminal Code of Canada." It is
apparent that the IIT had come to its own conclusion about Gayder' s guilt,
even though, as ordered, the briefs posed questions in that respect.

Newburgh and VanderMeer clashed over Newburgh's revision of
a part of a brief regarding Ron Bevan, and the change of a word in the
closet 374 brief Newburgh recorded in his notes of June 9, 1987:
"VanderMeer complained about me altering his brief— is extremely bitter.
Moody unable to resolve the problem as I feel that VanderMeer's writing
reflects bias toward the subjects of the investigation i.e. "pried" as opposed
to "accessed" in Moody's entry to room 374 ... I feel ... the word "pried"
is too strong."

Mrs. Taylor's notes of that day record that VanderMeer told her
that he was requesting a transfer because of Newburgh changing his reports
and accusing him of trying to set up Inspector Bevan. It thus appears that
VanderMeer felt he was the designated author of the briefs, even though
Newburgh was supposed to be second in command to Moody. Rattray test-
ified that at one point, following a critical remark by VanderMeer, New-
burgh tore up the brief he had been preparing, and from then on Vander-
Meer prepared the briefs. Newburgh's notes state that on June 10, Shoveller
"counselled us on our differences, ultimately resolving the problem by

The Internal Investigation Team 243

having VanderMeer complete the brief and it being reviewed by Moody and
I." The word "pried" remained in the brief, and was used in the critique of
the Wolski report prepared by VanderMeer for the Board in October.

On June 16, five briefs were dehvered to the Ministry of the
Attorney General, followed by a sixth on June 21, and Newburgh then went
on sick leave, prior to retiring from the Force. He took no further part in
the investigation.

Although VanderMeer prepared the briefs, he ascribed respons-
ibility for the final contents to Moody as the appointed head of the IIT.
Moody's evidence is that he reviewed the briefs only as to form, their
covers, index and spelling, but had no input as to substance, the contents
being VanderMeer's responsibility. Shoveller received copies of the briefs,
but stated that, due to his other duties, he did not read them, and relied on
oral briefings from Moody.

The foreword to the briefs contains references to events, prejudicial
to Gayder, and not related to the subject matter of the briefs or not
supported by evidence contained in the briefs. Examples include allegations
of association with organized crime individuals, the DeMarco wiretap and
the John Gayder hiring matter. Witness statements and will-says contained
extraneous material, such as the G.H. investigation, the death threat against
VanderMeer, and Mrs. Taylor's concerns about Gayder intimidating her
with his berry picking remark. It is difficult to understand the relevance of
such material in briefs submitted to the Attorney General in support of
unrelated charges against Gayder based on possession of guns and similar
matters, unless it was designed to influence the Ministry with such
unsupported innuendoes.

As will be seen from my review of the various allegations con-
tained in the briefs, the briefs were replete with errors, misleading state-
ments and unwarranted conclusions of fact, and ignored available evidence
that would undermine the IIT's conclusions. This resulted in a large number
of proposed charges that were unsupportable, something one would not ex-
pect from experienced and impartial investigators.

A prime example is the manner in which the closet 374 episode
was presented. In spite of Moody's objection, VanderMeer insisted on using
the word "pried" to describe the opening of the door, creating the
impression that this was a secret "cache" of weapons to which Gayder
carefully guarded any access, although the evidence is that Gayder made no

244 The Internal Investigation Team

effort to keep it secret. The IIT obtained a statement from Inspector
Turnbull, who was seeking storage space, that Gayder had told him "that
he had weapons stored in the cupboard and as soon as he could find the
time to sort them out for those he wanted for the police museum, I would
have to wait for this storage space" [sic]. This was not disclosed in the
narrative portion of the briefs, despite its relevance to the secrecy of the
"cache" of weapons, and their purpose and suitability for the museum. Nor
was Sergeant Pay's evidence to the same effect fairly presented. The brief
stated "there never was a weapons museum" but as has been seen, this was
not correct. It stated that "It has been suggested that the weapons were
being stored for the purposes of a proposed police museum. The Special
Investigation Unit respectfully submits that this is preposterous ...." The
brief stated that Gayder had applied to the wrong Ministry for a museum
permit. An inquiry to the Solicitor General's Ministry would have revealed
that this was not correct, and that, in any event, no permission was required.
As pointed out earlier, Rhodes' evidence about moving weapons into the
closet was not presented fairly.

Another example is the allegation that weapon trades were con-
ducted illegally and without Board knowledge. This was not in accordance
with the facts and contained no acknowledgement that the practice had gone
on for years before Gayder took over. Similar examples of inadequate re-
search and unfair presentation have been seen in the sections on the various
handguns, particularly the Welland guns, the California gun, the Chiavarini
guns, the guns with obliterated serial numbers, the Remington Woodmaster
rifle, the Key diamonds, the silver tea service, the Reintaler knife, and the
cruiser trades and repairs.

The number of errors and unsupported statements contained in the
briefs prepared by VanderMeer is far greater than one would expect from
these experienced and intelligent investigators, and suggests that, once they
had obtained information that they felt supported their suspicions of
misconduct, they did not investigate further, and turned their attention to the
many other allegations that they were being pressed to report upon. The
result was that the briefs presented a distorted and often slanted picture, as
if designed to persuade the Attorney General of Gayder' s guilt, rather than
to present all the evidence bearing on each issue in an objective way. The
single-mindedness of their approach indicated that the members of the IIT
had made up their minds, and truly believed, that Gayder was guilty of a
number of criminal offences, and thereafter they were psychologically
unable to credit evidence to the contrary.

The Internal Investigation Team 245

The manner in which members of the IIT carried out their investi-
gation was such that the president of the Pohce Association and Ted
Johnson, its Administrator, felt compelled to travel to Toronto to protest to
the Deputy Attorney General about the make-up of the team and the "rather
high-handed and aggressive methods that were being used ..." and to request
that the investigation be turned over to an outside police agency.

I conclude that members of the IIT entered on their investigation
with a predisposition to believe that Gayder was dishonest, used over-
aggressive interrogation methods rather than conducting unbiased inter-
views, and prepared reports with tunnel vision that did not give effect to
evidence that did not accord with their own conclusions. The result was that
the majority of the members of the Force lost confidence in the investi-
gation, and the rumours and allegations which it was intended to lay to rest,
one way or another, continued and others were generated.

CONCLUSIONS

Very early in the Inquiry it became apparent that if the Commission was to
fulfil its mandate to report and make recommendations with respect to the
operation and administration of the NRPF, it would be necessary to look in-
to the formation and operational methods of the IIT. The internal inves-
tigation was a very controversial one, and had a serious effect on the oper-
ration and administration of the Force. It was the IIT's report that led the
Board to call for a public inquiry as indicated by the original Board res-
olution, which was for "a public inquiry into allegations of improprieties
involving Niagara Regional Police Force officers as investigated" (my em-
phasis).

Mr. Shoniker, as Board counsel, in his May 1, 1989 written sub-
missions on the gun phase of the Inquiry, requested an investigation into the
IIT, stating: "Like the Board, officials of the Attorney General's staff relied
upon the evidence gathered and the statements of fact within the internal
inquiry material. It has become evident that the various reports authored by
the internal inquiry team are faulty. The reports are, in some aspects, flawed
and misleading. This is an issue which should be addressed fully by this
Commission upon the completion of all evidence relevant to term of
reference number 3." Several other counsel also called for such an
investigation. I am satisfied that Board members, including Mr. Woodhouse,
were fully conversant with the day-to-day evidence and submissions by
counsel. It is therefore difficult to understand why Mai Woodhouse, on

246 The Internal Investigation Team

September 7, 1990, wrote to Premier-elect Bob Rae, with a copy to Premier
Peterson, setting out many complaints about the conduct of the Inquiry, and
stating that Board counsel had objected to any investigation of the IIT "on
the basis that it was not mandated by the Order in Council," particularly in
view of the fact that, according to the testimony of Mai Woodhouse, the
author of the above submission was also the author of the letter. The letter
was released to the media and was the subject of considerable media
comment. Perhaps the reluctance to have the IIT investigated arose when
the Board discovered that this was leading to a Commission examination of
the Board's involvement.

My reasons for "investigating the investigators" were set out in my
April 30, 1990, ruling on the "Starr motion,"^ which arose out of a sub-
mission by VanderMeer's counsel, supported by Board counsel, that the
Starr decision prohibited me from investigating the IIT and making any
fmdings of misconduct against members of the IIT, or others. That part of
my ruling was as follows: "There has, however, been evidence that
members of the Force perceive some of the Internal Investigation Team
members to be guilty of bias, intimidation and improper investigative
techniques employed while interviewing various Force members, and I
consider that a review of the methods used by the Internal Investigation
Team forms part of my mandate to ascertain whether there has been a loss
of confidence in the Force and to make recommendations to correct any
defects in policy, training or methods of selecting investigators ...."

In view of the numerous rumours and allegations of misconduct
and corruption on the part of Force members circulating throughout the
Force and the public, an investigation into them was essential so that they
could be brought into the open and dealt with. The concerns of the Board,
and particularly of the chairman, about the integrity of the Chief had to be
investigated. Such an investigation is inherently difficult and sensitive. The
investigators must be, and be seen to be, fair, with no preconceived ideas
about the matters to be investigated, and no bias against those persons to
be investigated. The wrong approach by the wrong people can create more
problems than they solve. The manner in which James Gayder was sus-
pended, and the apparent pressures on him to resign or be fired created in
some minds the perception of a "palace coup." The resulting internal in-
vestigation and the divisiveness it engendered clearly illustrated that an
investigation into alleged misconduct by senior officers of a police force
should be conducted by an outside agency.

'' Appendix

The Internal Investigation Team 247

From the first, the internal investigation appeared to be an in-
vestigation of James Gayder, and its objectivity was suspect. Each in-
vestigator apparently started out with a bias against Gayder. Shoveller, who
appointed the investigation team, and to whom it was to report, told the
Commission investigators: "As far as an individual is concerned, Jim Gay-
der was one of the most personable individuals that you'd ever want to
meet. As far as Chief of Police was concerned, I had absolutely no respect
or any use for him." The nominal head of the investigation was Acting
Deputy Chief James Moody. Moody testified that for years he had sus-
pected Gayder' s honesty in connection with guns and a tile cutter that
Gayder had taken home from Stores while doing house repairs. He stated
that "... I considered him to be a liar and a thief. And I still do." Newburgh,
a staff sergeant, and therefore next in command to Moody until retiring part
way through the investigation, suspected his telephone had been wiretapped,
and that Gayder was involved. VanderMeer, who took over effectual control
on Newburgh' s retirement, referred to Gayder as "the Thief of Police."

Onich, a member of the IIT, obviously doubted Gayder' s honesty,
testifying that he did not report his suspicions regarding Gayder and the
"museum gun" because he did not trust his superiors. Melinko had long
suspected Gayder of using Lake to obtain seized guns. Although Rattray
went along with the IIT methodology during its investigations, he became
the maverick of the IIT during the Inquiry, refusing to join the others in
being represented by one counsel, in distancing himself from some of their
conclusions, and apparently belatedly concluding that the IIT had been tain-
ted by bias. The two civilian members of the IIT were added for admin-
istrative duties, and took no active part in the actual investigation.

The opening of closet 374 by Moody was the first matter investi-
gated by the IIT. It was made a public event by inviting the media and the
local MPPs to view "Gayder' s guns." This was followed by further Police
Act charges laid in what some perceived as a successful attempt to "ratchet"
Gayder into resigning. Thereafter, nothing was likely to persuade the Gay-
der supporters within the Force that the investigation was unbiased, or that
the investigation was not aimed mainly at them.

This feeling was exacerbated by seeing the Board chairman, whose
views of Gayder were well known by this time, frequently having coffee
with the IIT members in the IIT offices during the IIT investigation. It is
the responsibility of the members of a force's governing body to support the
independence and credibility of an investigation of this kind, and it is

248 The Internal Investigation Team

essential that they should avoid any appearance of involvement in the in-
vestigation.

Further, in establishing such an investigation, its mandate must be
clearly defined. Open-ended or vague instructions are an invitation to allow
personal prejudices to influence the direction of the investigation and the
conclusions reached by the investigators. Personal crusades have no place
in an investigation. Nevertheless, perhaps because of the vague nature of the
instructions given it, (Moody does not recall being given any priorities), it
is apparent that the IIT concentrated its time and energy on what it
perceived to be Gayder's indiscretions, ignoring many of the then current
allegations about important matters unrelated to Gayder which the
Commission staff later investigated and reported upon.

As an integral part of the mandate of the IIT, priorities should have
been established to refiect the real purpose of the investigation. This would
have avoided the futility of spending time and resources on a trailer hitch
and a tea service, while no time was found to look into allegations of infil-
tration by organized crime which left a cloud of suspicion hanging over the
Force.

There was little or no supervision of the IIT by senior members of
the Force. Shoveller stated that he wanted to remain at arm's length from
the investigation, but having ordered an investigation by his own staff,
rather than arranging for an outside agency, it was his responsibility to
ensure that it was conducted properly. He had turned over responsibility to
Acting Deputy Chief Moody, but Moody testified that he did not consider
that, along with his other duties as Acting Deputy Chief, he was expected
to be in charge of the day-to-day operations of the IIT. This he left to New-
burgh until Newburgh's departure in June pending his retirement, and there-
after to VanderMeer.

On February 18, Newburgh met with Moody and VanderMeer and
recorded in his notes: "Received instructions from Moody re investigation
into allegations of corruption and illegal behaviour by members of the
NRPF. Carle Blanche Mandate. No scheduled hours. Only restriction no ar-
rests w/o [without] discussion with him." On March 16, Moody met with
Shoveller, Newburgh and VanderMeer to discuss strategy. Newburgh re-
corded: "Strategy discussion re illegal wiretap allegation. Shoveller seems
to place the theft of handguns from Welland City Police Department by
Gayder as a priority .... He also wants Supply investigation as a priority."
Moody, although heading up the investigation, did not recall any discussion

The Internal Investigation Team 249

of priorities at this meeting. Although he told the Inquiry he accepted no
responsibility for the errors and flaws in the briefs because he looked only
at the covers, the "form" and the spelling, he must have accepted many of
the IIT's conclusions. On December 1, 1987, he wrote in a memo to
Shoveller: "When this investigation began some ten months ago, no one
could predict how blatantly criminal some of the actions of members or
former members of our force would be."

The result of the fragmented direction of the internal investigation
is illustrated by the faulty information contained in the IIT briefs which
were given to the three criminal lawyers who provided legal opinions to the
Board.^ One recommended against laying criminal charges against Gay-
der, but the other two found that, on the facts set out in the briefs, there
were reasonable and probable grounds for laying criminal charges in re-
lation to some of the guns. Once it became clear that the California gun
could not be the one found in closet 374, the linchpin of the Welland gun
charges was gone, but no one in a senior position was told of the problems
in that regard, and earlier misstatements were not corrected. It appears
probable that the legal opinions of the three criminal lawyers, delivered to
the Board on November 5, 1987, might have been quite different had the
briefs on which they were based set out the true facts relating to the guns
as revealed by the evidence at the Inquiry. In that regard, Mrs. Taylor
testified: "If the three legal opinions had supported the Ministry of the
Attorney General, we would not have had cause to call for an inquiry."

From the start, the internal investigation was flawed. The chairman
of the Board gave the appearance of inappropriate involvement in the in-
vestigation. The IIT's view of this is presumably indicated by the sub-
missions filed by the IIT's counsel. In explaining Moody's action in re-
porting to Mrs. Taylor immediately after returning from the October 15,
1987 meeting with the members of the Attorney General's Ministry, she
stated, "However, given the intense involvement of Mrs. Taylor by virtue
of her persistent attendances during the Internal Investigation, Moody felt
that his action was appropriate at the time ... Moody's average working day
would have been entirely consumed by the persistent attendance of Mrs.
Taylor."

In addition, as seen above, some of the investigators had a pre-
existing bias against Gayder. The Inquiry evidence indicates that some

See p. 267.

250 The Internal Investigation Team

Started off with a preconceived idea that Gayder was guilty of wrongdoing,
and that their task was to produce the proof. Witnesses were at times sub-
jected to cross-examination in what appeared to be an attempt to get an-
swers supporting guilt rather than to obtain all available evidence. No at-
tempt was made to interview Gayder, the subject of most of the alle-
gations, as would surely be the usual course of a normal inquiry. Gayder
was thus precluded from supplying explanations which the IIT could have
investigated.

The chain of command was ignored, with the real control of the
investigation lying with the investigators, rather than with their superiors,
apparently with the tacit approval of the superiors. The investigators appear
to have felt they were not accountable to anyone, a feeling reflected in a
rather arrogant attitude toward senior officer's queries, in their manner of
questioning some witnesses, and in memoranda issued by some of them
which ranged from inappropriate to insubordinate and scandalous.

Such an investigation should never have been an internal one.
Many of tiie problems which shook the NRPF to its core might have been
avoided had the corrupt practices unit, recommended in Part II, been
available, and been employed to track down the rumours when they first
emerged, and to take appropriate action or lay them to rest once and for all.
Future avoidance of the kinds of problems and costs resulting from the in-
vestigation of the Niagara Force by its own investigation team would more
than justify the cost of providing a special provincial unit to handle such
sensitive internal investigations.

The Internal Investigation Team 251

RECOMMENDATIONS

It is recommended that:

1. Before an investigation of the Force or its members is commenced,
its mandate and its priorities be clearly defined to reflect the real
purpose of the investigation.

2. Allegations such as those investigated by the IIT should not be the
subject of an internal investigation, but should be referred to the
special corrupt practices unit recommended at page 190.

Pending establishment of such a unit, allegations of corrupt
practice within a force should be referred to an investigation unit
composed of members of another police force designated by the
OCCPS.

3. There be a force regulation prohibiting police officers from sol-
iciting legal opinions regarding an on-going police investigation
from anyone other than a Crown counsel without having first ob-
tained specific authority from the Chief of Police or a senior
officer designed by the Chief.

5 SERGEANT C. VANDERMEER

In the "Notices of Alleged Misconduct" filed in May 1991, a multitude of
allegations of possible misconduct on the part of Sergeant VanderMeer were
advanced by counsel for eight of the parties appearing at the hearings. On
the filing of final written submissions in June 1992, most counsel replied
in detail to the allegations against their clients, some of the briefs running
into hundreds of pages. I had looked forward to receiving a similar reply
from Mr. Rowell, VanderMeer's counsel, to help me assess the weight of
the allegations against VanderMeer. Instead, his submission brief totalled
only nine pages, and rather than answering the numerous allegations of mis-
conduct, it consisted of what was, in effect, a reiteration of claims of
non-disclosure of evidence and bias by Commission counsel. I had pre-
viously ruled that these allegations were unfounded.

Most of Mr. Rowell's submissions were based on one incident
which was investigated by the Commission investigators, but no evidence
was called upon it. The reason is simple: it was a criminal matter, and as
such was referred to Chief Shoveller. He had it investigated by members of
an outside force, who recommended that no charges be laid.

I reject Mr. Rowell's submissions as being unfounded on all the evi-
dence. It would have been of much greater help to me had I been given
some reply to the numerous allegations of VanderMeer's improper be-
haviour that had been made by the other parties appearing at the Inquiry.

Sergeant VanderMeer is undoubtedly a dedicated police officer, but
his prosecutorial mindset malces him a dangerous investigator. The absolute
conviction with which he leaps to his conclusions, and the vehemence with
which he supports these conclusions in his evidence, has convinced me that
this is not caused by "wilful blindness," in the sense that he receives evi-
dence which he knows to be true but deliberately discards it because it con-
flicts with the conclusion he has already adopted. Rather, I believe that his
erroneous judgements are often caused by "honest blindness" in that he
psychologically cannot accept evidence which conflicts with the conclusion
he has already adopted. What makes this dangerous in a criminal investi-
gator is that his honest belief in an erroneous conclusion renders his court
evidence in that regard more credible by giving it the "ring of truth."

As he stated more than once during his cross-examination by var-
ious counsel, he is convinced that any criticism of his methods and alle-
gations is simply a matter of "shooting the messenger." It is probable that
VanderMeer will go to his grave convinced that his various conclusions

254 Serjeant VanderMeer

arrived at during the IIT investigation were right, and that any conclusions
to the contrary are the result of incorrect information, or faulty reasoning,
or bias in favour of the alleged wrongdoer, or prejudice against VanderMeer
as a rumourmonger, or all of the above. This is illustrated by the fact that
although he was aware early in 1986 that both the OPC and the OPP had
inquired into the Gayder gun collection, that the OPP had inquired into the
Walsh/G.H. connection, that the OPP had inquired into the Typer/C. matter
and that the NRPF had twice inquired into the alleged VanderMeer/C. death
threats, all without finding any criminal wrongdoing, nevertheless he re-
mained convinced that wrongdoing existed. Although he stated in evidence
that he was satisfied with the OPP investigation, he proceeded to bring the
rumours about the above matters to the attention of Mrs. Taylor in late 1986
and early 1987, and even to the media. His critique of the Wolski report,
which he delivered to the Board, simply reeks of scorn and vituperative sar-
casm one would not expect of an unbiased police investigator, particularly
when the subject of the sarcasm is a very senior Crown law officer.

The evidence, and the transcripts of interviews conducted and
will-says drafted by him, indicate that in interviewing suspects or witnesses,
VanderMeer asks "loaded" questions calculated to elicit answers consistent
with what he believes really happened, and the predictable answers are then
used to confirm, in his own mind, his earlier suspicions. Once he has
reached this subjective conclusion of guilt, he, in effect, puts on blinkers
and thereafter refuses to be confused by new evidence which contradicts his
original thesis.

This can be seen in the manner in which he constructs and edits his
briefs or witness will-says. The IIT briefs forwarded to the Attorney
General, which he authored, are replete with examples: e.g., IIT brief (vol.1,
p.3)"... (Rhodes) had removed several boxes of weapons from Gayder' s in-
ner office to a closet identified as Room #374. At the time, Gayder said to
Mr. Rhodes that the weapons were at the police station because his wife did
not like them at their home." This may accord with VanderMeer's own con-
clusion, but does not accurately reflect Rhodcs's will-say, prepared by the
IIT, quoted at page 56 of volume 2 of those same briefs, where Rhodes is
reported to have said: "I also moved some rifles. I assumed they were his
personal hunting rifles. Sometime during the moving of the weapons, the
Chief said: 'I keep them here because my wife doesn't like them around
the house.' I am not sure if he was just referring to the rifles or the entire
collection." This will-say is also different from the evidence that Rhodes

Sergeant VanderMeer 255

gave at the Inquiry' where he said:"... at the time I was picking up the
rifles he had said, 'I keep them here because my wife doesn't hke them
around the house,' and at the time I thought he was just referring to the
rifles because I knew he was a hunter and I thought they were his own
personal rifles and he kept them there because his wife didn't like them
around the house. QUESTION: ... at that time did you have any thought
that he was meaning to refer to the entire collection of weapons?
ANSWER: No, I just thought he just meant the rifles because that's what
I was moving at the time. QUESTION: Did you get any impression from
anything else the chief said or did during the time you were moving these
weapons that he regarded the entire group of them, all the boxes, as his
personal property? ANSWER: No, I did not."^

Rhodes was a credible witness. There was no indication that he had
changed his story. It would appear that VanderMeer was convinced in his
own mind that Gayder had taken possession of all weapons in the closet as
his private collection, and was thereby guilty of stealing them from the
Force. Then, when Rhodes told him of moving the guns from Gayder's in-
ner office to closet 374, he leapt to the conclusion that this confirmed his
suspicions. One or two questions would have revealed that Rhodes was not
referring to all the guns, but rather just to the rifles. However, VanderMeer
interpreted Rhodes' s statement as being consistent with his (VanderMeer' s)
theory that Gayder had claimed ownership of the closet contents. It seems
that, once he has formed a considered opinion, he asks no further questions
that might elicit answers that could contradict that opinion.

Thus, it would appear that, upon the discovery of the multitude of
weapons in closet 374, VanderMeer formed the opinion that Gayder was
guilty of theft from the Force, and subsequent investigation became, to a
large extent, an exercise to produce the evidence that would support this
theory. As a result, it was assumed that there was something questionable
about Gayder's stated intention to establish a Force museum containing
weapons, and particularly about Gayder's application to the Solicitor
General, and that further examination of the Criminal Code was unneces-
sary. In his brief to the Attorney General, VanderMeer stated that investi-
gation showed that "in accordance with law, Gayder had never applied for
permission to exhibit restricted weapons in a museum." He did point out
that Gayder had on June 26, 1985, sent a letter to the Solicitor General

' Inquiry transcript, vol. 36 (Feb. 7, 1989): 133.
^ Ibid.:pp. 133-34.

256 Serf>eant VanderMeer

advising that he was establishing a museum to contain "memorabilia," but
he went on to state that the letter did not stipulate weapons, and was
addressed to the wrong ministry, since the Criminal Code stipulated that
only the Attorney General could grant permission to exhibit restricted or
prohibited weapons. As explained earlier in this report, a minimal ex-
amination of the Criminal Code or a simple telephone call would have re-
vealed that the Solicitor General's Ministry was the proper authority, and
that had approval of Gayder's application been granted it would have in-
cluded the right to display restricted and prohibited weapons. It would
appear that VanderMeer jumped to a conclusion that accorded with his con-
viction that Gayder was using the museum as a cover-up for his illegal ac-
quisition of weapons that properly belonged to the Force, and he accord-
ingly saw no necessity of looking beyond the evidence which supported his
belief.

This is further indicated by his interpretation of the evidence of
Sergeant Pay, who had been appointed curator of the projected museum in
the early 1980s. In the IIT brief, it is stated: "Sergeant Pay, on viewing the
weapons found in Room 374, said that the weapons, for the most part,
could not have been used for a police museum, as many were duplicates
and had no significant historical value; he had already been given weapons
for the museum, and these were housed in his own secure storage." This is
a skewed version of Pay's interview by VanderMeer and Newburgh on
which the above statement was presumably based, in which Pay stated that
Gayder had told him that he (Gayder) had some guns that he was going to
turn over to the museum, and that there were not that many of those he had
seen that he would want. This was not further explored, and Pay's evi-
dence at the Inquiry put a somewhat different light on the matter, when he
said: "Chief Gayder, at the time he told me that he had some boxes of guns
there, said that he would give them to me at some future time and go
through the guns that I could use for the museum, and we'd dispose of the
rest."^ When asked whether there were many of the guns in the closet that
he would have wanted to use in his museum, he answered: "I would have
taken all the guns for ihe museum .... And then pick and choose what I
could [use] for different displays.""* He stated that other museum curators
had told him to always take anything that was offered to him because "...
the more you have for the museum, the better choice you have of what you

• Inquiry transcript, vol. 25 (Jan. 18. 1989): 109.

* Ibid.: 142

Sergeant VanderMeer 257

can put in the museum to show,"'' and that only about 10 per cent of what
is in storage is used for display purposes at any one time. It would appear
that VanderMeer did not give Pay an opportunity to make these explan-
ations during his questioning of him for the purposes of the internal in-
vestigation, and consequently his belief in Gayder's guilt seemed to be
confirmed.

The brief went on to report: "The Internal Investigation Team
learned through the interviewing of witnesses that the Force, under the
direction of James Gayder, had indeed been involved in the trading and
selling of seized and confiscated weapons .... The witnesses also named gun
dealers that Chief Gayder had dealt with; one in particular was (name de-
leted by me, "W" will be substituted). He is a man of questionable char-
acter. It has been alleged that he was involved in international gun dealings
that were criminal in nature; that he has connections with organized crime
figures such as (name deleted by me); and that he had been convicted of
weapon offenses."

The intimation was that Gayder had been dealing in weapons with
a very shady character. No mention was made of the fact that trading of
seized and confiscated weapons to gun dealers had been the practice in the
Force for many years before Gayder became Chief, and was done by many
other forces. W. gave evidence and stated that while he was in the gun bus-
iness between 1954 and 1972 or 1973, he had dealt with 90 per cent of the
police forces across Canada, including the OPP, the RCMP and the Metro-
politan Toronto Police Force, and that some of the forces traded-in seized
guns on new weapons or equipment, while some did not. W. sold his bus-
iness in 1972 or 1973. He had met Gayder, "and subsequently I waved to
him, he waved to me, that was about the extent of it. I never had any direct
dealings with him." He stated he had never sold or given any guns to Gay-
der. His evidence that he had only a nodding acquaintance with Gayder, and
had dealt with so many forces without his integrity being an issue, con-
trasted rather sharply with the picture painted by the IIT brief, which could
create a very negative impression of Gayder's involvement with a question-
able character who had connections with organized crime figures.

As was seen in the sections on Aggressive Witness Interviews and
on Conclusions regarding the IIT, VanderMeer apparently started off with
a preconception of Gayder's guilt. This is further illustrated by his

Ibid.: 143

258 Sergeant VanderMeer

acceptance of retired Welland Police Chief Wilson's statement that he had
never authorized the delivery of any guns to Gayder, in preference to retired
Welland Deputy Chief Walsh's statement that he had delivered guns to
Gayder in 1969 with Wilson's permission. There was no reason to dis-
believe Walsh except that his statement did not fit in with the IIT's con-
clusion about Gayder' s theft of Force guns, and the same type of checking
that was done by the Commission investigators (which should surely be
routine in the case of such conflict of evidence) would have revealed Wil-
son's mental infirmity and changed the whole complexion of the IIT report
on the Welland guns, and the importance attached to the "California gun."

VanderMeer's inability to accept evidence which contradicts his own
conclusions is further illustrated by his statement in his report to the Board:
"Investigators determined that one of the so-called Welland weapons, a .32
H & R revolver, had been stolen in Sacramento, California in 1973 during
a burglary. Thus this weapon could not have been obtained from the former
Welland Police Department in 1971." This conclusion could not have been
formed had the conflict between Wilson's and Walsh's statements been ap-
proached with an open mind, their relative reliability investigated, and the
probability of duplicate serial numbers explored. This unwarranted con-
clusion, reached in spite of doubts on the part of some members of the
Team, played a large part in the IIT submissions to the Attorney General,
and subsequently to the Board, that Gayder was guilty of criminal conduct,
and those submissions undoubtedly played a part in the Board's decision to
demand a public inquiry.

The same attitude is apparent in connection with the Remington
Woodmaster rifle episode.^ Any thorough investigation would have re-
vealed the true state of affairs that, rather than Gayder having the rifle
improperly, in fact it had been signed out to him to be carried in his Force
vehicle. However, having learned of potentially damaging information
against Gayder concerning his possible illegal possession of the rifle, no
further investigation was apparently made. As a result, VanderMeer, in pre-
paring the IIT report, gave incorrect and very prejudicial information to the
Attorney General and implied that Gayder had thereby committed the
offence of theft.

Sec p. 67.

Sergeant VanderMeer 259

The report also gave inaccurate information regarding the Lamonte
gun/ stating flatly that Lamonte wanted the weapon he had found and turn-
ed in to the police returned to him, if the owner was not located. In his evi-
dence at the Inquiry, Lamonte stated that although he had originally asked
for its return, when he learned that the gun was of little value, he advised
the Force that he had changed his mind. By simply contacting Lamonte and
by asking Gayder for his explanation of his possession of the gun, the mis-
leading information given to the Attorney General in the IIT report, im-
plying that Gayder had committed theft in this regard, would have been
avoided. Instead, VanderMeer, in authoring the report, leapt to a con-
clusion more consistent with his own views about Gayder.

Similarly, the report concerning the Chiavarini guns^ would have
been quite different had the interview with Mrs. Chiavarini been conducted
without pressure, and would have reflected her later evidence at the Inquiry
that she had wanted the guns to be placed in safekeeping. Instead, the report
stated: "Mrs. Chiavarini said that she wanted the guns disposed of: she did
not intend that they be kept," and that, "Gayder had a market for the guns."
It then asked the Attorney General whether the actions of Marvin and Gay-
der constituted theft.

In the report, it is suggested, that, by having in his possession an
M-1 carbine for 12 years before registering it on March 19, 1979, Gayder
may have violated provisions of the Criminal Code. A phone call to the
provincial Firearms Officer would have revealed that there was no require-
ment to register such a weapon prior to January 1, 1979, and that there
could be several weeks' administrative delay between the application to reg-
ister and the actual registration date due to delays resulting from a flood of
registrations following the gun amnesty law of 1978.

In his report, VanderMeer states: "The Ontario Police Commission,
in 1984 was privy to similar information as far as Gayder's gun collection
was concerned. For some inexplicable reason Ontario Police Commission
investigators did not delve fully into the matter." Perhaps because of his
preconceived conclusions about Gayder's guilt, the realization that the OPC
did not consider Gayder's actions to be illegal failed to flash a warning
light to VanderMeer that his allegations of Gayder's wrongdoing might be
flawed.

^ See p. 44.
' See p. 229.

260 Sergeant VanderMeer

In connection with the Reintaler Knife,^ the report stated cate-
gorically that the court had ordered the weapon confiscated and destroyed.
This was not correct; the court record filed with the report disclosed no
such order. Apparently the IIT and VanderMeer did not check this, but pro-
ceeded to ask the Attorney General whether, on the misleading facts set out
by them, Gayder had committed theft.

The same inflexible attitude is demonstrated in regard to the tea
set,'° where a proper and unbiased investigation would have revealed that
there were no reasonable grounds for asking the Attorney General of the
province whether the situation amounted to theft on the part of Gayder.
Even after the Attorney General advised that there was nothing improper,
VanderMeer insisted in his supplementary report to the Board that Gayder
had committed an offence.

Again, in relation to the trailer hitch," the very way in which his
question to the Attorney General was slanted indicates bias, namely: "Con-
sidering the fact that Gayder used the taxpayer's money for his own use and
benefit ... did he commit the offence of Breach of Trust?" Later, in his
report to the Board, VanderMeer agreed with the Attorney General's con-
clusion that the circumstances did not disclose an offence, but by then the
very accusation would already have done its harm.

In assessing VanderMeer's role, it must be borne in mind that each
of these questions about the criminal liability of the former Chief of Police
was directed to the province's chief law enforcement officer, and was pre-
ceded by a recital of stated facts, many of which were proven by proper in-
vestigation to be untrue.

Although each occurrence outlined to the Attorney General con-
cluded with a question whether such conduct amounted to a breach of the
Criminal Code, it was clearly implied that the IIT and the author of the
report had already concluded that it did, and this is confirmed by the out-
rage exhibited by the some members of the IIT and Board over the Attor-
ney General's refusal to recommend prosecution, to the extent of requesting

^ See p. 82.
'" See p. 78.
" See p. 81.

Sergeant VanderMeer 261

an investigation of members of the Attorney General and Solicitor General
ministries.

CONCLUSIONS

I have gone into great detail to outline the problems I have found with
Sergeant VanderMeer' s methods and attitudes, because I am conscious of
the seriousness of the recommendation I am about to make.

Sergeant VanderMeer had the central and controlling role in the IIT
and its badly flawed operations, which played a large part in the resig-
nation, under pressure, of the Chief of Police and the greatest upheaval in
the 16-year history of the NRPF. The "loss of public confidence" in the
Force referred to in the Order in Council issued to the Commission was
contributed to by the number of rumours and allegations of impropriety, and
even corruption, that the investigative techniques and slanted reports of the
IIT engendered both within the Force and in the public.

Sergeant VanderMeer is an intelligent person, but is quite prepared
to ignore the chain of command, which is so important in the proper admin-
istration and operation of a police force. Instead, he is prone to apply his
own standards in his approach to the obligations that arise in administering
justice in an even-handed manner. He does this out of a desire to see justice
done as he thinks it should be done. Unfortunately, because he is inclined
to leap to conclusions that accord with his own subjective impressions early
in an investigation, and then ignore or misconstrue later evidence which
does not conform to his earlier conception, he is not always correct in his
view of what is just and even-handed, however well-intentioned he may be.
As we have seen, this is very dangerous, since it could result in a denial of
justice and the conviction of the innocent.

On October 2, 1989, VanderMeer sent a memorandum to Deputy
Chief Kelly complaining of the unfair criticism of one of the former civilian
members of the IIT for breaching the chain of command by reporting to
Sergeant VanderMeer, long after the IIT had been disbanded, her suspicions
about a breach of security by another employee, instead of reporting to her
own superior. Sergeant VanderMeer' s intemperate comments are very re-
vealing as to his attitude to the chain of command ; "inept, incompetent and
perhaps corrupt police management team," and, "What a school-yard bully!
What a disgrace! What a sniveller! What a spoiled adolescent! I feel
nothing but scorn and contempt." Following a lengthy quote from "Peter's

262 Serjeant VanderMeer

Principle" about superiors rising to the level of their own incompetence, he
went on: "What an apt description of the management techniques used by
our Force." The incident led to Chief Shoveller issuing a Routine Order re-
minding all Force members that the IIT had been terminated with the
appointment of the Commission of Inquiry, and that no parallel investi-
gations were to be conducted. VanderMeer' s irreverence toward authority
is further indicated by the fact that in his notes he referred to Chief Gayder
as "the Thief of Police" and to Gayder' s secretary as "the Queen Bee."

The Force has gone through a traumatic period of self-examination
and self-doubt in the last few years, particularly during the investigation by
the IIT and by this Inquiry, and it is to be hoped that the revelations at the
Inquiry that most of the allegations had little, if any, foundation may act as
a form of catharsis to purge the doubts and lack of confidence engendered
by years of rumours and dark gossip. Sergeant VanderMeer made it clear
during the Inquiry hearings that he is still convinced of the truth of much
of the substance of the allegations of misconduct, and his action in carrying
on private investigations of his own, such as that concerning D.B.,
paralleling the Commission investigations, despite orders not to, persuades
me that, if he is left in an investigative capacity, rumours and allegations
of corruption within the Force will continue to circulate. This is not a
matter of "shooting the messenger" but of neutralizing a messenger who
bears inaccurate news of his own making. It is a matter of preventing a very
dogmatic investigator from causing further tension and uneasiness within
the Force, and possible harm outside the Force, by his inflexible investi-
gative style. I am satisfied that this can be accomplished only by trans-
ferring him to a position where his talents may be of benefit rather than a
liability.

Sergeant VanderMeer 263

RECOMMENDATIONS:

It is recommended that:

7. For the above reasons, Sergeant VanderMeer be transferred to a

position within the Force where he will not have, or be responsible
for, investigative duties.

6 THE CALL FOR AN INQUIRY

On October 5, 1987, Mrs. Taylor wrote Deputy Attorney General Douglas
Hunt, under the heading "Re: James Gayder," setting out the history of the
IIT investigation, pointing out her concerns about the Charter of Rights
provisions regarding unreasonable delay in laying charges, and quoting a
Supreme Court of Canada decision decrying the necessity of "freeing the
guilty" because of such delays. The letter stated that she had been informed
by Sergeant VanderMeer that he had reasonable and probable grounds to
believe Mr. Gayder had committed criminal offences, and referred to a
"Crown Brief that had been prepared "which lends itself conclusively to
the determination that a prosecution against Mr. Gayder could be success-
fully pursued. This view is shared by Chief of Police Shoveller. This sit-
uation has in my view passed the state of urgency and has now reached
crisis proportion ... I am concerned as well with the influence on the ulti-
mate and inevitable prosecution of Mr. Gayder."

In a memo to Chief Shoveller of the same date, Mrs. Taylor pro-
posed three courses of action: (1) Continue to wait and risk a charter
defence; (2) Give the Attorney General's department until noon on October
9, to give its opinion on the proposed charges, then call an emergency
meeting of the Board at the request of the Chief of Police and consider the
opinion before ensuring Sergeant VanderMeer that he can proceed without
fear of sanction from the Chief of Police; (3) That without waiting for the
reply from the Attorney General, the Chief inform Sergeant VanderMeer
that "he can proceed to discharge his duties as he sees fit, bearing in mind
Section 450' of the Criminal Code of Canada, with no fear of sanction
other than of course a potential civil suit for malicious prosecution. I am
informed that Sergeant VanderMeer is willing to assume responsibility and
costs for any subsequent civil suit framed in a cause of action of malicious
prosecution." The memo suggests that the Attorney General may be reluc-
tant to assign a Crown Attorney to prosecute the charges, "given (1) the his-
tory of this matter; and (2) the involvement of those in senior positions of
both the Ministry of the Attorney General and Solicitor General." It went
on to state that, without suggesting a private prosecution, perhaps the ap-
pearance of justice in general and impartiality in particular would be best
served by the Niagara Regional Police assuming full responsibility for the
matter, including choosing a counsel who was a Crown Attorney or
part-time Crown Attorney "who would prosecute the charges."

' Section 450 covers "Arrest without Warrant".

266 The Call for an Inquiry

Shoveller testified that he was "more than a little upset" on re-
ceiving the memo, and upon discussing it and the letter with Mrs. Taylor,
he told her that it was "totally and absolutely outside of her area of re-
sponsibility." He refused to adopt any of the alternatives suggested in the
memo.

The next day VanderMeer sent a long memo to Moody questioning
the motives behind the delay by Hunt in delivering the Ministry's re-
commendation on the Gayder briefs, stating that "We suspect that Mr.
Wolski's motives may be other than what one would reasonably expect ....
Because of Mr Wolski's indecisiveness ... I sought the advice of two former
Crown Attorneys ... both concluded that in most instances, particularly as
it related to the weapons and the tires, sufficient evidence existed to suc-
cessfully prosecute and convict James Arthur Gayder." The memo pro-
ceeded, for some obscure reason, with what can only be characterized as a
litany of speculative and very scurrilous gossip about the careers, motives
and extremely personal lives of some members of the Ministry, gleaned
from "a source who is privy to the inner workings and personalities of the
Ministry of the Attorney General."

Somewhere around this time VanderMeer and Mrs. Taylor met
Moon in VanderMeer' s home, apparently seeking Moon's assistance in
calling for a public inquiry. Moon testified that he told them: "I said
'You've got Shoveller in as Chief. He is the man you want. You fought to
get him in ... why don't you let bygones be bygones? ... All these things are
small, and you have got nothing big and sexy. You just don't have it.
Queen's Park isn't going to give you a public inquiry.' And they were
putting it to me, you know, ' Well, if they aren't going to charge Gayder,
you are our last chance to try and force an inquiry.' I said,'.... Yes, I will
write a legitimate story. But I don't think you've got it.'.... They felt it was
in the interests of the police force and the community to have a complete
airing about all the stuff that was being discussed in the community ... and
let people know the truth whatever the truth might be."

On October 15, 1987, at a meeting in the offices of the Ministry of
the Attorney General, Chief Shoveller and members of the IIT were advised
by Douglas Hunt that the Ministry was recommending against the IIT's sub-
mission that criminal charges should be laid against Mr. Gayder, and they
were given a copy of Wolski's memo examining the allegations which came
to the same conclusion. This resulted in what Moody described as a "very
heated" discussion between Shoveller and Hunt. Rattray, a member of the
IIT, who had not been to the Toronto meeting, testified that on their return

The Call for an Inquiry 267

to headquarters, those who had attended were "Hvid," and there were claims
of political interference. VanderMeer immediately telephoned Mrs. Taylor
to report, as did both Shoveller and Moody later that evening.

The following morning the IIT met with Shoveller and went through
Wolski's report. Sergeant VanderMeer began preparing a brief for the Board
with the assistance of a lawyer, rebutting the Wolski report point by point.
This was the brief that was later released by VanderMeer to Moon of the
Globe and Mail. Mrs. Taylor was present for at least a portion of the meet-
ing. She received a copy of Wolski's report, and her notes contained three
pages of hand-written comments on the report. On October 22, Shoveller
presented the Board with the IIT brief summarizing Wolski's report and re-
butting his conclusions that Gayder should not be charged. The tape of the
meeting indicates the Board discussed requesting a public inquiry as an al-
ternative to the laying of charges. Shoveller stated that, in his view,
offences had been committed. The "museum defence" was discussed, and
Shoveller stated that he was not aware of any intention to "form, or set up,
a weapons museum." The Reintaler knife was discussed, and Mrs. Taylor
referred to it as "a really important, a very important point" because of the
court order for its destruction. It is apparent that the IIT's faulty in-
vestigation of these matters influenced the Board. The Board discussed what
further steps should be taken, and decided to seek independent legal advice.
It instructed Police Board counsel to retain three criminal lawyers to ex-
amine the IIT briefs, and deliver an opinion as to whether there were
grounds to lay charges against Gayder. The trading of firearms, which had
been condemned by the IIT, was discussed and Shoveller stated there was
no record of these transactions being authorized by any Board since the in-
ception of the Regional Force. Mrs. Taylor referred to the practice as "ob-
scene" and stated "This has to go public."

According to the tape, this prompted a remark from one of the
longer serving members, William Dickson, who had been absent on va-
cation at the time of Gayder' s suspension: "... before we proceed any fur-
ther ... we better make sure that we get everything dotted and crossed be-
fore we go with this, because I think, as far as public opinion is concerned,
and I have to say this honestly, we've got our pound of flesh. This Board
has got its pound of flesh. Do you want the whole carcass?" During the
lengthy discussions, there was no mention of infiltration of the Force by
organized crime, one of the matters of concern repeatedly referred to in
press releases issued by the Board during the Inquiry hearings, decrying the
delay in reaching that phase of the Inquiry. The discussion revolved around
possible charges against Gayder.

268 The Call for an Inquiry

That day, Mrs. Taylor retained, as counsel for the Board, one of the
lawyers whom VanderMeer had referred to in his memo to Moody of
October 6. He was instructed to carry out the Board resolution directing the
retaining of three criminal lawyers to prepare separate opinions on the IIT
brief. The letter of retainer, which Board counsel sent to the three selected
lawyers on October 27, advised that their identity would not be made
known, and that, since Chief Shoveller had decided that no criminal charges
would be laid, their opinion would not be used to support any prosecution
of Gayder under the Criminal Code. The letter, a copy of which was filed
with the Board, went on: "Further, you should know that our client may be
urging the Province of Ontario to call for an Inquiry into the activities of
James A. Gayder .... Although I cannot conceive of a situation wherein the
focus of an Inquiry, should it be ordered, would go beyond an analysis, in-
vestigation and evaluation of Mr. Gayder's activities, neither we nor our
client would have any control over the parameters." It is thus apparent that
the Inquiry then contemplated by the Board was to be an investigation of
ex-Chief Gayder, rather than one into the administration and operation of
the Force.

Sometime following the October 22 Board meeting, VanderMeer de-
livered to Moon a copy of the IIT critique of the Wolski opinion, on con-
dition he would not do a story on it until authorized to do so by Vander-
Meer.

During this period, the IIT was continuing with its investigation of
Gayder and his guns, particularly the Ross guns. It was not until November
3 that Ross was located and interviewed. On November 5, the Board met
to consider the opinions received from the three lawyers, and VanderMeer
was present to answer questions about Gayder's guns. A resolution was pas-
sed that the Board deliver to the Solicitor General a request in writing "for
a public inquiry into allegations of improprieties involving Niagara Police
Force officers as investigated." This would seem to contemplate an inquiry
into only those matters that the IIT had investigated.

A letter to the Solicitor General was prepared formally requesting
a public inquiry, and outlining the background leading to Gayder's sus-
pension. It refers to the situation having reached "crisis proportions in the
last few months due largely to allegations involving James A. Gayder," that,
"On February 17, 1987, an investigation into alleged improprieties by Mr.
Gayder during his tenure as a peace officer was commenced" and that after
Gayder's resignation "the investigation which was focused on Mr. Gayder
continued." The only matters referred to are allegations against Gayder.

The Call for an Inquiry 269

VanderMeer and Melinko delivered the letter to the Solicitor Gen-
eral's private secretary on November 6, and on November 8, Mrs. Taylor
and VanderMeer met local MPP Jim Bradley to urge his support for a pub-
lic inquiry. On November 13, the Solicitor General wrote Mrs. Taylor
stating that a decision as to ordering an inquiry was premature pending a
decision by the Chief of Police as to whether her charges would be laid.
The letter pointed out: "You have also indicated that "we" disagree with the
advice as to the absence of reasonable and probable grounds. I find these
statements to be somewhat troublesome in that they appear to convey a mis-
understanding as to the separate and distinct function of a governing
authority such as your Board and the Police Force itself. Put simply, I do
not feel that it is appropriate for the Board to be involving itself as to the
appropriateness or inappropriateness of charges in any specific case. To do
so is to cross a dangerous line between an operational independent police
force, free from political and bureaucratic interference and one that is
subject to the day-to-day direction of a combined elected and appointed
civilian authority. While I am absolutely convinced (as are the police
themselves) that the police must remain generally accountable to a civilian
authority, this is not to be confused with direction or indeed involvement
on a case-by-case or issue-by-issue basis. To confuse such differing re-
sponsibilities will lead to allegations of manipulation of the police." The
letter then stated that a decision on calling an inquiry was premature since
it was up to the Chief as to whether to lay charges.

By a memorandum, dated November 15, Shoveller advised Mrs.
Taylor that in view of the Attorney General's recommendation after re-
viewing the IIT briefs, he would not be laying charges. On that day, a
Sunday, the Board held an emergency meeting with Shoveller and the
Board solicitor. It is apparent from their minutes that the Board was un-
happy about the "knuckle rapping" that it had received from the Solicitor
General. A motion was passed directing Shoveller to reconsider his decision
not to lay charges. The Board endorsed Shoveller's intention to make a
public statement "with respect to allegations of improprieties by certain
individuals while they were members of the Niagara Regional Police Force
and the concomitant consultations including those with the Ministries of the
Attorney General and Solicitor General of Ontario." At that time, the only
specific allegations of improprieties the Board had, and the only ones re-
ferred to in the correspondence with the government ministries, were those
against Gayder. The Board also requested Mrs. Taylor to issue a public
statement. That day a Board press release was issued summarizing the in-
ternal investigation and the Solicitor General's response to the request for

270 The Call for an Inquiry

a public inquiry, and stating that the Chief had been asked to reconsider
"the entire matter."

On November 18, during question period in the legislature, Mel
Swart referred to the Solicitor General's letter to the Board rejecting a
public inquiry, and mentioned a possible "coverup." He added: "Is not this
the real reason she does not want a public inquiry? The trail of guilt might
lead right up to her Ministry."^

On November 19, the Toronto Star published an article about the
IIT five-volume report and the call for a public inquiry, followed by a long
article on November 23, with photographs of Gayder, Shoveller and Mrs.
Taylor. Shoveller was quoted as saying the report was "staggering," and if
criminal charges were laid, there would be no need for a public inquiry.

On November 23, the Board met and passed another resolution re-
questing the Solicitor General to order a Judicial Public Inquiry "into
allegations of improprieties within the Niagara Regional Police Force and
the process by which such allegations were addressed." It also received a
draft six-page press release, prepared by Shoveller, in which he summar-
ized the IIT investigation without identifying those being investigated. He
stated that although it was his view that the evidence supported the laying
of criminal charges, in view of the opinion of the Attorney General's Min-
istry that there were not reasonable and probable grounds to believe that
any offence had occurred, "I then exercised my independent discretion in
concluding that charges should not be laid." He referred to the Board's
efforts to obtain a public inquiry, and indicated his support.

The press release was approved by the Board.

That evening, Mrs. Taylor met with VanderMeer at her home, and
she expressed her frustration at the delay in calling an inquiry. She testified
that VanderMeer told her "The presses are rolling" and that she was "in
shock" and asked him what he had done, but he did not reply. The next
morning, November 24, the Globe and Mail published Peter Moon's
front-page story about the IIT and Gayder' s guns. VanderMeer freely ad-
mitted he had given the material to Moon because he believed a public in-
quiry was necessary. That day, Mel Swart referred to the article in the leg-
islature, and again called for an inquiry.

Hansard November 18, 1987 L- 1500-1 [found in Taylor's notes vol. 6 p. 647].

The Call for an Inquiry 271

At 9 a.m. the next morning, November 25, the Board's resolution
requesting a "Judicial Public Inquiry" and Shoveller's press release, together
with a covering letter advising that both documents would be made public
that day, were delivered to the Solicitor General by Rattray. Later that
morning, Mrs. Taylor read the letter to the Solicitor General, and released
it and Shoveller's press release to the media.

That afternoon, November 25, the Solicitor General announced in
the legislature that a public inquiry into the NRPF would be conducted.

On December 1, the Administrator of the Niagara Region Police
Association wrote the Solicitor General: "It is the belief of the Executive
of the Association that the Inquiry you have directed, in order to restore
public confidence, must address all of the operations, administration and
affairs of the Force, and in addition should examine how the Boards of
Commissioners, including the present Board of Police Commissioners, have
conducted themselves .... If the Inquiry addresses only the firearms found
at the Police Station or the hiring practices of the Police Force, it is our
view that little or nothing will be accomplished with respect to the restor-
ation of confidence in this Force." Gayder's counsel wrote the Solicitor
General a letter, dated December 1, urging that the terms of reference be
sufficiently broad "to include a full examination of the current senior
management and administration of the Force, and especially of the conduct
and roles played by the Chairman of the Board and the current Chief of
Police."

On December 2, Mrs. Taylor and Board counsel met with the Sol-
icitor General and her deputy regarding the terms of reference of the
Inquiry, and emphasized that the Board wanted them to include an inquiry
into the Ministries of the Solicitor General and Attorney General. On
December 12, Board counsel wrote the Solicitor General on behalf of the
Board setting out, seriatim and in specific detail, suggested terms of ref-
erence and the type of judge, counsel and investigators the Board would
consider acceptable.

When, on February 17, 1988, the Solicitor General announced the
terms of reference, Mrs. Taylor wrote taking strong exception to the fact
that "public authorities" were not included as subjects of the investigation.
The Solicitor General replied on March 9, that "The focus of the public in-
quiry is the operation and administration of the Force rather than an ex-
cursion through the operation of a myriad of public agencies that may have
had dealings with the Niagara Regional Police Force." Board counsel

272 The Call for an Inquiry

replied on behalf of the Board by letter, dated March 17, 1988, which
clearly indicated that it was the Ministries of the Attorney General and the
Solicitor General that the Board wished to have included in the Inquiry, and
named individuals in the ministries it would expect to be examined at the
hearings. It was apparent that the Board considered that the Inquiry was its
Inquiry, rather than a completely independent Inquiry. This perception, and
the resentment when it was realized that this was not the way in which the
Inquiry was being conducted, plagued the proceedings throughout the Com-
mission hearings.

On March 25, 1988, the Order in Council was passed appointing
this Commission and setting out the terms of reference included in the
appendix to this report.

The first session of this Commission, an administrative hearing, was
held on June 27, 1988. At that time. Board counsel made an application to
extend the terms of reference to include investigations into the NRPF by
"any public authorities," rather than only "other police forces or police
agencies," intimating that the conduct of the Attorney General's Ministry
in recommending that charges not be laid against Gayder should be
examined and stating that "allegations may go to the integrity of some
decisions that have been made by government agencies." He described this
as "the most important aspect" and "the most grave concern" to the Board.
I allowed him additional time to file a supplementary brief, and on July 6,
delivered my ruling, refusing the application for the reasons set out in my
ruling.^

In my ruling, I recommended to the Solicitor General that several
parties to whom I had granted standing should be funded, or partially
funded, by the province because they would not otherwise be able to afford
legal representation. In all, during the course of the Inquiry, 22 parties were
granted standing, and 16 parties were granted funding.

It was not until the middle of October, 1988, that the recom-
mendation regarding funding was approved by the Solicitor General, with
legal fees to be paid out of the Commission's budget at the same rate as
that fixed for Legal Aid. At the hearing of October 17, counsel for Gayder
advised that he could not continue to represent Gayder at legal aid rates,
and a one-month adjournment was granted to allow Gayder to retain new

Appendix 1.

The Call for an Inquiry 273

counsel. Board counsel strenuously objected to the adjournment, submitting
Gayder should be able to proceed without counsel.

The Board had also applied for funding by the Commission. I ruled,
however, that the Board did not come within one of the five criteria I had
established for qualification for funding, namely: does the applicant have
sufficient resources to generate the funds required to adequately represent
its interest? This ruling was the subject of protests and press releases by the
Board and Regional Council throughout the hearings. Eventually, upon Mrs.
Taylor advising me by a long letter, dated April 25, 1990, that the Board
had exceeded its budget for legal expenses, had been refused further funds
from the Region, and would be unable to continue to finance legal repre-
sentation at the Inquiry, I arranged through the Solicitor General for the
payment to the Board of $250,000 which was taken out of my Commission
budget. Approval of the payment took almost a year, during which the
Board continued to be represented by its counsel. It was therefore rather
surprising to learn that, shortly after the payment was made, the Board com-
menced, with outside counsel, a very expensive and unsuccessful appeal of
certain Commission rulings, which must have consumed a large part of the
new funds.'*

The Commission's first evidentiary hearing was held on Monday
November 14, 1988, and the main body of evidence concluded on Novem-
ber 20, 1990. Due to the various motions and judicial applications that
followed, final submissions were not delivered until July 15, 1992.

I am satisfied that the main purpose of the Internal Investigation
instituted following Gayder's suspension was to obtain evidence of criminal
activity on Gayder's part in order to justify his removal. The IIT investi-
gation centered on Gayder. The IIT briefs presented to the Attorney General
were referred to as "the Gayder briefs" and dealt almost exclusively with
Gayder. Board counsel's letter briefing the three criminal lawyers who were
to give an opinion in relation to the criminal charges against Gayder made
this clear. It stated that there might be a public inquiry, and that counsel
could not conceive that it would deal with anything but Gayder. Mrs. Tay-
lor's memo to Shoveller of October 5, 1987 voiced her great concern, and
that of VanderMeer, about the delay in charging Gayder, to the extent that
she stated VanderMeer was prepared to lay the charges even at the risk of
being sued for malicious prosecution. She proposed hiring a part-time

See p. 293.

274 The Call for an Inquiry

Crown Attorney to prosecute the charges if the Attorney General was un-
willing to do so.

Mrs. Taylor's October 5, 1987 letter to the Attorney General was
about her concern that the delay in delivery of the Attorney General's
recommendations concerning the laying of criminal charges against Gayder,
might afford Gayder a defence based on unreasonable delay. None of the
communications to the Attorney General indicated an interest in anything
but Gayder's suspected wrongdoing.

When the Attorney General's recommendation failed to produce
charges against Gayder, instead of gladly accepting that as an official
determination of an unpleasant episode in the Force's history, and as an
opportunity to start afresh, Mrs. Taylor commenced a vigorous campaign
for a public inquiry. VanderMeer supported this campaign by turning over
the IIT's flawed critique of the Wolski opinion to Peter Moon for pub-
lication in the hope that it would pressure the Attorney General or Solicitor
General to call an inquiry into Gayder's suspected criminal activities. The
expectation was that the Inquiry would establish Gayder's guilt, and thus
justify the "messy manner" in which he had been removed.

It is apparent that, had the Attorney General recommended criminal
charges against Gayder, the Board would not have called for a public in-
quiry. The Board had not been fully briefed by Mrs. Taylor, who had al-
ready decided that a public inquiry was necessary. Thus, having received
the Ministry's negative opinion, as presented in the IIT's summary brief,
and not being aware of the flaws in the IIT briefs, it must have appeared to
the Board that a public inquiry was the appropriate course to by-pass the
Ministry's recommendation. On the evidence as they knew it, they became
so convinced of Gayder's manifest guilt that they believed that anyone who
disagreed, including the Attorney General's Ministry, must be doing so for
an improper purpose.

In the light of all the evidence, I cannot accept Mrs. Taylor's test-
imony that she had not intended that the public inquiry should concentrate
on Gayder's alleged misconduct.

The Board, of course, had no mandate to obtain legal opinions as
to whether criminal charges should be laid against anyone. That is a matter
exclusively within the jurisdiction of the police. Instead, by meeting with
a member of the IIT in her home, by attending IIT meetings, even if only
for coffee as she claimed, in spite of other evidence that her participation

The Call for an Inquiry 275

was "intense," by meeting with a politician and a journalist with Vander-
Meer, and joining with VanderMeer in pushing for a public inquiry, Mrs.
Taylor blurred the distinction between the Force and the Board. The
distinction is important; the Board is intended to provide an independent
civilian body to make policy decisions for the Force, and it must maintain
some distance between itself and the Force so that it may have the per-
spective to perform its function. By involving herself too closely with the
operational side of the Force as represented by the IIT, Mrs. Taylor made
it difficult for the Board to make a genuinely independent assessment of the
evidence justifying a call for a public inquiry.

Her actions in enlisting the aid of the media in the call for an
inquiry, and VanderMeer's in leaking confidential (and flawed) information
to the media, did substantial harm to the reputation of the Force and public
confidence in it.

The questions the IIT briefs posed to the Attorney General asked
whether the conduct alleged constituted a specific criminal act. Wolski's
usual reply was that no reasonable and probable grounds existed to support
a criminal charge. In his report, both written and oral, to the Board dis-
agreeing with almost all of Wolski's conclusions, VanderMeer strongly crit-
icized Wolski for wrongly considering whether there was a reasonable like-
lihood of successful prosecution in coming to his conclusion. This same
criticism was repeated at length at the hearings by both VanderMeer and his
counsel, submitting that the IIT was right in its conclusions that criminal
charges should have been laid.

It is difficult to understand the IIT's (and the Board's) obsession
with "reasonable and probable cause" justifying the laying of a criminal
charge, to the point of disregarding the probability of the charge being dis-
missed. Their view was that criminal charges should be laid (with all the
attendant publicity) and only then should "prosecutorial discretion" be con-
sidered. Once a criminal charge against Gayder was laid, regardless of the
outcome perhaps months later, the harm would have been done. Not only
would Gayder' s reputation have been shattered, but so also would have
been the public's confidence in the Force, already damaged by the events
of the previous spring. The only explanation seems to be that VanderMeer
and Mrs. Taylor were determined to attempt to prove wrongdoing on the
part of Gayder, in order to justify his suspension and subsequent resig-
nation, and persuaded the Board to support the efforts to obtain an inquiry
for that purpose.

276 The Call for an Inquiry

There seems to be no other explanation for the reaction of the Board
to the conclusion in the report of the Ministry of the Attorney General that
there were not sufficient grounds to lay criminal charges.

Following receipt of that report, had the Board been truly interested
in the well-being of the Force, the report provided them with the oppor-
tunity to issue a press release emphasizing the excellence of the NRPF, and
pointing out that the Ministry of the Attorney General, the highest law
authority in the province, after examining voluminous reports prepared by
internal investigators following months of intensive investigation of all the
rumours, had found that no criminal charges should be laid against ex-Chief
Gayder or any Force member.

Moreover, at that point, had the Board been prepared to say:
"Gayder made mistakes, we made mistakes, now let's forget the past and
apply the lessons learned to correct administrative and organizational
defects for the good of the Force", a great deal would have been accom-
plished, and possibly this Inquiry, with its tremendous cost to the public and
damage to morale and reputations of many people, might have been
avoided.

However, once the Board issued a press release disagreeing with the
conclusions of the Ministry of the Attorney General and calling for a public
inquiry (and the flawed IIT report was leaked to the press), a public inquiry
to investigate the published allegations became inevitable.

The obsession with proving before the public that the IIT and the
Board had been right, and the Ministry had been wrong, had a very unfor-
tunate effect on the course of the Inquiry. Had the Inquiry been able to look
at the defects in administration only with a view to proposing corrections,
instead of some of the parties being more interested in proving misconduct
on the part of other parties and alleging a cover-up if they were not allowed
to do so, substantially more than half the Inquiry's hearing time and cost
could have been saved, with constructive rather than destructive results.

The many adverse rumours circulating about the Force, followed by
the IIT's internal investigation, caused so much damage that a public in-
quiry had to be called, but the manner in which the inquiry was pursued
unnecessarily caused further damage to the Force's public image.

7 ROLE OF THE BOARD

(A) THE BOARD - 1970 to 1987

The role of the Niagara Regional Board of Commissioners of Police is re-
ferred to in four of the Commission's terms of reference. Victor Mac-
Donald, of Queen's University, prepared a report on that subject for the
Commission's November, 1989 workshops.

The first Niagara Regional Board of Police Commissioners, ap-
pointed in January, 1970, at the inception of the NRPF, consisted of a
county court judge, a lawyer and a businessman appointed by the province,
and two members of the new regional council appointed by the Council. As
earlier indicated, true amalgamation of the 1 1 local police forces was not
easy to achieve. There was some reluctance on the part of some of the for-
mer local municipalities to accept a Board which, by its statutory compo-
sition, could not accommodate representatives from each of the 1 1 former
municipalities. There also was concern that their Police Force was admin-
istered from another municipality.

The early years of the Force were remarkable for the continuity of
the membership of the Board. There were few changes in the regional mem-
bership, and the original three provincial appointees remained in office until
1984. In 1984 two of the latter were replaced, and the third was replaced
in 1985. All three of these provincial appointees were replaced in 1986, and
again in 1992.

During the early years, extending into the 1980s, it appears that the
Board, recognizing the Chiefs administrative problems in integrating the
new Force, saw its role as primarily supportive of the Chief. Disagreements
with the Chief were fought out in in camera sessions, and since many of
the meetings during the Force's formative years involved personnel, Force
structure and political conflicts within the region, there evolved a tendency
to hold a large proportion of them in camera, to the frustration of the media
and some citizens.

Chief Shennan, a St. Catharines native, retired in 1977, and Donald
Harris of Niagara Falls was appointed Chief. Chief Harris was seen to be
relatively autocratic, and leaned toward the military approach to police
administration. Conflicts between the Chief and the Police Association grew
as Harris tried to achieve more control of the decentralized Force, and some
officers felt they had not been treated fairly in jobs and promotions during
the integration process. Meanwhile, the Board remained supportive of the

27 S Role oj the Board

Chief, despite some conflicts with him. The Board took its duties very ser-
iously, and spent a great deal of time on police matters, but kept relatively
distant from internal Force management.

Deputy Chief James Gayder, of St. Catharines, succeeded Harris as
Chief on January 1, 1984. Gayder was seen as affable, easy-going and less
demanding than Harris. He established a better working relationship with
the Police Association and with some of the area municipalities and was
popular with most of the Force members. However, the investigations by
the OPC in 1984, and by the OPP in 1985 and 1986, indicate that some
sloppy management practices had crept into the administration over the
years. A change in the make-up of the Board and in the concept of some
of its members as to the Board's role, as a result of the 1986 provincial
appointments, set the stage for the disruptive events that swept the Force in
early 1987.

The three new members appointed by the province in January 1986
were, Denise Taylor, a former member of St. Catharines city council, James
Keighan, a former mayor of Niagara Falls, and Robert Hanrahan, Dean of
Administrative Studies at Brock University. None had any background in
policing matters. Although there were educational programs for new com-
missioners offered by the OPC, the new members did not attend them, but
they attempted to educate themselves by reading literature made available
to them. William Dickson, a region appointee to the Board for several
years, was elected Board chairman, and Mrs. Taylor was elected
vice-chairman. Mrs. Taylor took a "hands on" approach to her new job, and
began meeting with local political and legal figures to obtain their views of
the Force, arranged to have personal tours of the police facilities and ac-
companied an officer on his cruiser patrols.

The entry upon the policing scene of Mrs. Taylor, an intelligent,
hard-working, extremely active person, naive about police management, but
with recent experience in the rough and tumble of local politics, and per-
ceived by many to be ambitious, was bound to have repercussions. Former
boards were seen by her as being "old boys' clubs." She actively pursued
a policy of "openness and accountability," contrary to the existing pro-
cedures for the handling of sensitive Board business. Friction developed
between some other Board members and her over her aggressive style and
her willingness to go to the media without obtaining Board authority. As an
example, Mrs. Taylor issued a press release, on Board letterhead, dated May
28, 1986, which commenced: "Once again, it is necessary for me to bring
to your attention the fact that this Commission has conducted important

Role of the Board 279

business behind closed doors (May 26). The purpose of this meeting was
to discuss the tendering of a major addition to the Force's computer system.
This item is hsted in the Capital Budget in 1987 and 1988 and totals $2.37
million. Both prior to and during the meeting, I challenged the need for it
to be held in camera.... I find that some of my colleagues have an obses-
sion for secrecy. It is time for this to end. I am therefore reintroducing my
motion to restrict in camera items at the next meeting of the Commis-
sion." Apparently this led to the Board seeking legal advice as to the right
of a Board member to use the Board letterhead. Nevertheless, Mrs. Taylor's
conscientious approach to her duties must have impressed the other Board
members, since, a year after her appointment to the Board, she was elected
chairman.

Even before becoming chairman of the Board, during her first year
Mrs. Taylor had developed a high profile. She met with police officers to
learn about the operation of the Force, and in the process listened recep-
tively to their criticisms. Having proved to be approachable, accommodating
and uncritically sympathetic to complaints, she came to be known as the re-
pository to whom complaints should be addressed. From there she pro-
gressed to accepting "information," rumours and allegations not only from
Force members, but from non-Force characters of questionable reputation
and credibility who had an "axe to grind" and who, for their own purposes,
suggested that there was corruption at senior levels of the Force. Virtually
all this "information" was hearsay, but because she heard it from more than
one source, Mrs. Taylor became alarmed. The only Board member to whom
she communicated any of this information was Hanrahan, who told her he
had heard some of the same things, but had not taken them seriously. Ap-
parently misunderstanding the collective role the Board should play in such
matters, and not feeling she could trust some of the members, she did not
inform the other Board members.

Consequently, not having all the information, the Board was unable
to play an enlightened role during one of the Force's most critical periods,
and was placed in a position of making crucial decisions on short notice,
relying on a minimum of information. This was the case in connection with
the charges Mrs. Taylor laid against Gayder without prior consultation with
the Board. The charges having been laid, the other Board members were ad-
vised by the solicitor Mrs. Taylor had brought to the meeting that they had
no alternative but to suspend the Chief. As one Board member said: "I
didn't know she was going ahead with it ... I was hoping to God that she
had enough, you know, to back up what she had done."

280 Role of the Board

Gayder's suspension and consequent resignation was followed by
the events described earlier in this report, in which Mrs. Taylor took an
active role in promoting the investigation of Gayder's conduct by the IIT
both at the Force level and in contacts with the media and political figures.
When that investigation did not result in criminal charges, she led a cam-
paign for a public inquiry which, at least in part, was intended to inquire
into the reasons why no charges were recommended.

Mrs. Taylor obviously believed in a proactive approach. She inter-
viewed Force members, local lawyers, a Crown Attorney and Pinocchio
about possible misconduct within the Force, obtaining both generalized and
specific allegations of improprieties and criminal conduct, mostly based on
second or third-hand information. By acting on her own, Mrs. Taylor be-
came involved in the rumourmongering process. The proper course would
have been to involve the Board, so that it could decide what, if anything,
should be done with it. Normally, worthwhile information would be passed
on to the Chief, as the head of the law enforcement authority. Neither the
chairman nor the Board are in the business of investigating such matters.
If the Chief was suspect, then it is essential that the Board, which appoints
the Chief, be given the information, so that it could make an informed de-
cision as to the best course of action, such as consulting the OPC about
calling in an outside force to investigate. The Board, not one of its
members, must make such decisions. Certainly a Board member should not
be consulting with a member of the Force on such matters.

During this time, the Board chairman was meeting from time to time
with media representatives, Clarkson of the Standard, McAuliffe of the
CBC, and Moon of the Globe and Mail, about allegations of misconduct in
the Force. Pinocchio was present at a meeting with Moon so that Moon
could hear his allegations. Such information, particularly when it consists
of unproven allegations, should not be provided to the media. If guidance
is being sought, it should be sought from the Board, or, if the Board so de-
cides, from a law enforcement body.

Mrs. Taylor did consult the Solicitor General on January 15, 1987,
but personally, not as an official representative of the Board. Her letter to
the Solicitor General after the meeting was on her personal letterhead, not
that of the Board. She discussed the meeting with Sergeant VanderMeer,
but not with the Board. On January 27 she discussed with her neighbour,
John Crossingham, her intention to charge Gayder; on January 29 she
checked references regarding lawyer William Dunlop with a view to retain-
ing him concerning the proposed charges. On January 30, she met with

Role of the Board 281

Shoveller and Crossingham, in the presence of VanderMeer, and advised
Shoveller of her intention to charge Gayder. On January 31, she met with
Dunlop to discuss the charges, and on February 1 met with Jim Bradley, the
local MPP to inform him of her intention to charge Gayder. For the next
few days she prepared for the laying of the charges and consulted Crown
Attorney Andrew Bell and Dunlop concerning their wording. None of these
intentions or preparations were disclosed to the Board as a whole, although
VanderMeer had told Hanrahan privately.

Thus, when Mrs Taylor laid the charges against Gayder on February
5, the Board was faced with a fait accompli and were advised that they had
no alternative to suspending Gayder in the face of the charges that had al-
ready been laid. While any member of a Board can lay a charge against a
Chief, I am firmly of the view that such a course of action is, because of
its impact on the confidence of the public in its Force, probably the most
serious and important matter that could come before a Board. It was un-
necessary and improper to force such a momentous decision upon a Board
without adequate notice to and consultation with all Board members, and
in the absence of the former chairman who was on vacation.

Judge Killeen, a respected former chairman of the London, Ontario,
Board of Police Commissioners, frequently prepared papers for delivery at
annual seminars of the municipal Police Authorities. In his 1985 paper on
the role of members of Pol ice Boards, he quoted S .3 1 ( 1 ) of Police Act Reg-
ulation 791 \ "No chief of police, constable or other police officer shall take
or act upon any order, direction or instruction of a member of a board or
council." He continued: "The whole thrust of Part II of the Act, as rein-
forced by S.31(l) of Regulation 791, is that a board can only act legally
when it acts collectively. Individual members, including the chairman, can-
not embark on 'power trips' or frolics of their own." In his 1987 paper for
the MPA, Judge Killeen said: "My final profile is of the commissioner who
envisages himself not as a policy-maker cum governor of the force but
rather as a 'super-chief of sorts who wants to engage in an activist oper-
ations role within the force .... This kind of a commissioner does not under-
stand his role ... he is acting against the best interests of the force and
usually becomes a divisive presence on the board and within the local
police structure generally."

Mrs. Taylor's actions were in direct contravention of the proper role
of a member of a police services board as so accurately and graphically pre-
scribed by Judge Killeen. She was seen by many to be adopting the role of
a police commissioner in the USA, who is often a sort of "super chief" In

2S2 Role of the Board

Canada, members of a police board are bound to act collectively, and that
is the only way its actions can be legal.

In Police Headquarters in St. Catharines, the offices of the Chief and
Deputy Chief are located in the same areas as the Board offices. During the
events leading up to Gayder's suspension, and during the IIT investigation,
Mrs. Taylor's frequent visits to Shoveller's office apparently caused concern
as to who was in charge. I am well aware of the tightness of police budgets,
but, in order that the separation of the roles of the Board and of police man-
agement be clearly seen, the offices of the Police Services Board should be
located in premises separate from Police Headquarters.

Good intentions, conscientiousness and hard work do not necessarily
lead to the effectiveness of a police services board. The board has a com-
plex role. It operates in a political context but has both administrative and
quasi-judicial responsibilities. This represents a considerable challenge for
lay persons, even if they have general experience and good educational
backgrounds. It is essential for the efficient and orderly operation and ad-
ministration of a police force that there be a clear understanding of the re-
spective roles of the Chief and the Board, and that each understands what
the other perceives as its role in a particular situation. It is not enough to
merely state that the board is responsible for policy and the Chief of Police
is responsible for operations. Many important management issues fall in a
grey area between policy and operations. Such issues need to be dealt with
by a board working with its Chief, each having a clear understanding of
what actions require joint action and co-operation, and what fall within the
exclusive jurisdiction of the other.

This calls for adequate education and guidelines for new Board ap-
pointees. It appears that, until quite recently, these have been lacking. The
Municipal Police Governing Authorities, made up of police commissions,
was formed in 1963, and by the 1970s was providing two conferences each
year; a labour relations workshop; a newsletter; and, in co-operation with
the OPC, seminars for new Board members. However, participation in these
services was not compulsory. Following the passing of the Police Services
Act, the name of the Association was changed to "Ontario Association of
Police Services Boards," referred to as OAPSB. In 1989, the Association
made a proposal to the Solicitor General, which was accepted, to jointly
establish a police board training program. The program, managed and dir-
ected by OAPSB, includes two annual conferences where members can dis-
cuss current issues and problems; various educational workshops at different
centres throughout the province; labour relations statistical services; and

- - Role of the Board 283

some publications, such as PSB News and a handbook for Board members
which is presently being revised to accord with the new Act. Stuart Ellis,
who was retained as Board counsel in the spring of 1992, had some excel-
lent suggestions for matters that should be covered in a handbook. While
most of them are probably contained in the projected handbook, his sug-
gestions might be of some assistance.

These matters are:

(a) The general jurisdiction of Police Services Boards;

(b) Specific matters that a Police Services Board cannot embark upon;

(c) The implications inherent in actions by members of Police Services
Boards particularly as such actions may relate to criminal or civil
liability or breach of regulation under or the provisions of the Police
Services Act itself;

(d) A summary of ancillary legislation such as provisions in the
Municipal Act or other legislation that may impinge or affect or
enhance the jurisdiction of the Police Services Boards;

(e) Some specific cases in point about the administration of Police
service generally such as:

(i) How to deal with media;

(ii) How to deal with concerns about the Police Chief;

(ill) Who to provide information to or relate concerns to;

(iv) Who to seek advice from;

(v) Specifically what an individual member of a Police Services
Board can or cannot do;

(vi) Specific identity of the types of matters that may be
regulated by a bylaw of the Board;

(vii) Specific matters relating to the conduct of hearings;

284 Role of the Board

(viii) Specimen or draft bylaws in order to present some
continuity of legislation or administration among Police
Boards in the province.

Unfortunately, none of the training programs is compulsory, and
attendance approaches only about 40 per cent of eligible members. Some
Boards insist that all their members attend; some have none attending. Most
present Board members were appointed within the last two years, with the
result that very few have had extensive experience. The position they hold
is too complicated and powerful to be held by amateurs or local politicians
not familiar with the complexities of modern policing. It is essential that
every newly appointed member attend the training program for new mem-
bers, and at least that program should be made compulsory. It has also been
suggested that new members, on completion of the training program, be re-
quired to pass a basic written test before being sworn in. The proposal has
merit, and should be considered by the Ministry of the Solicitor General.

Victor MacDonald, in his consultant's report to the Commission,
suggests the following briefings and information for new Board members:

• a clear outline of the type of information they need and should
expect from the Force, and why;

• a talk by someone who can discuss the Board's function from a
political perspective;

• an outline of professional management and operational police
standards;

• clear understanding of the responsibilities of the Board, how those
may overlap with the responsibilities of senior police managers and
how to resolve conflicts in jurisdiction;

• a quick review of labour relations including:

- ongoing relationships with the Police Association

- collective bargaining

- grievances, disputes, arbitration, etc.

• a quick review of and clear procedures for the handling of the
quasi-judicial functions [e.g. appeals of Police Services Act
charges];

Role of the Board 285

• a clear idea of where to go for information or advice and what to

do and where to go in the case of irresolvable conflict within the
Board or when concerns regarding the integrity of the Chief of
Police arise.

I agree with Mr. MacDonald's suggestions, and undoubtedly the
Ministry of the Solicitor General and the Ontario Civilian Commission on
Police Services (OCCPS) would have additional proposals for the improve-
ment of the education of Board members. An educational program should
be devised, and be made compulsory for all new Board members before
they are sworn in. The Police Services Act merely states: "The board shall
ensure that its members undergo any training that the Solicitor General may
provide or require." There is no regulation providing any sanction if the
Board fails in this duty, or requiring that training materials or facilities be
provided.

Had the type of information and training suggested above been com-
pulsory, and had the warning signals of trouble in the NRPF, and the ap-
proaches to the OPC and the Solicitor General been followed up by more
advice and assistance from the Ministry, it is possible that the crisis in
Niagara, and even the calling of this Inquiry, might have been avoided.

In addition to improved training procedures, in order to avoid what
occurred in Niagara in 1986 when three out of five Board members were
new appointees without prior experience, and again in 1992 when the Board
membership was increased to seven of whom six were new and without
prior experience, terms of office should be staggered so that the Board is
never left without a majority of experienced members.

Counsel for Chief Shoveller points out in his submissions that
Shoveller had only an acting role as Chief for more than six months fol-
lowing Gayder's resignation, and that this situation may create the appear-
ance that the Board is running the Force pending the appointment of a new
Chief

I agree that this undermines the appearance of independence of the
office of Chief of Police. When a vacancy in the Office of Chief occurs
suddenly, a new Chief should be appointed as soon as possible. There
should be a provision requiring that the Policing Services Division of the
Solicitor General's Ministry be notified in such a case, and that it should
assist the Board in expediting the appointment. Chief Shoveller is to be
commended for giving the Board a full six months notice of his intention

286 Role of the Board

to retire on February 28, 1993, thus allowing the Board sufficient time to
ensure that his successor would be appointed and ready to take over the
Chief's duties without any interregnum.

Another problem may arise under section 62 of the new Police Ser-
vices Act. While a board is no longer empowered to suspend a Chief of
Police, section 62 allows it to hold a hearing to determine whether the Chief
of Pohce is guilty of misconduct, and the Chief is given the right to refer
the matter to the OCCPS. It is unclear what the section hopes to accomp-
lish, or what disciplinary powers the board may have if it finds the Chief
is guilty of misconduct. As a matter of practice, and from the point of view
of the media and the public, this procedure is likely to be seen as having
the same effect as a charge under the former Police Act.

There are many factors that can cause friction between Chiefs and
boards, and because of lack of experience in policing problems on the part
of many Board members, and the possibility that politics can be seen to be
involved, a board should not have the power to investigate or discipline its
Chief. I would recommend that the Ministry of the Solicitor General con-
sider amending the section to delete any provision for the disciplining or
suspending of a Chief by his board, and instead, provide that, where the
board perceives a serious problem concerning its Chief, it should advise the
OCCPS, and that body should then take over the whole matter.

The Police Services Act imposes certain obligations on a Police Ser-
vices Board, and its members, but the only provision for sanction for failure
to comply is that contained in section 23, which requires a hearing, with a
right of appeal to Divisional Court. This procedure could cause months of
delay and considerable expense to all concerned. There may be occasions
of improper or unwise conduct on the part of Board members that do not
warrant a full-blown hearing, and where a simple "wrist slapping" by the
Commissioner or a member of the OCCPS would be effective. It may be
that it was assumed that the OCCPS has this as an inherent right, without
it being specified in the legislation. This is exactly what John McBeth of
the OPC attempted to do in September 1986.' I consider this was a proper
function of the OPC; however, it resulted in howls of protest that were re-
peated before this Inquiry. I recommend that the Ministry of the Solicitor
General consider spelling out in the legislation the right of the OCCPS to
"counsel" boards, in order to avoid similar reactions. Consideration might

See p. 207 ff.

Role of the Board 287

also be given to providing a right to summarily remove, or at least suspend,
a member found to be in serious breach of the member's obligations.

In their submissions, several counsel warned of the dangers of pol-
iticization of Police Service Boards. It was observed that, following a
change in government, when the terms of office of sitting Board members
expired, it often happened that an almost entirely new Board was appointed.
Mr. Ellis, new counsel for the Board, submitted: "If it is a general feeling
that the administration of police forces should not be at the whim of those
who may be subject to the constraints of the political arena, then perhaps
a re-examination of the constituency from which appointments are made to
Police Services Boards should be entertained." Perhaps the pithiest comment
was found in the submissions of Constable Rattray: "I invite you, Mr. Com-
missioner, to recommend that we keep the politicians out of police work
and the police out of politics."

I concur with the above comments.

288 Role of the Board

(B) THE BOARD AND THE INQUIRY

The fundamental misunderstanding on the part of the Board or some of its
members as to the proper nature of its role caused many of the problems
that led to the 1987 crisis and the calling of the Inquiry. Unfortunately, that
misunderstanding continued throughout the Inquiry and created further prob-
lems for the Force and harm to its public image.

At the first organizational hearing on June 27, 1988, counsel for the
Board made it clear that their clients were unhappy with some of the terms
of reference, and particularly the failure of the Solicitor General to include
therein, as requested by the Board, the requirement that the Commission
look behind the opinion of senior members of the Attorney General's De-
partment that there were no reasonable and probable grounds for criminal
charges against ex-Chief Gayder, as recommended by the IIT. I refused an
application by the Board counsel to request such an expansion of the terms
of reference on the grounds that my mandate, already awesome in breadth,
was to inquire into the NRPF, not the departments of the Solicitor General
and Attorney General. Nevertheless, Board counsel and Board members re-
peatedly complained that this ruling had curtailed their right to fully explore
the motives of the government officials involved in the departmental
opinion, although I have never understood the relevancy thereof in relation
to the Inquiry's goal of restoring public confidence in the NRPF.

As I have already mentioned, it was expected that the IIT briefs
would persuade the Attorney General to recommend criminal charges
against Gayder, thus justifying his earlier removal. When this did not
happen, it was thought that a public inquiry, with terms of reference
dictated by the Board, would accomplish the same end.

My impression was that the Board originally perceived the Inquiry,
since they were the ones who asked for it, as being their own to control as
they wished. When, in the very early stages of the Inquiry, preliminary in-
terviews of the Board members by Commission investigators indicated to
them that the terms of reference included their own administration, followed
by the realization of their inability to dictate the way in which the Inquiry
would be conducted, it appears that their alarm resulted in a resolution
passed at a "Special Confidential Meeting" of the Board on August 18,
1988. The resolution recited that "the Board having been informed by its
counsel Peter A. Shoniker that the Colter Inquiry counsel and investigators
have requested that counsel for this Board, Chief J.E. Shoveller and the
Niagara Regional Police Force, make available to them copies of all

Role of the Board 289

documents, statements and interviews as well as impart to them all know-
ledge of all items relevant to the Inquiry's terms of reference; having
canvassed the views of Chief J.E. Shoveller, this Board directs — Edward
J. Ratushny, Q.C., Frederick S. Fedorsen, Peter A. Shoniker and Peter M.
Barr and their agents and representatives to disclose no information, docu-
ments, statements and/or interviews to the Colter Inquiry counsel or in-
vestigators until such time as this Board is satisfied through its counsel, that
the Colter Inquiry will; a) be full and complete; b) seek and obtain the truth
and, c) establish once and for all the credibility of the Niagara Regional
Police Force." This was followed by a letter from Board counsel to Com-
mission counsel that the Board counsel had been instructed to take a
"pro-active stand" in their dealings with the Commission. Notes from the
August 18, 1988 meeting state, "Proactive is essentially a method by which
we must be resourceful in assembling a body of information and evidence
to the exclusion of the Inquiry investigators and counsel." (emphasis
mine)

The "proactive" stand proved to be an obstructive stand. The
resolution itself did not come to light until February, 1990, when Gayder's
counsel applied for an order for production of all Board Minutes and tape
recordings of all Board meetings, an application that was vigorously op-
posed by the Board. The discovery of the resolution helped to explain the
technical impediments sometimes encountered by the Commission investi-
gators and Commission counsel in their efforts to look into the Board's
administrative practices. For instance, on September 1, 1988, Shoveller's
counsel wrote to the Commission stating that the Chief would resist being
interviewed by Commission investigators, but would answer, in writing,
questions put to him in writing.

Instead of co-operating with the Commission in order to fmd out
why the Force seemed to have lost the confidence of the public, as posited
by the terms of reference, and to find ways of restoring that confidence, the
Board, through its counsel, appeared to consider it was on trial and seized
upon every possible way to deflect attention from itself by endlessly pur-
suing any event or non-event which might lead to proof of misconduct on
the part of Gayder.

An example of the obstructions which the Board placed before this
Inquiry can be found in their conduct in relation to the very order which
caused this "non co-operation" resolution to come to light. The February,
1990 order was for production of all Board minutes and tapes from the date
of the Order in Council forward, including minutes of in camera meetings,

290 Role of the Board

which would be examined by Commission counsel and Board counsel, and,
in the event of disagreement, by me, as to relevancy or privilege before
being made available to the Inquiry. The Board appealed this order to the
Divisional Court. The appeal was eventually withdrawn subject to certain
conditions, which were not resolved nor the tapes released until more than
a year later, when a further motion for their production was launched by the
original applicant. Even on this renewed application, further lengthy argu-
ments were advanced concerning the tapes being subject to solicitor and
client privilege, and therefore not subject to production, and that, in any
event, the Commission was not entitled to look into anything which had oc-
curred after March 25, 1988, the date of the Order in Council. Upon a
further order being granted for immediate production of the tapes following
examination by me as to relevancy and privilege. Board counsel then re-
quested a stay of the order to allow another appeal. This was refused in
view of the year's delay in production following the first order. Meanwhile,
one of the tapes most urgently sought was lost.

Considering that all that the Commission was asking was the oppor-
tunity to examine tape recordings of meetings of public representatives
performing their public duties, the Board's actions appeared more obstruc-
tive than constructive. A possible explanation for the Board's reluctance to
assist the Commission, and its resistance of the order to produce its min-
utes, in spite of the specific requirement in the Order in Council that all
Boards "shall assist the Commissioner to the fullest extent," and Board
counsel's frequent public protestation that the Board's only interest was "to
seek the truth," is best summed up by a perceptive observation of the Div-
isional Court in its March 31, 1992, judgement. This judgement dismissed
a joint motion by the Board and Mrs. Taylor and Sergeant VanderMeer per-
sonally to prohibit the Inquiry from making any findings of misconduct on
their part. After finding "no substance whatever to any or all of the ob-
jections" to the Commission procedures which had been advanced by the
applicants, the court went on to state: "What appears to have happened is
that during the course of the Inquiry the accusers have become the accused.
As such, their interest in reaching the day of judgement has abated." The
application and the legal arguments preceding it forced the cancellation of
my earlier ruling fixing May 15, 1991, as the date for the filing of final
submissions, and the result was that final submissions were not filed until
July 15, 1992, a delay of more than a year.

The Board created another problem for the Inquiry by its practice
of commenting in the media on matters concerning the Inquiry. The Board
appeared to be seeking to achieve its purposes by influencing public opinion

Role of the Board 291

instead of presenting its position before the Inquiry, as it should have done.
This was disrespectful to the Inquiry, and made it difficult to proceed prop-
erly when one party was presenting part of its case in a different forum —
the press. The situation was made more difficult because the press inter-
views and releases were frequently based on inaccurate information.

For example, on February 1, 1990, following evidence seen to be
critical of Mrs. Taylor (Board chairman), Mr. Mai Woodhouse (the Board
vice-chairman) held a press conference characterizing the evidence as a
"frolic" of the Commission in using the Inquiry to attack the Board chair-
man, rather than the "fundamental reasons for calling this Inquiry ... These
are allegations of impropriety, and in particular, concerns that organized
crime may have been involved ...." The release stated: "Our instruction to
counsel has always been to seek the truth, to ensure that the truth be known
notwithstanding that Board members might have to be vigorously quest-
ioned in order to get at the truth." The release went on to criticize the
Commission for examining the IIT's activities without obtaining an ex-
pansion of the terms of reference to specifically include that subject.

Later that month, on February 22, 1990, following my ruling that
the Board must deliver the audio tapes of Board meetings for examination
by Commission counsel and, in case of dispute, by me, the Board, in spite
of its repeated assertions that it wanted the truth to come out even if Board
members had to be "vigorously questioned," issued a four-page press re-
lease. In the press release, the Board announced that it was appealing the
ruling, and expressed outrage at its private meetings being looked into, at
my ruling that they had waived solicitor and client privilege in relation to
certain matters, and at the Inquiry's intention to examine any developments
that arose after the date of the Order in Council.

No notice of appeal had been served on the Commission at the time,
and when the press release was brought to my attention and I commented
on February 27 on the irregularity of giving notice by way of the media.
Board counsel stated he had not seen the press release prior to its pub-
lication. In contrast to this, Mr. Woodhouse, who signed the press release
as vice-chairman of the Board, testified on May 4, 1992, that it had been
drafted by Mr. Shoniker as Board counsel.

A similar situation arose a few months later. On September 7, 1990,
the Board sent a long letter, over the signature of Mr. Woodhouse, to Prem-
ier Peterson with a copy to then Premier-elect Rae. A copy of the letter was
released to the press on September 12, 1990, the day following the publicity

292 Role of the Board

engendered by Mr. Rowell's attack on Commission counsel. Because of the
volatile nature of its contents and the high profile of the addressees, the
letter resulted in renewed headlines. It expressed the Board's displeasure
over a number of things, including the investigation of the Board's actions,
the cost of the Inquiry for which the Board was paying four counsel and
continued with four and a half pages of charges of OPP and OPC incom-
petency in their earlier investigations of the Force, and of "curious actions
of senior staff from the Ministry of the Attorney General in (a) framing the
terms of reference, (b) rendering a legal opinion on the merits of laying
criminal charges against former Chief Gayder which is ... flawed and mis-
leading." It also complained that the Commission was spending too much
time investigating the actions of the IIT and that its counsel had objected
that this was "not mandated by the Order in Council."

There could be only one possible reason for writing the letter, and
that was to bring pressure to bear on the Commission. It was inexcusable
for the Board to attempt to influence the Commission by writing to the
Premier of the province, and by releasing the letter to the press.

To make matters even worse, the letter was replete with factual
errors. On the record, Commission counsel refuted a number of the incor-
rect statements. Mr. Shoniker, counsel for the Board, stated he had not seen
the letter until Commission counsel gave him a copy, and that "I knew
nothing about the matter being revealed to the press." Two weeks later, he
advised the Inquiry that he had been directed by Mr. Woodhouse to apolo-
gize for inaccuracies in the letter, which arose from "errors and misunder-
standings." As to its release to the press, he explained that at the time, a
reporter had asked him for a copy of it, and he had directed her to Mr.
Woodhouse. Woodhouse later testified that the letter had been drafted by
Mr. Shoniker, and produced a draft of the letter which had been faxed from
Mr. Shoniker' s firm. It is, therefore, difficult to understand the statement in
the letter that Board counsel had objected to the investigation of the IIT as
"not mandated by the Order in Council." On November 30, 1988, early in
the hearings, Mr. Shoniker specifically agreed that the investigation of the
IIT was included in the terms of reference.^ On later occasions, Mr. Shon-
iker submitted that the IIT investigation also fell within terms 2 and 3 of
the Order in Council.

It is understandable why no one wanted to accept responsibility for
press releases and letters which were later shown to be inaccurate, but the

Inquiry transcript, vol. 9 (Nov. 30. 1988):54-55.

Role of the Board 293

general attitude was not one of forthrightness or co-operation, and was a
great hindrance to the progress of the Inquiry.

On November 15, 1990, Commission counsel completed the calling
of evidence subject to evidence other counsel might wish to call. However,
when the Inquiry reconvened on November 20, 1990, on what was assumed
to be the final evidentiary session of the Inquiry pending final submissions,
no further evidence was requested and pursuant to the earlier agreement of
all counsel, several interview transcripts were filed without the necessity of
calling the interviewees. The Inquiry then adjourned pending notification to
counsel of the date for delivery of counsel's submissions. In due course,
following suggestions from various of the parties, counsel were notified that
May 15, 1991, was the date for final submissions.

Much legalistic wrangling followed, resulting in a series of motions
to me, as Commissioner, by the Board and by Sergeant VanderMeer for a
ruling that, amongst other things, the Commission could not make findings
of misconduct against Sergeant VanderMeer or any Board member. Upon
the motion being dismissed, the Board retained outside counsel to appeal
the decision to the Divisional Court on behalf of the Board and of Mrs.
Taylor and Sergeant VanderMeer personally. This was quite surprising,
since the Board had, some months earlier, appealed to me, as Commis-
sioner, for funds to enable it to continue legal representation before the
Inquiry, on the grounds that it had run out of funds. In response to that
appeal, in April 1991, the Commission had paid to the Board, out of its
already strained budget, one-quarter of a million dollars in order to allow
the Board to continue to be represented at the Inquiry hearings. The Board's
action in joining VanderMeer in motions to prevent findings of misconduct
resulted in other parties suggesting that frustration of the Inquiry had been
orchestrated by counsel for VanderMeer and counsel for the Board. Gay-
der's counsel subpoenaed two Board members to give evidence about such
arrangements, and they appeared in answer to the subpoena. However,
Board counsel instructed them not to give evidence, and rather than put
them at risk of a charge of contempt of court, Gayder's counsel withdrew
the subpoenas. The resulting publicity did not assist in the Inquiry's efforts
to restore the confidence of the public in the administration of the Force.

The application to the Divisional Court was unanimously dis-
missed by all three members of the Court on March 31, 1992. The litigation
thus held up the Inquiry for more than a year, with counsel's final
submissions eventually being delivered to June 5, 1992, instead of May 15,
1991 as originally planned. Counsels' rebuttal to these submissions as they

294 Role of the Board

affected their own clients were filed on July 15, 1992, and the Inquiry then
adjourned for preparation of this report.

The Board's judgement in bringing these motions is questionable on
another level as well. Under the Collective Agreement between the Board
and the Police Association, it is provided that where an officer's conduct is
called into question in a public inquiry, and no finding of misconduct is
made against him, he shall be indemnified for his legal costs. In a press
interview following the dismissal of the Board's appeal, the Board manager
estimated these costs at one and one-half times the legal aid rate which the
Commission was already paying out of its own budget to counsel for police
officers who had been granted funding. The point of her remarks was that,
had the court application been successful, no findings of misconduct in re-
lation to the Board's co-applicant. Sergeant VanderMeer, or any other fun-
ded officers, could have been made, and the Board could then be faced with
a claim by VanderMeer' s counsel, and possibly others, for their regular fees
over and above the legal aid rate paid to them by the Commission. In ad-
dition, had the Board been successful in its appeal, it would have emas-
culated the Inquiry so that it could make no effective findings, and probably
would have ended the Inquiry as happened in the Patti Starr Inquiry. As a
result, the very reason for calling the Inquiry, namely, to restore public
confidence in the Force, would have been frustrated, and the rumours and
allegations hanging over the NRPF would have remained.

The Board must have been aware of all this, thus raising the quest-
ion whether it was more interested in protecting its individual Board mem-
bers than it was in protecting the interest of the public.

It must be noted that, on February 28, 1991, the Board passed bylaw
N°. 124-91 providing for an indemnification of Board members for any le-
gal expense incurred as a result of any action or other proceeding, other
than one under the Municipal Conflict of Interest Act, arising out of acts or
omissions done or made in good faith in his or her capacity as Board mem-
bers. This has some significance in view of the judgement of the Divisional
Court allowing the Commission to recover its costs against Mrs. Taylor and
Sergeant VanderMeer personally, as well as against the Board itself The
Commission has not taken any steps in this regard.

Throughout the Inquiry the Board made much in its various press
releases, public statements and televised submissions before the Inquiry, that
their only intention was to "seek the truth" — no matter whom it hurt. Some
examples of such statements have been set out above. These statements

Role of the Board 295

were designed for public consumption. Not only were they not imple-
mented, but quite the opposite occurred. What in fact happened was that
from the beginning the Board decided that it would not co-operate with the
Inquiry and that it would keep information from the Inquiry. As the hear-
ings progressed the Board became increasingly active in seeking to deflect
the truth, whenever it appeared that the truth would reflect negatively on the
Board or one of its members. This was not conduct appropriate for public
representatives.

I have set out just some of the many examples of how throughout
the Inquiry the Board failed to recognize and fulfil its proper role. The
Board's prime concern should have been to assist the Inquiry in its exam-
ination of every relevant aspect of the Force, so that any problems could be
ascertained and possible solutions could be explored. The good of the public
they represent and the Force they guide required such an examination. In-
deed, the Order in Council creating the Inquiry specifically required the
Board to co-operate in that fashion. Unfortunately, the Board's main interest
appeared to be in justifying the actions of its individual members, so that
until the change in membership in 1992 the Board's actions were an ob-
stacle rather than a help. Worse, by advancing so many of its positions in
the press, the Board continued to undermine public confidence in the Force,
thus furthering the very damage they should have been assisting the Inquiry
to correct.

I have commented at some length on these aspects, as I consider
this attitude on the part of the Board to have been one of the more sig-
nificant problems in this Force and an example of the real dangers inherent
in politicized Boards which fail to act collectively in the best interest of the
Force. I accordingly consider the implementation of my recommendations
at the end of this chapter to be important for the good of all police forces
in this province.

296 Role of the Board

RECOMMENDATIONS

It is recommended that:

1. A training course, with improved educational materials and fac-
ilities be developed for new appointees to police services boards.

2. A new appointee to a police services board be required to complete
the training course before being sworn in as a member of the
board.

3. A system be established whereby the attendance of board members
at workshops is monitored and taken into account when their re-
appointment is being considered.

4. Consideration be given to the appointment, to boards that do not
have solicitors, of a legally trained person, not to give policy
advice, but to recognize problems that may require legal advice.

5. Consideration be given to providing suitable police services board
offices in premises other than police buildings.

6. The Ministry of the Solicitor General consider eliminating any
provision that would empower a board to suspend, discharge or dis-
cipline its Chief, and provide that the board refer to the OCCPS
any situation that may require such action.

7. There be a provision that no individual member of a Board may
take any action affecting the Chief, and that only the Board may
take such action.

8. Terms of Office of appointees to police services boards be "stag-
gered" so that the board always has a majority of experienced
members.

9. Police Chiefs should, whenever possible, give adequate notice of an
intention to take early retirement. The Policing Services Division of
the Ministry of the Solicitor General should be immediately notified,
and should assist the Board in ensuring that a new Chief is ready
to take office upon the retirement of the retiring Chief.

Role of the Board 297

10. The Police Services Act be amended, or a regulation be passed, to
make it clear that the OCCPS has jurisdiction to counsel Police
Services Boards, and to summarily remove or suspend members
found to be in serious breach of duty, subject to a right of appeal
to the Solicitor General

11. That the method of appointment of members of Police Services
Boards be examined to ensure that the appointments be, and be
seen to be, unconnected to any political affiliation.

8 REPORT ON THE NEXT CHIEF

Police forces, because of their paramilitary traditions and rank structure,
tend to be influenced by the philosophy and attitudes of their senior officers
to a greater degree than other organizations. In that regard, the most sig-
nificant influence is likely to be that of the Chief of Police, and the
selection of a Chief is a matter that can have a profound effect on a force.
It had been my intention to make recommendations concerning that sel-
ection process in my report on all of the matters referred to me by the
Order in Council creating this Inquiry, but such an all-encompassing report
will not be completed for some time. However, the tendering by Chief
Shoveller of his resignation effective next February, and the fact that the
search for a new Chief is about to commence, persuades me that I should
at this time issue my report concerning the selection of the next Chief of
Police. The announcement that Deputy Chief Kelly will also be retiring at
about the same time is a further reason for doing so.

In order to explain as briefly as possible the special importance to
the Niagara Regional Police Force of the selection of the next Chief, it is
necessary to review some of the history of the Force.

On January 1, 1971, under the provisions of The Regional Munic-
ipality of Niagara Act, 1968-69, the 11 existing municipal police forces in
the region were amalgamated to form the Niagara Regional Police Force.
These municipal forces, varying in size from 5 to 134 members, each had
their own parochial loyalties and modes of operation. One of the provisions
of the legislation was that the members of a local force could not be re-
quired to move more than five miles from their former municipality. This
restriction contributed to a continuation of members identifying with their
original force, rather than with the new Force as a whole.

In preparing for amalgamation, a committee was appointed to plan
for the new force. The three members were senior officers drawn from the
three largest pre-amalgamation forces: Inspector James Gayder from St.
Catharines and Deputy Chiefs Donald Harris and Martin Walsh from Nia-
gara Falls and Welland, respectively. Upon amalgamation, Albert Shennan,
former Chief of the St. Catharines Force, became Chief of the Regional
Force, with Harris and Gayder as Deputy Chiefs. When Shennan retired,
Harris, formerly of Niagara Falls, became Chief, and upon Harris' re-
tirement, Gayder, formerly of St. Catharines, succeeded him. It is unclear

This report was issued on August 24, 1992 following the announcement of Chief
Shoveller's pending retirement.

300 Report on the next Chief

whether appHcations were solicited or other candidates interviewed, but it
seems to have been understood, or at least the impression was given, that
the position would be alternated between candidates from St. Catharines and
Niagara Falls. Gayder, on being appointed Chief, appeared to continue the
"tradition" by selecting a deputy from each of St. Catharines and Niagara
Falls. Evidence at the Inquiry was to the effect that many Force members
had a perception that this was an "old boy system" which affected the func-
tioning of the Force including its promotion policy, and that this perception
resulted in "infighting" between the factions.

That there were factional problems was also recognized outside the
Force. CBC investigating journalist, Gerry McAuliffe, who had taken a con-
siderable interest in the administration of the Force and had broadcast a
series of critical reports about it, testified that it appeared to him that the
"camps" promoted their own people and that he knew of "inappropriate
conduct" in the infighting between the camps, although he refused to give
details since that might reveal his sources. An investigator for the Ontario
Police Commission, whose investigation of certain complaints against the
Force will be described elsewhere in my report, testified that he received
complaints from Force members that the Force was not unified and that
there were "squabblings" and rivalries that "weren't healthy." He char-
acterized this as "a most important concern." Mrs. Denise Taylor, when first
appointed to the Board of Commissioners of Police, met with a local crim-
inal lawyer to learn about Force problems, and he not only told her about
the two "camps", but gave her the names of officers involved. At the In-
quiry, in explaining one of Mrs. Taylor's notes of their conversation, he
testified that it was a reference to the factions, and that "If you were the
Niagara Falls faction, you wouldn't trust the St. Catharines faction." The
President of the local John Howard Society also spoke of "factions" in the
Niagara Falls versus St. Catharines situation and their divisiveness. The
Administrator of the Niagara Region Police Association testified that the
reason the Association had recommended that the 1987 Internal Investi-
gation should be given to an outside force was that it was perceived that the
Niagara Falls faction was out to investigate the St. Catharines faction. In his
view, the events of 1987 involving Gayder' s resignation and the appoint-
ment of John Shoveller of Niagara Falls as Chief were a "coup" with the
Niagara Falls faction seizing power from the St. Catharines faction.

One would think that over 20 years of attrition since the 1971 amal-
gamation would have completely eroded the "two-camp" perception, but the
evidence indicates otherwise. Although Chief Shoveller testified that he did
not believe that the idea of factionalism had any validity, he agreed that

Report on the next Chief 301

pre-amalgamation loyalties were carried over into the new Force. He esti-
mated that 30-35% of the present officer complement were members of the
pre-amalgamation municipal forces, and that the perception of two or more
factions has survived to the present time, perhaps because of the indoc-
trination of new members by older members. As already mentioned, the
events of 1987, such as the laying of charges against Chief Gayder (seen
as the head of one of the camps) and his subsequent resignation, followed
by an intensive internal investigation of allegations against him, seemed to
confirm these suspicions in the minds of some, and the evidence at this In-
quiry has done nothing to allay them.

Submissions were made to me advocating the appointment of an
"outside" Chief to succeed Chief Shoveller, as a means of promoting unity
and laying to rest the "two-camp" perception. The same reasoning applies,
although to a lesser extent, to the selection of a Deputy Chief. I recognize
the drawbacks in implementing such a suggestion, particularly the potent-
ially negative effect on the morale of those within the Force who might
aspire to become Chief or Deputy Chief, or move up as a result of a senior
officer's promotion.

Ordinarily, I would subscribe to the view that the selection should
be of the best person for the job regardless of origin, but the situation in
Niagara is exceptional. Also, the simultaneous opening of the position of
Deputy Chief provides an opportunity for a new Chief from outside the
Force to take part in the selection of his new deputy.

I trust that, if it is made clear that my recommendations are a
one-time departure from the norm, the Force members will understand.

302 Report on the next Chief

RECOMMENDATIONS

It is recommended that:

7. On a one-time basis, the new Chief be selected from qualified police

officers from outside the Niagara Regional Police Force.

2. If a new Deputy Chief is to be appointed, that appointment be de-
layed to allow the new Chief to have input into the selection pro-
cess.

3. On a one-time basis, consideration be given to selecting such Dep-
uty Chief from qualified police officers from outside the Niagara
Regional Police Force.

August 24, 1992.

PART IV

THE FORCE AND ITS IMAGE

Public Confidence

Media Relations

Morale

Public Complaints

Labour Relations

Recycled Rumours

1 PUBLIC CONFIDENCE

The preamble of the Inquiry's terms of reference in part states "... the
expression of such concerns may have resulted in a loss of public con-
fidence in the ability of the Force to discharge its law enforcement re-
sponsibilities, and ... the Government of Ontario is of the view that there is
need for the public ... to have confidence in the operation and adminis-
tration of the Force ...."

Accordingly, the Commission considered it was necessary to as-
certain, in an objective and scientific way, not only a measure of the general
public's confidence in the police in the Niagara Region but some indication
of its priorities with respect to police service. To this end Environics Re-
search Group Limited of Toronto, which has been regularly monitoring pub-
lic attitudes towards public institutions in Canada for some years, was re-
tained in July, 1989 to survey the opinions of Niagara residents. Working
with Inquiry staff, a questionnaire was developed and administered by tele-
phone between July 17 and 31, 1989 to more than 800 randomly-selected
adult residents of the Niagara Region. For comparative purposes, some
questions were also asked of a randomly-selected sample of over 1 ,000 On-
tario residents and data from past Environics surveys were considered,
where relevant.

At the outset of the interview, to place the pohcing issue in context,
residents were asked what, in their opinion, was the single most important
local problem facing the Niagara Region. "Police corruption and scandals"
was identified by only one per cent of the respondents. Thirty-eight per cent
identified the environment as the most important problem and eight per cent
mentioned unemployment. Comparing responses in St. Catharines, Niagara
Falls, Welland and the remaining rural areas, taken as a whole, there was
no difference in the perceived importance of the police corruption issue.

The overall ranking of problems by Niagara residents was not unlike
that generally found in Environics' province-wide FOCUS ONTARIO sur-
veys. As of the time of the Niagara survey, the environment was the num-
ber one issue in the public mind and scandals were the major issue for only
four per cent of Ontario residents, even though the Patti Starr affair was
then current and receiving much publicity.

In the Niagara Region, as in the province as a whole, nurses (70%)
were more likely to instill "a great deal of confidence" than were doctors
(53%) and the local police (50%), although doctors and police inspired
more confidence than teachers (38%) and lawyers (27%). Confidence in

306 Public Confidence

local police was somewhat lower in the Niagara Region (50%) than in On-
tario (64%) as a whole, and, conversely, Niagara residents showed more
confidence in lawyers (27%) than did residents in Ontario (21%) generally.

In Niagara, confidence in the police increased with the age of the
respondent. Confidence was lowest in the youngest respondents. Across
areas in the region, confidence was somewhat lower in Welland than else-
where. In Welland, only 45 per cent said they had a great deal of confi-
dence in the police.

Residents were also asked to indicate their confidence in the three
groups involved in policing the Niagara Region: police officers on the
street, police management, and the Board of Commissioners of Police. Con-
fidence in police officers on the street (54%) was substantially greater than
in police management (17%) or the Board of Commissioners (14%). The
patterns of confidence in police management and the Board of Commis-
sioners were not greatly different, although, perhaps through lack of fam-
iliarity, a larger number of people were unable to express an opinion about
the Board.

Respondents were asked whether their opinion of a number of local
institutions, including local police, had gone up, gone down, or stayed the
same over the past year. In the case of local police, as many people said
their opinion had gone up (17%) as said it had gone down (17%). The
greatest number (62%) said their opinion remained the same. This repre-
sents a considerably less favourable view than with the fire department,
where 29 per cent said their opinion went up and almost no one said it went
down. The police fared better than local government, however: only nine
per cent said their opinion of local government improved over the past year
and 41 per cent said it had gone down.

Respondents were asked to indicate which one of a number of
sources was most important to them in forming their opinions about the
NRPF. Forty per cent said their own personal experience was most im-
portant. Newspaper reports were most important for 28 per cent; another 18
per cent relied on radio and TV reports. Ten per cent said that what they
heard from friends and acquaintances was most important to them. The pri-
mary source of information on which residents based their opinions did not
affect the level of confidence shown in the police.

Seventy-six per cent of Niagara Region residents were aware of the
Commission of Inquiry into the NRPF. Awareness was higher among older

' Public Confidence 307

residents than among younger residents (perhaps because the older ones
were more likely to be at home watching the Inquiry on cable television).
It was slightly higher in St. Catharines and the rural areas of the region than
it was in Welland and Niagara Falls.

Those who were aware of the Inquiry were asked what, if any, was
the most inappropriate activity on the part of the NRPF. Seven per cent
volunteered that they thought no wrong had been done and 46 per cent were
unable to identify any specific activity. The others mentioned a variety of
activities. Fourteen per cent cited the mishandling of seized property and
gun incidents, eight per cent secrecy and cover-up, and seven per cent
general mismanagement. Another seven per cent referred to poor perform-
ance on the part of officers on the street. Five per cent indicated poor hiring
practices. Seven per cent indicated a number of other activities. When asked
what they would do if they had a complaint against the police, 50.2 per cent
of those who answered the question said they would go directly to the
police, and a large majority of these were confident that this would lead to
a fair resolution of the matter.

Respondents were asked to indicate whether they thought the Nia-
gara Regional Police were doing a good job, an average job, or a poor job
in five key areas. A majority thought the police were doing a good job in
being approachable and easy to talk to (60%), and in enforcing the laws
(53%). Forty-six per cent viewed the police as doing a good job of re-
sponding to calls promptly. Forty-two per cent said the NRPF did a good
job of supplying crime prevention information and 31 per cent said they did
a good job of providing services to a range of ethnic and racial groups
across the community.

While no similar data were available for communities of the same
size as Niagara, the same question was asked of Metro Toronto residents
in December 1988 with regard to their police force. The results of that
METROPOLL survey show a similar pattern and range, although Metro
Police scored nine per cent higher in enforcing the laws, and six per cent
higher in the areas of providing crime prevention information and providing
services to ethnic and racial groups.

Participants were asked whether, given what they knew about pol-
icing in the Niagara Region, they thought there should be more police
services, even if that might mean an increase in taxes. Residents were split
between maintaining the current level of policing (53%) and acquiring more

308 Public Confidence

police services (42%). Only two per cent suggested fewer police services
were needed. Four per cent expressed no opinion.

An Environics' provincial survey named FOCUS ONTARIO posed
a similar question with regard to support for more spending on various ser-
vices. Their July 1989 edition reported that the highest levels of support
were for more spending on environmental protection. Intermediate levels of
support existed for health care and roads/highways. Support for more spend-
ing on the court system was the lowest of those measured.

In much the same time frame, residents of the Greater Toronto Area
were asked about their support for more spending on police services.
Thirty-seven per cent said more should be spent; 56 per cent said there
should be about the same level of spending.

It must be recognized that there are inherent frictions between the
public and the police. Members of the public rely on the police to keep
society safe by preventing crimes and arresting criminals, but many people
resent what they perceive as too much attention being given to parking and
minor traffic offenses. Dislike for certain laws may be transposed into
dislike of the police. The result may be that the public has a love-hate
relationship with the police. No force can expect to be always popular, but
in order to function effectively it must have the confidence of the public it
serves.

While realizing that the Commission's survey could produce only
a "snapshot" of public opinion in the Niagara Region, I am encouraged by
the generally positive results. I believe it is important for the views of the
residents of the area to be heard as opposed to only those who have been
closely involved in the inquiry process. It would certainly appear that the
"average person" has a great deal more confidence in the Force than has
been implied by the rumours and allegations of impropriety and wrongdoing
raised in the media and before this Commission. Mrs. Joan McKinney, an
interested lay person, who had requested permission to attend the workshops
and was a valuable contributor to our discussions, stated that since the In-
quiry started, "the people in her area felt the scandals had been cleared up
and were very satisfied." It may well be that the Inquiry, by revealing
through the media that most of these allegations were unsubstantiated, has
increased this confidence, but it seems also that the primary source of this
confidence is the efficient manner in which the officers carry out their basic
policing duties and they are to be commended for their efforts.

Public Confidence 309

Furthermore, although over three-quarters of the respondents knew
about the Inquiry and many could cite issues being addressed, very few re-
garded it as a central concern for their region. The survey's findings are in
contrast to the extremely negative media criticism there has been of the
Force and its members, both prior to and during the course of this Inquiry.

I conclude that public confidence in the NRPF is not any better or
worse than that reposed in other police forces. It would seem that the
"crisis" which was perceived by some people to exist at the time of the call
for a public inquiry, existed much more in the minds of those people than
it did in the minds of the public.

2 MEDIA RELATIONS

One of the terms of reference asked for a report on "the policies and prac-
tices of the Force relating to release of information to the news media, and
the state of existing relations between the Force and the news media."

I shall deal first with the latter part of the question, that is, the
Force's relationship with the media.

During the Inquiry, it became evident that a number of people asso-
ciated with the NRPF were prone to impart to the media their concerns
about rumours of corruption in the Force, and that the media were quite
willing to publish these rumours. Unfortunately, news about police cor-
ruption sells well; news that the police are doing a good job is not a
circulation booster.

As can be seen from other sections of this report, the Board collect-
ively, and/or Mrs. Taylor individually, frequently sought support from the
media for some controversial action by way of media interviews or media
releases, which sometimes contained slanted or even inaccurate information.
This gave the wrong signal to Force members that this was the way to get
action. For instance, when Newburgh approached Shoveller about his con-
cerns that his telephone was being tapped, he proposed going to the media.
When VanderMeer was concerned about C.'s reported threats on his life,
he went to Moon of the Globe and Mail, which resulted in adverse head-
lines. When VanderMeer was upset about the Attorney General's recom-
mendation not to lay criminal charges against Gayder, he sought support for
a public inquiry by lealcing his critique on the Wolski report to Moon.

The media has had a major role in the recycling of rumours. They
cannot be blamed for publishing stories of purported misconduct within the
Force that are handed to them by reputable Force sources. However, they
might be expected to examine such stories more carefully than they have
in the past, and to present them in a more balanced way. Instead, many
Force members have felt that the media were unjustifiably "taking shots"
at the Force, and the Standard was seen as being consistently anti-police.

During the Inquiry hearings, because of the massive volume of evi-
dence the Inquiry produced each day, and the space or time limitations of
the media, only the most sensational allegations were reported, and this
caused many Force members to resent the media.

3]2 Media Relations

I conclude that there has been an uneasy relationship between the
Force and the media. Both bodies have important roles to play in service
to the public. Most members of the public look to the media as the major
source of information about the police, and it is essential that a more
positive relationship be built between these two important community
bodies. I shall be recommending that, to this end, senior officers of the
Force meet with members of the various media, and with senior members
of the Standard in particular.

I now turn to the question in the terms of reference concerning the
policies and practices of the Force relating to the release of information to
the news media.

The importance of a return to the philosophy of community-based
policing was mentioned earlier in this report. Implicit in this philosophy is
the recognition that the police cannot function effectively without the in-
volvement of the public they serve, and must initiate relationships with
community organizations and encourage active co-operation of ordinary cit-
izens. In doing so, police authorities must recognize the growth and demand
for accountability of police forces. A police force's relationship with the
public has never been more important. It is of paramount importance that
the Force cultivate good relations with the media to improve communication
with the public.

The present NRPF media policies are set out in two documents:
Board bylaw 101-89 entitled "Regulations for the Government and Oper-
ation of the Niagara Regional Police Force" and the Force's November,
1984, Training Bulletin N°. 78 - "Media Relations."

The section of the Board bylaw relating to information is quite brief
and lays down very broad policies from which Force management form-
ulates procedures for disseminating information. It is a good example of the
military model of policing. Members of the Force are required to regard all
official business as confidential and to refrain from divulging it by any
means except under the due process of law, as directed by the Chief of
Police or as authorized by Regulations or General Orders of the Force. All
lectures, speeches and interviews must be authorized by the Chief of Police.
The Chief and members designated by him may release items to the media
as prescribed in Regulations and General Orders. All information must be
factual and truthful. Information is not to be withheld unless it:

Media Relations 313

is likely to prejudice the ends of justice;

may be of assistance to criminals or suspected persons;

may cause unnecessary pain or distress to individuals;

is of a confidential nature;

would place any person in actual physical danger;

would disclose the identity of any person giving confidential
information;

is prohibited by law from publication;

It also notes that the identity of persons giving information to the
Force may only be disclosed with their approval or by court order.

The 1984 Media Relations Training Bulletin goes into greater detail
in outlining the purpose of its media policy and conditions under which in-
formation may be released. It declares that all information on any incident
shall be made available except where the following conditions apply:

• requests for privacy from the victim or the victim's parent or
guardian;

• disclosure which might place persons in actual physical danger or
cause them unnecessary pain or distress;

• the identity of persons falling under the Young Offenders Act;

• copies of police photos or diagrams or statements made by a
suspect;

• disclosure which would jeopardize investigations, the apprehension
of suspects or the prosecution of a case;

• disclosure which could breach the confidentiality of police
operations;

• results of any investigation procedures, examinations or tests
involving a suspect;

314 Media Relations

• the refusal of any person to submit to any test, except in the case
of a test for alcohol impairment;

• opinions or statements as to the character, reputation, guilt or
innocence, plea, disposition or points of argument to be presented
in court;

• details of a crime which would be known only to the investigator
and the offender;

• the identity of the deceased or injured until the next of kin have
been notified;

The Bulletin goes on to state that, in using any of the above ex-
ceptions, the officer must inform the media representatives when and why
information is being withheld. Taking of photographs of suspects may not
be prevented (except in the courtroom and its environs) and other photo-
graphs in a public place cannot be prohibited unless taking them interferes
with a Force investigation. Persons under arrest may not be posed for media
photographs.

Provision is made for issuance of Media Identification Cards, and
procedures for major incidents concerning media access to public and pri-
vate property are outlined. Reasons for exclusion are mentioned, but officers
are reminded that the presence of news media may be helpful in developing
leads, etcetera.

A section entitled "Scope of Co-operation" stresses that Force mem-
bers must co-operate equally with all media representatives but that
co-operation may have its limits. Persons obstructing the Force in per-
formance of its legal duties, particularly its duty to protect life or a crime
scene, may be removed from the scene by all legal means, with arrest as a
last resort. Media persons who persist in unreasonable demands are to be
reported to the Media Relations Officer, who would report the matter to the
offender's supervisor.

The Bulletin concludes with an appeal to good sense and
level-headedness. It points out that the media should not be viewed as ad-
versaries, and that by following the guidelines and using common sense the
officer dealing with the media "will have done a great deal toward im-
proving our image with the media and consequently with the public we
serve."

Media Relations 315

Officers authorized to release information are designated in a 1984
Routine Order. These include all senior officers (inspectors and above), the
designated Media Relations Officer (who is the Chiefs Executive Officer)
and such sworn officers as are appointed by Divisional superintendents.
Each superintendent has issued Orders designating appropriate personnel in
each Division and Sub-Division. A further Routine Order of 1991 limited
the release of personal information given to the media to conform with the
provisions of the Municipal Freedom of Information and Protection of Per-
sonal Privacy Act, 1989. By memorandum, dated January 16, 1992, Deputy
Chief Kelly underscored the importance of compliance with Force policy
on media releases and reminded members that comments to the media must
be restricted to the contents of authorized media releases.

It is within this general policy framework that the daily contact with
the media is conducted. It starts with the forwarding of reports from the Di-
visions and Sub-Divisions to Headquarters in St. Catharines through their
computer-based system, ORACLE. A daily bulletin is produced from this
information, and is made available to senior officers and to the Criminal
Investigation Branch and Uniform officers in the Divisions and
Sub-Divisions. Routinely, it is mainly the CIB and the Uniform officers
who deal with the media. The Bulletins themselves may contain information
which should not be released, so they are not distributed to the media or the
public.

At various times, as dictated by deadlines of the media agencies in-
volved, telephone calls will start coming in to the CIB and Uniform staff
sergeants, asking for newsworthy events that have happened overnight. The
staff sergeant reads from the daily bulletin the brief summaries of incidents
he thinks may be of interest. The media agency may use the story, as re-
lated by the staff sergeant, or may send someone to headquarters or to the
appropriate Division or Sub-Division for interviews and further details. The
newspapers are most likely to send out a reporter because of their less fre-
quent deadlines. The radio stations are inclined to use regular calls during
the day asking for updates of reports of new incidents. The television
stations have their own special needs because of picture requirements. Each
of the eight media outlets in the region may call each of the six Divisions
and Sub-Divisions each morning, and at other times during the day. Mem-
bers of the Force spend a great deal of time talking to the media, which fact
alone may justify the recommendation I will be making for a full-time
media relations officer.

316 Media Relations

Complications can arise if the staff sergeant on duty (who, after all,
is a police officer first and a media representative second), is called away
on his regular duties. Messages may be left by the media, return calls are
not always made by the deadline time, or at all. Friction may develop with
the media, with the results unfavourable to the Force.

The routine goes on throughout the day, with occasional checks by
the media with the Divisions and Sub-Divisions. If the Force has something
specific it wishes to get out to the media, it will issue a media release or
call a media conference. In January, 1991, the Force began transmitting
these releases to all area media outlets with facsimile equipment. Evenings
and weekends require special consideration when Divisional commanders
and headquarters inspectors may not be on duty. In that case the duty
officer attempts to cope, but if demands are great, it can be a difficult time
for all concerned.

At regular meetings of the Board, the Chief is made available for
questioning by members of the media attending the meeting.

It appears that the NRPF media policies cover most matters included
in the procedures of neighbouring forces, except in minor details. Its written
policy does not mention a channel for media representatives to complain to
the Media Relations Officer, but such a channel does exist in practice. No
formal distinction is made between pre-arrest and post-arrest news releases,
nor is there a specific form for release of information as is the case with
some other forces.

Just as important as the actual media policy and practice is the way
it is perceived by members of the Force. The Commission retained Profes-
sor William Hull of the Department of Politics, Brock University, to pro-
vide the Commission, and the November 1989 Commission workshops,
with a report on the Force and its relations with the media. Professor Hull's
research included interviews with some 40 key people in the Force and in
the media in order to gain their impressions of Force-media relations.

On the question of whether mutual trust existed between the parties,
both groups were almost equally divided on the affirmative and negative
sides. On the question of whether the Force policies and practices worked
successfully, Force members were evenly divided, but over two-thirds of the
media members thought they were better in theory than they were in prac-
tice. Force members committed to the community-based philosophy of pol-
icing viewed the media more positively, and tended to regard them as some-

Media Relations 317

thing more than a necessary evil. The more experienced media personnel
were less likely to believe that the police deliberately withheld in-
formation, but many of the media representatives expressed concern about
the consistency of the information being released, especially at the Di-
visional and Sub-Divisional levels. Press representatives from outside St.
Catharines had a perception of favouritism towards the press of St. Cath-
arines, the largest community, and the electronic media perceived a bias in
favour of newspapers over radio and television.

Professor Hull also attempted to analyze what press coverage of the
Force, by the region's three daily newspapers, the Standard of St. Cath-
arines, the Niagara Falls Review and the Welland Evening Tribune, has
been like. He analyzed three two-month periods which might be consid-
ered normal, and several controversial events, namely the 1974 Landmark
Motel raid, the police video surveillance of the washrooms at the Seaway
Mall in 1983 and at the Fairview Mall in 1985, Chief Harris's controversial
car purchase in 1985, newspaper articles about hiring of relatives in the
Review in 1985 and in the Standard in 1986, and Chief Gayder's resig-
nation in 1987.

During the "normal" periods, the great majority of items in all three
newspapers were routine factual reports of incidents such as break and en-
ters, robberies and motor vehicle accidents. Where these items contained
comments about the Force, generally speaking the Review and the Tribune
were either favourable or neutral and, the Standard was either unfavourable
or neutral.

The analysis of coverage of the controversial events produced a dif-
ferent result. Items in the dailies were more prominent and included ed-
itorials and letters to the editor. The coverage was mostly unfavourable or
mixed in all three dailies: more than half in the Review, nearly two-thirds
in the Standard and over three-quarters in the Tribune.

In summary, the media policies of the NRPF are generally not much
different from other comparable forces. They are an attempt to balance the
media's legitimate demands for information with the Force's legitimate in-
terest in controlling the release of delicate information. There appears to be
some confusion among both members of the Force and of the media about
how the policies are to be applied on a day-to-day basis. This, combined
with a mutual lack of understanding of each other's role, has caused an
undercurrent of mistrust and suspicion. This is unfortunate, for there is

318 Media Relations

much to be gained by both parties from a positive police-media relation-
ship.

The Force must accept that increased openness in all public organ-
izations is an irreversible trend, and is a reasonable expectation of those
organizations. Individual officers must recognize that the great majority of
reports of their activities are factual, and must avoid judging the media on
the basis of the relatively few articles that they perceive as unfair. The
police-media relationship is a two-way street — the media expect police
co-operation in assisting them to file good crime stories in time for their
publication deadline — the police expect the media to give publicity not only
to sensational crime news, but also to stories of the many non-sensational
aspects of police work related to the Force's day-to-day service to the com-
munity. Part of the problem of the perceived loss of public confidence in
the NRPF may well have been due to deficient Force-media relations.

Ideally, the media and the police should see one another as partners,
not adversaries. However, it must be recognized that the media and the
police will probably always have an uneasy relationship, since their interests
are often at odds. The media are, after all, in the business of selling news
to the public, not just publishing only the news that the police department
wishes to disclose. The Force, on the other hand, wishes to keep some con-
trol over police information that can be released without jeopardizing its
investigations.

The time has come for the police, both as an organization and as in-
dividuals, to adopt a w'^-'^ professional approach towards media relations
and regard it as an uc gral part of their expressed commitment to
community-based policing.

Crucial to this goal would be the appointment of a full-time "Media
Relations Officer." The importance of this was graphically illustrated by the
print media's acerbic criticism of the Force's handling of the release (or
withholding) of information in the Kristen French murder investigation,
largely arising out of the Force's decision to co-operate with a local tele-
vision station in the reenactment of the French kidnapping, in the ex-
pectation that this might result in more information from members of the
public. It did result in something like 20,000 telephone and other calls
which provided new leads, but also provoked a storm of indignant com-
plaints in the press that the Force had withheld important information to
which the public were entitled during the three months following the kid-
napping, and then had released it only to the local television medium. Much

Media Relations 319

of the "bad press" could probably have been avoided by a Media Relations
Officer who was not burdened with the pressures of the investigation and
who understood media attitudes and the inherent rivalry between competing
media forms. If there are good reasons for withholding police information,
or even for giving preferential treatment to one media form, a timely and
frank explanation to the media might avoid, or at least blunt, their criticism.

The more recent adverse media coverage surrounding the NRPF's
delay in laying murder charges respecting the French matter against a
suspect arrested by the Metropolitan Toronto Police emphasizes the need for
a media relations officer who understands media psychology.

A typical job description of the position (adapted from the
Hamilton-Wentworth Police Administrative Directive N°. 9/87) might
include:

• regular media conferences to disseminate police news;

• coordination of follow-up requests from media personnel;

• arranging media conferences with other Force personnel;

• responsibility for written media releases on Force policy;

• to generate stories of interest from within the Force, or matters
affecting the Force;

• responsibility for police/media meetings (perhaps two or three times
a year, to include not only senior media personnel but, at least
sometimes, working reporters), to air grievances;

• availability for assignment by the Chief of Police or his designate;

• at the scene of a disaster or other major event, to be responsible for
the dissemination of information at the scene and its subsequent
release to the general media;

• release to the media information of developments in a police in-
vestigation, or an explanation as to why information must be with-
held.

320 Media Relations

This job description is given only as an indication of the type of
services such an officer might perform. Because of the large area and mul-
tiple media centres covered by the NRPF, the Force administration would
develop its own job description. The Media Relations Officer might be a
civilian familiar with police work or a police person with a full under-
standing of how the media operate, but it is essential that the successful
candidate be of such a personality and experience and understanding of the
police and media that he or she could gain the confidence of both.

It is not within my mandate to examine the media's attitude towards
the Force, but I trust that the media will respond favourably to any in-
itiatives taken by the Force as a result of this report.

The Force and media are involved in a mutually interdependent re-
lationship, and both are sincerely committed to the service of the public. I
am convinced that with goodwill and a genuine renewed commitment to
co-operation, past misunderstandings can be forgotten and the positive as-
pects of the existing relationship be enhanced and expanded not only for the
benefit of themselves but the people of the region.

Media Relations 321

RECOMMENDATIONS

It is recommended that:

1. The Force in conjunction with the Regional Municipality of Niagara
Police Services Board, make a clear declaration of its commitment
to a philosophy of openness and co-operation with the media and
make the necessary resources available to the media relations
function as an indication of this commitment.

2. As soon as possible, senior officers of the Force should meet with
senior personnel of the Standard to build a more positive mutual re-
lationship.

3. At regular intervals, senior officers of the Force should meet with
senior personnel and working reporters of all media, to air griev-
ances and to promote mutual understanding.

4. A News Release Form and Newsworthy Item Bulletin should be de-
veloped with input from the media as to format, timing and method
of distribution.

5. A full-time media relations officer be appointed by the Force, re-
porting to the Chief of Police via the executive officer, to coordinate
all aspects of the Force 's media relations policy.

6. All police officers should be authorized to answer media inquiries
when they are in charge of minor incidents such as traffic acci-
dents.

7. A problem-solving mechanism be established, whereby difficulties
which arise out of interactions between Force members and media
representatives may be addressed expeditiously.

8. The Force implement an effective means of disseminating timely and
accurate information to the media such as facsimile transmission
and recorded or broadcast messages, which ensures that all media
representatives in the region have, in the first instance at least,
equal access to information being released.

9. The Media Relations Officer establish and maintain an ongoing dia-
logue with all members of the media involved in police matters.

322 Media Relations

including the hosting of informal gatherings, where members of
both professions can become better acquainted with each other.

10. The Force continue to take advantage of training courses in media
relations available at the Canadian and Ontario Police Colleges for
selected senior staff, and use graduates of those courses to develop
local courses for NRPF members having regular contact with the
media. In addition, a training session on media relations, including
written directives, and, if possible, a video presentation, should be
provided to all members of the Force. Consideration should be
given to seconding an appropriate member to the media relations
department of another police unit for a brief period.

3 MORALE

Item N°. 9 of the Commission's terms of reference inquired about the
morale of members of the Force. For a variety of reasons, it proved to be,
in many respects, the most troublesome to address satisfactorily. Firstly,
collection of morale data is difficult. Morale, like beauty, tends to be very
much in the eye of the beholder. Secondly, the Commission had no oppor-
tunity to attempt to measure and assess the morale of the Force and the
factors influencing it as they were prior to the Inquiry itself becoming an
influence on morale. The announcement that an Inquiry was being called
because of a perceived lack of public confidence in the Force, plus rumours
and allegations of misjudgement and wrongdoing made public during the
Inquiry hearings through cable television and the other media, did nothing
to enhance the morale of Force members. Thirdly, even if an accurate read-
ing could be obtained regarding police morale in Niagara, data from other
forces in the province was not available for comparison.

Notwithstanding the difficulties, on two separate occasions, in 1988
and again 1990, the Commission endeavoured to evaluate the level of Force
morale, with mixed results. During the latter half of 1988, Commission staff
conducted a survey, by mail, of all current and former members of the
Force, but only 145 (13.14%) out of 1,081 potential respondents returned
the questionnaires. It was recognized that this small sample did not present
a basis on which to draw conclusions or formulate recommendations. A fur-
ther study was conducted by Dr. J.H. McGinnis and Dr. L.M. Coutts of the
Canadian Police College, Ottawa, in the summer of 1990. In the second
study, over a two-day period, 181 on-duty Force members (133 officers and
48 civilians), selected at random, voluntarily completed a tailor-made ques-
tionnaire and participated in discussions with the consultants in groups of
from three to 10. However, due to time and financial constraints, both
studies were limited in scope and duration, so that too much significance
should not be attached to the results. The work of the consultants was ex-
cellent, and although I consider that, out of an abundance of caution, I
should not rely unduly on the details of the findings, percentages, etcetera,
I am satisfied that the general thrust of the findings is accurate and con-
sistent with other information available to the Commission from other
sources, including witness testimony.

To begin with, a great deal of what the Commission learned about
the morale of the NRPF is quite positive. The Niagara officers are, gen-
erally speaking, satisfied with their pay, with most working conditions, with
their co-workers, and with supervision, as well as with the basic nature of
their work. Civilian members also tend to be satisfied with their immediate

324 Morale

supervision and co-workers, with most working conditions, with the basic
nature of their work, as well as with promotions. Both police and civilian
groups were in the middle-range on issues dealing with training and career
development, as well as some working conditions. On the negative side,
both groups, particularly police officers, were dissatisfied with senior
management of the Force. Police officers were dissatisfied with the fairness
of promotions, while civilians were somewhat dissatisfied with their pay.

It must be recognized that, although members of the Force are
generally satisfied with the fundamentals of their work, morale is always a
concern. However, in the absence of data from long-term monitoring of the
Niagara situation, it is possible only to make an informed estimate as to the
extent of the problem. According to the consultants (and their view is
consistent with the evidence and other information available to me),
although the on-going Inquiry has inevitably had a demoralizing effect on
the Force, its general morale probably does not differ greatly from other
police forces. Nevertheless, morale is a problem and remedial steps must be
taken.

The single most important source of information about the morale
of the Force comes from its members. Their opinions as to the causes of
low morale must be examined before any attempt can be made to design
remedial measures. The McGinnis/Coutts study provided the best data
available about what the members perceive as the most significant causes
of dissatisfaction.

Members were asked to cite, in order of priority, the three issues
they considered the most important causes of dissatisfaction. Approximately
one-half of the police respondents specified Force leadership as one of the
leading causes of their dissatisfaction. About 40 per cent listed promotion,
and just over 25 per cent cited budget-related concerns and lack of respect-
ful treatment by superiors. For police officers, four other issues in order of
importance were: Force unity. Police Commission (now Police Services
Board), training and development, and work environment. Almost half of
the civilian respondents mentioned leadership as one of their top three con-
cerns. However, for them, the second most frequently cited factor was work
environment, which included concerns regarding leave opportunities, shifts
and crowded work spaces. Budget-related issues and respect were each cited
by 25 per cent of the civilian respondents. In contrast to their police
counterparts, less than 13 per cent of civilians cited promotion as a major
source of dissatisfaction. This was followed, in order of citation frequency,
by training and development. Force unity and the Police Commission.

Morale 325

Whether these views are justified or not, it is apparent that a con-
siderable portion of the Force membership are dissatisfied with some im-
portant aspects of their work. While it is difficult to tell whether these
feelings affect job performance, they cannot help but have a negative effect
on the administration and operation of the Force.

However, while there are no statistics from other Forces for com-
parison purposes, my 50 years of legal and judicial relationship with a
number of police forces convinces me that the general state of the morale
of the members of the NRPF is little different from that of other Ontario
forces. Now that the negative influences of the 1987 "crisis" and of the
sensationalism of some aspects of the Inquiry are in the past, I would ex-
pect the morale of the Force to develop more positively.

326 Morale

RECOMMENDATIONS

It is recommended that:

1. Following amendments to the promotional system as recom-
mended in Part 1, information sessions, open to all members, be
held to outline and discuss the research and principles employed
in promotion assessment.

2. The promotion system be monitored and evaluated on a regular
basis to ensure its continued integrity and fairness, and the results
of such evaluations be made available to the Force members.

3. Open discussion sessions be held between senior officers and mem-
bers focused on issues and concerns relating to Force discipline
and "employee recognition and reward" with the objective of pro-
moting greater mutual understanding of these concerns, and of
arriving at mutually acceptable means for addressing them.

4. An internal analysis of the perceptions and attitudes of civilian
members be undertaken regarding pay and benefits, in order to ex-
plore the nature and reasons of perceived unfairness, and, if war-
ranted, to undertake remedial action to alleviate any existing un-
fairness.

5. A concerted effort be made to address problems relating to senior
management and leadership, as perceived by Force members,
through emphasis on team-work, inter-group activities and group
discussions related to planning and the setting of goals. The focus
should be on instilling trust and co-operation amongst all ranks,
promoting open and effective communication, increasing the "vis-
ibility " and approachability of senior management and its involve-
ment with other ranks, and to provide a forum for discussion and
resolution of perceived conflicts between ranks.

4 PUBLIC COMPLAINTS

Item N°. 7 of the Inquiry's terms of reference refers to "the poHcies,
practices and procedures of the Force and the Niagara Regional Board of
PoHce Commissioners respecting public complaints against members of the
Force."

Bill 107, "An Act to revise the Police Act and amend the law re-
lating to Police Services," referred to as The Police Services Act, was
proclaimed on January 1, 1991, while this Inquiry was still in the hearing
stage. Part VI of this Act, "Public Complaints," establishes a province-wide
mandatory system for dealing with complaints, based on the system form-
erly in use in The Municipality of Metropolitan Toronto. In light of this, it
would be academic to vigorously examine and assess the multitude of com-
plaint resolution processes available and recommend a model to be applied
in Niagara Region. Therefore, I shall, by and large, confine this section of
my report to the past practices and experiences of the Niagara Regional
Police Force's processing of public complaints against members of the
Force as compliance with my mandate under the above terms of reference.

A review of the directives of the NRPF since 1971, broadly relating
to the subject of public complaints against members, reveals that the first
comprehensive system to document, investigate and resolve citizen com-
plaints was introduced on August 6, 1973. By memorandum, then Deputy
Chief — Operations, James Gayder, designated a Complaints Officer at the
Intelligence Branch to investigate "serious complaints," while those of a
"minor nature" were investigated at the unit level. The Deputy Chief —
Operations maintained a file on, and kept the Chief informed of, all citizen
complaints against individual officers, determined the action to be taken,
subject to the approval of the Chief, and caused the complainant and the in-
volved officer to be notified in writing of the results.

Conspicuous by its absence was any form of civilian input into this
complaint process which was, at all stages, a strictly internal police pro-
cedure. Nonetheless the procedure represented an attempt by the Force's
administration to provide citizens with an avenue by which they could bring
their complaints, real or perceived, to the attention of the authorities for
resolution.

According to the written directives turned over to the Inquiry, it
would appear that this system remained essentially unchanged until 1977
when a Citizen Complaint Bureau reporting to the Deputy Chief — Field
Operations was established and forms provided by the OPC were intro-

328 Public Complaints

duced. The following year the Board enacted a complaints bylaw, like most
of their counterparts in the province, which was inspired by guidelines
distributed by the OPC.

This Ontario blueprint was based on a concept devised by retired
Judge Rene J. Marin to be applied to the RCMP, with one important ex-
ception. Under the Marin concept the RCMP system was to remain largely
one of internal control, but an independent Ombudsman would have review-
ing authority. The Ontario system followed the same concept, but the Om-
budsman's role was to be performed by the OPC. Given the functions of the
OPC, it is questionable whether it could be regarded as independent of the
police as the Ombudsman contemplated by Judge Marin. This feature was
not of course unique to the NRPF's system; it was common to all systems
inspired by the OPC's proposal of 1978.

In essence, the bylaw (N° 34-78) operated as follows. An aggrieved
citizen could make a complaint at any police facility and minor matters
could often be resolved at this point. Unresolved complaints were forwarded
to the Citizen Complaints Bureau for investigation and the facts submitted
to the Chief of Police, or his designate, for determination and action, if
required. Generally, the involved officer was informed of the complaint at
the outset and both he and the complainant were notified of the results of
the investigation. Complainants were also advised that, if dissatisfied with
the action taken, they would, among other things, upon application in writ-
ing, be able to present their complaint to the Board and that a final appeal
could be made to the OPC. Prior to hearing the complaint and rendering its
decision, the Board would have access to the Chiefs report on the matter.
Each significant step in the process was recorded in writing and statistics
were reported to the OPC semi-annually.

The provincial scheme of 1978 formed the basis of the Force's com-
plaint system until the passage of the Police Services Act, but there were
some noteworthy changes. Many of the amendments over the years have
centred on the Board's role as an appellate body in the complaint process.
The Board's obligation to grant a hearing on request, to even apparently
vexatious complainants, has been eliminated by various review mechanisms
since 1982. Again, beginning in 1982, the Board hearings have been form-
alized and their fairness improved by, among other things, introducing full
disclosure and ensuring that the involved officer may be represented. Two
significant changes were introduced in response to recommendations which
flowed from an OPC investigation in 1984, viz: to avoid any perceived con-
flict of interest, the Citizens' Complaint Unit would report to the Chief via

Public Complaints 329

his Executive Officer; and a requirement to keep the complainant and the
involved officer regularly informed of the status of the investigation.

The foregoing process and the improvements which evolved since
1978 constituted an adequate means of addressing the issue of public com-
plaints against members of the Force. However, the use of the Board to in-
ject some civilian input into the system inadvertently created a very serious
flaw in the administration of discipline on the Force. If, after a Board
complaint hearing, an involved officer was convicted under the Police Act,
the officer's appeal would also be heard by the Board. The conflict is ob-
vious in that the Board could find itself reviewing its previous decision
regarding the same circumstances. The Niagara Regional Police Association
expressed concern about this issue over the years, as did the Board, but no
solution was reached. The new Act has resolved this problem.

Unfortunately, there have been serious problems with reliability and
accuracy of the numerical data available with respect to complaints in
Niagara, and throughout the province, so that sophisticated statistical analy-
sis was not possible. However, research indicated that with respect to com-
plaints in terms of numbers received and the type of disposition, the NRPF
did not differ to any great extent from other Ontario forces of comparable
size. Further, the average number of complaints, 120 per annum in recent
years, is very low, relative to the vast number of interactions between police
officers and members of the public.

During a July, 1989 survey of public confidence in the NRPF con-
ducted for the Commission by the Environics Research Group', Niagara
residents were asked what they would do if they had a complaint against
the police. Forty-three per cent say they would go directly to the police, and
24 per cent chose some level of government, 8 per cent a lawyer, 4 per cent
some other action, 3 per cent would do nothing and 17 per cent had no
opinion. Overall, almost three-quarters (73%) were confident that their re-
ported course of action would lead to a fair resolution of the matter. Those
who say they would complain to the police or a government agency indi-
cated a great deal of confidence that their complaint would be resolved
fairly. Nevertheless, it is perhaps significant that some 57 per cent of the
respondents did not choose to take their complaint to the police.

See p. 305.

330 Public Complaints

As previously indicated, the public complaints provisions of the new
Police Services Act expands, with minor modifications, a system which has
been operating in Metropolitan Toronto since 1981 as the Metropolitan
Police Force Complaints Project Act, 1981 and, subsequently, the Metro-
politan Toronto Police Force Complaints Act, 1984. This complaints leg-
islation governs not only all Ontario municipal police forces but the OPP.

Under this legislation the initial stage of the complaint process i.e.,
receipt, investigation and resolution of the complaint retains essentially the
same features as the previous system in Niagara. Although the Police Com-
plaints Commissioner, who is entirely independent of the Force, may inter-
vene in exceptional circumstances his role is usually to closely monitor the
processing of the -complaint. The Commissioner may make recom-
mendations concerning police practices, or procedures, to prevent the recur-
rence of problems encountered by complainants.

Once the Chief renders his decision the complainant may request a
review of the matter by the Commissioner who, if he believes it is required
in the public interest, may refer the case to a Board of Inquiry. Board of
Inquiry tribunals consist of one or three civilian members depending on the
seriousness of the complaint and both the officer and the complainant may
have legal representation at their hearings, where evidence is led by a law-
yer representing the Attorney General. If the Board concludes on clear and
convincing evidence that the officer is guilty of misconduct it may impose
penalties, which range from reprimand to dismissal.

This new scheme has a number of advantages over the previous sys-
tem. Firstly, the confusion surrounding the appellate function of the Niagara
Regional Board of Commissioners of Police has been resolved. Secondly,
without removing the opportunity of the Force to investigate complaints and
discipline its members, the scheme provides for meaningful civilian par-
ticipation at every stage of the complaint process. The new Police Com-
plaints Commissioner has investigative authority and Boards of Inquiry can
not only adjudicate but impose discipline directly, powers not previously
enjoyed by the Board of Commissioners of Police. What is perhaps most
important, a monitoring and review agency as well as an adjudicative body,
which are not only civilian but are in every respect independent of the
Force, have been established to resolve public complaints.

In practice in Metropolitan Toronto the Public Complaints Com-
missioner, as he was known under the former legislation, rarely disagreed
with the decision of the Chief and relatively infrequently injected himself

Public Complaints 331

directly into the complaints process. Nonetheless, his capacity to do so in
addition to his monitoring role greatly enhanced public confidence in the
process and there is no reason to believe it would do otherwise in Niagara.
On the other hand, particularly since a Metro officer was ordered to resign
by a Board of Inquiry in 1985, considerable resistance to the process has
emerged from the police community, which seems to perceive the system
as unfair. Yet the fact remains that a mechanism to openly address legit-
imate complaints from the public about police conduct is absolutely essen-
tial, not only as an integral facet of police accountability but for the fos-
tering of positive police community relations, without which the police can-
not appropriately function.

In his submissions, one of the counsel requested an opinion on the
circumstances under which a charge against a police officer should be laid
under the Police Services Act as opposed to a charge under the Criminal
Code, since it is sometimes implied that favouritism is shown police officers
by laying Police Act charges instead of criminal charges. This may have
arisen as a result of criticisms, voiced in evidence by Gerry McAuliffe, that
favouritism was indicated when one officer is charged under the Police Act,
and allowed to resign, thus avoiding any penalty, and another officer is
charged under the Criminal Code with its more severe penalties. McAuliffe
also expressed concern about the situation where an NRPF officer had been
charged with a criminal offense, was suspended, and, for the two and a half
years it took to dispose of the case, drew his pay, and in McAuliffe's words
"Did absolutely no work for two and a half years." In the end, the officer
was found not guilty and returned to his duties.

It should be understood that, under the Police Act, police are act-
ually subject to a higher standard of conduct than are civilians, and they
may be disciplined for activities for which no civilian would be charged.
Also, it is sometimes a matter of pragmatism to lay a Police Act charge in-
stead of a minor Criminal Code charge, if successful prosecution is at all
doubtful, since a criminal charge would usually result in suspension of the
accused officer for the many months it may take for the charge to be finally
disposed of Meanwhile, the force suffers a reduction in strength, and the
officer remains off-duty at full pay. Thus, the laying of charges under the
Police Act is sometimes a solution to the second concern raised by Mc-
Auliffe. It is true that, if an officer resigns before a Police Act charge is
finally disposed of, the charge lapses, (since the Acr applies only to serving
police officers), but the result is that the officer loses his livelihood.

332 Public Complaints

However, Police Act charges are not appropriate in situations in-
volving activity that is clearly criminal, and of a serious nature. In such
cases, the appropriate Criminal Code charge should be laid.

5 LABOUR RELATIONS

The terms of reference inquire about the existing relations between the
Force and the Board. Most of this subject is dealt with in the section on
Role of the Board. It was examined in the consultant's report prepared by
Professor Jackson and by the workshop that followed. Since the hearings
about Labour Relations matters were concluded, a new Police Services
Board has been appointed, and I understand management-labour relations
have improved. I accordingly address the recent history of the subject only
in general terms.

James Gayder was appointed Chief of the Force on January 1, 1984.
His predecessors had reputations as disciplinarians, and I infer that they had
resisted involvement by the Police Association in the administration of the
Force. Gayder had come up through the ranks of the St. Catharines Force,
a relatively small Force compared to the NRPF, and was affable and
easy-going. His approach to labour relations was very different from that
of his predecessors. He established a good relationship with the Association
and its long-time Administrator, Ted Johnson, and he often discussed with
Johnson matters of mutual concern.

Allan Barnes, who had a background in labour relations, became
chairman of the Board in 1985, and he followed Gayder' s informal ap-
proach to the Association and its administration. Two innovations resulting
from the dialogue between the Chief and the Association, namely an infor-
mal discipline process and a compressed work week, proved very popular
with the Force's rank-and-file.

In January 1986, three new Board members were appointed by the
province. One of the new appointees, Mrs. Denise Taylor, took her duties
very seriously and devoted an unusual amount of time and energy to her
new role. Mrs. Taylor had a reputation as an independent, strong-willed
individual, and her actions in interviewing individual Force members about
Force conditions, without the knowledge of the Chief, caused concern to the
Association. Such approaches were unprecedented, and in the Association's
view violated the spirit of the Police Act and placed the Force members in
an awkward position.

The Association also resented what it saw as Mrs. Taylor's inclin-
ation to publicly criticize the Force through the media. Because of her in-
experience in police matters, they felt she did not understand policing and
its problems, and that her criticisms were based on rumour rather than evi-
dence. Gayder's suspension and subsequent resignation was seen as en-

334 Labour Relations

dangering the new positive labour relations climate that had developed un-
der Gayder.

According to Johnson, the Police Association Administrator, the
good relationship between the Association and senior management, and be-
tween the Association and the Board, deteriorated following Gayder' s
departure, to the extent that the Association stopped inviting the Board
chairman to its annual dinner, and at the same time made Gayder an hon-
ourary member.

In March 1988, James Inman, a civilian with personnel experience,
was appointed to the new post of Chief Administrative Officer, and he took
over the labour relations functions of the Board and the Chief. In September
1989, Diane Pay, a lawyer with extensive labour relations experience in the
education sphere, became Director of Human Resource Services, with re-
sponsibility for labour relations. My information is that she has demon-
strated skill and sensitivity in labour relations, and has gained credibility
with Johnson, with whom she regularly communicates.

At the Commission's workshop in the fall of 1989, the Com-
mission's consultant. Professor Richard L. Jackson, delivered an excellent
report on Labour Relations, and I recommend that anyone interested in the
history and problems of labour relations in the NRPF should obtain a
copy.' During the workshop, points of view were exchanged between the
Association and Board representatives, which appeared to be helpful. I un-
derstand that, following the Commission workshops, the relationship be-
tween management and Association showed somic improvement, and man-
agement appeared to accept the fact that the Association had a bona fide
interest in Force management issues that affected the membership. Johnson
and Shoveller began to contact one another in matters of mutual concern,
and Shoveller began using space, set aside for the Chiefs messages, in the
Association newsletter. In January 1990, the Board hosted an informal
gathering attended by the Association's board of directors, but unfortunately
no further meetings followed.

In June 1992, the new Board met with the directors of the Assoc-
iation. The meeting allowed an exchange of views, and the parties agreed
to meet every three months. It is to be hoped that this is a signal that the
poor labour-management relationships that have long persisted between

See p. XX.

Labour Relations 335

management and the Association (except perhaps for the Gayder years) will
continue to improve.

Generally speaking, it is management which is in the best position
to change labour-management relationships for the better, and it is important
that the new Chief and the Board seize the initiative in that regard. They
must be prepared to recognize that the Association is an equal in the bar-
gaining process, and has a statutory right and obligation to act on behalf of
its members, not only in bargaining, but in management issues which affect
its members. The Association, for its part, will have to adjust its expec-
tations in light of the present economic conditions, and understand the prac-
tical and financial problems that limit management's ability to fulfil the
Association's requests.

With the new Chief and a relatively new Board, and with a more
flexible and conciliatory approach exercised by each party toward the other,
it should be possible to enter into a new relationship of mutual trust and
respect, which can only result in great benefits for the Force and the public.

336 Labour Relations

RECOMMENDATIONS

It is recommended that:

7. The parties work constructively and co-operatively at regularly

scheduled meetings of the labour-management committee to deal
with an entirely open agenda.

2. The Chief Administrative Officer and his staff take initiatives to
establish more regular communication with the Association.

3. Particular attention be given to the labour relations philosophy,
experience and skill of candidates during the selection process for
senior officers.

4. The Solicitor General include police labour relations as a com-
ponent of the required training program for members of Police
Services Boards.

6 RECYCLED RUMOURS

The introduction to vol. 1 of the "James Arthur Gayder Brief forwarded
to the Attorney General referred to the creation of the NRPF on January 1 ,
1971, and stated: "Almost from its inception, the Force experienced prob-
lems and allegations of wrongdoing ...." As early as January 1972, a
Niagara Falls alderman was calling for an inquiry into the Force. As we
have seen, there abounded within the Force rumours of impropriety, most
of which, on close examination, turned out to have no factual foundation.
A member of the OPC told the Inquiry: "... there's an old cliche in policing,
if there's not a rumour by 10.00 o'clock someone will start one ...." How-
ever, while there may be a natural tendency in any group of people con-
stantly working together to share "locker room gossip," it surely behooves
a police officer to demand a considerable measure of proof before passing
the rumour on to the media or to a member of the Board.

How do these rumours start, and how do they attain credibility? A
great deal of police work must be secret, or at least confidential. Perhaps
this is one of the reasons suspicion and rumours seem to abound in police
forces. Some rumours are often originated by malcontents, or as a result of
jealousy or of a grudge. Most are the result of misinformation or misunder-
standing; a minority have some factual basis. Another fertile source of ru-
mours in police forces, just as in other fields such as government, business,
or education, is the suspicion that management gives special consideration
to friends and relatives in hiring, job selection and promotion.

Many rumours have a flimsy base, but gain credibility by repetition.
Commission counsel calls it "Recycling." Force counsel calls it "Net-
working." It often starts by a communication to, or an observation by, per-
son A, which leads to a suspicion that something improper has occurred. A
conveys the suspicion to B; B passes it along to C; (people love to appear
to be "in the know"); C tells D; D may be sceptical, but then, in conver-
sation with A, hears the same thing. D, concerned, asks B about it, and B
says he already knows; that he got it from "the horse's mouth." D is then
convinced that, having received the same information from three separate
sources, it is probably true.

It has been suggested that one of the reasons behind the continued
circulation within the NRPF of the rumours and allegations may have been
the factionalism already referred to. As William Reed, a knowledgable local
criminal lawyer, testified: "If you were the Niagara Falls faction, you
wouldn't trust the St. Catharines faction. That was one of the problems that

338 Recycled Rumours

many officers discussed, the office politics."' However, the rumours and
allegations appear to have been circulated by a fairly small number of
officers and a few non-Force persons, and many police personnel could not
be considered as part of either faction.

The evidence disclosed various examples of the manner in which ru-
mours appeared to be validated by information from more than one source.
Ronald Brady, counsel for the Police Association, and also at one time
solicitor for VanderMeer, on being approached by Mrs. Taylor, told her of
various problems within the Force. Most of these he had heard from Van-
derMeer and Peressotti, particularly the apparent threat on VanderMeer's
life. Gill gave Mrs. Taylor similar information, and she then heard many of
the same things from Sherriff, unaware that much of the information came
to Sherriff from Gill, VanderMeer and Peressotti. Sherriff was the senior
discipline counsel for the Law Society of Upper Canada.

It can be understood why Mrs. Taylor honestly believed there was
something radically wrong in the NRPF. She, in turn, advised Sherriff of
many of the things she had heard, including the VanderMeer death threat.
Neither was aware that an informant, wearing a body pack, had recorded C.,
the alleged threatener, explaining that by "frying a cop" he meant humil-
iating VanderMeer. It was the death threat, apparently left uninvestigated
by senior Force members, together with VanderMeer's complaint that he
had been taken off the investigation of G.H. (the lawyer being investigated
for laundering organized crime money), and G.H.'s statement to Sherriff
that he had influence through Deputy Chief Walsh that would remove Van-
derMeer from the investigation, that convinced Sherriff that the Force was
being infiltrated by organized crime. Sherriff was not aware that Vander-
Meer's temporary "removal" from the investigation had arisen from an al-
tercation between VanderMeer and Chambers, regarding VanderMeer's re-
quest to be assigned a car and be relieved of all other duties for a further
six months. Nor was he aware that G.H.'s only connection with Walsh was
the presentation to Walsh of an award to the NRPF by G.H., as president
of a local club, and a brief conversation about a legal matter. Strengthening
the suspicions of both Mrs. Taylor and Sherriff was information received
from Peter Moon, most of which Moon had heard from VanderMeer.

Other examples of the "recycling" of rumours can be seen through-
out the evidentiary portions of this report. One that kept cropping up was
that regarding Gayder's gun collection. In 1977 there were discussions

Inquiry transcript, vol. 141 (Jan. 11, 1990):73.

Recycled Rumours 339

between D.B. of the RCMP and Sergeant Ryan about the Gayder gun regis-
trations. In 1983, Chief Harris had the registrations checked out in relation
to the DeMarco gun incident, and later that year the OPC received a copy
of them anonymously in a brown envelope. In November, 1983, Mel Swart
raised the matter in the legislature; in June, 1984, DeMarco and D.B. gave
a copy of the registrations to McAuliffe and McAuliffe made two broad-
casts in July referring to Gayder' s guns; in September, 1984, the OPC com-
pleted their investigation finding nothing illegal about Gayder's collection,
but the full report was not published. In January, 1985, VanderMeer and
Peressotti advised the OPP of the allegations, and the matter was included
in the Project Vino investigation. In the spring of 1986, a copy of the reg-
istrations was sent anonymously to the regional councillor, Mai Woodhouse,
and Woodhouse sent them to the Solicitor General, and gave copies to Mrs.
Taylor. In the summer of 1986, Carol Berry told VanderMeer about her
brother moving boxes of weapons into closet 374, on Gayder's instructions,
and that fall VanderMeer told Mrs. Taylor of his suspicions about Gayder's
guns. In January, 1987, Mrs. Taylor told Moon and her lawyer, Dunlop, of
her concerns about the guns. On March 6, 1987, the Hamilton Spectator
sent Shoveller copies of some of Gayder's gun registrations which they had
received anonymously through the mail. Gayder's guns became the focal
point of the IIT investigation and appear to have been the main reason for
the calling of this Inquiry. The persistent resurfacing of the allegations, in
spite of the conclusions of two separate investigations that there was no
illegality, illustrates the difficulty of terminating rumours and the public's
appetite for them.

Thus, for more than 10 years, rumours kept circulating about impro-
prieties in Gayder's gun collection — rumours which were substantially
unfounded, repeatedly investigated, and yet nevertheless persistently re-
surfaced. The atmosphere in the Force which made it possible for this and
all the other rumours to be "recycled" in this fashion was one of the most
significant problems which this Commission has examined.

It is to be hoped that members of the Force who read this report and
recognize the weakness of the factual background of most of the rumours
investigated, will, in future, examine more critically rumours and allegations
of impropriety within the Force before passing them on. Without the
co-operation of the members of the Force, there is little this Commission
or the Force management can do to prevent the dissemination of such ru-
mours except to ensure that when such rumours surface, they are dealt with
promptly, openly and effectively, and that the results are made known. If
the recommendation in Part II of this report for a special provincial

340 Recycled Rumours

investigation unit is accepted, allegations of serious misconduct would be
referred to that unit.

The Force must establish a clearly defined policy discouraging
"rumourmongering," and a message must be sent to all Force levels that
such conduct is unacceptable. The policy must ensure that allegations of
misconduct are, through investigation, laid to rest and never resurrected. It
goes without saying that senior levels must not only not participate in the
dissemination of rumours, but must not be seen to condone them. As an ex-
ample, it was quite improper for Deputy Chief Shoveller to send Sergeant
Newburgh, who suspected Gayder was having Newburgh's telephone wire-
tapped, to speak to Mrs. Taylor about it, since Mrs. Taylor was also sus-
picious because she had heard "clicking noises" on her telephone line. If
there was any substance to the suspicion, an immediate investigation of it
should have been commenced, rather than contributing to its spread.

During the hearings, it became evident that some of the false alle-
gations came, in part at least, from retired officers. Section 45 of the Police
Services Act requires an oath of secrecy by a police officer, but, since the
Act applies only to police officers unless otherwise specified, it is doubtful
whether the oath of secrecy survives the officer's departure from the Force.
It is recommended that consideration be given to a provision that the oath
continues to be effective after departure from the Force.

If Force members have genuine concerns, they must take them to
a superior officer, who must ensure that they are dealt with through the
proper channels. This would entail prompt investigation within the Force,
but upon the implementation of the recommendation made in Part II for a
corrupt practices unit, major matters will be referred to it. Until such a unit
is available, the matter would have to be dealt with by an internal affairs
unit whose members had been carefully screened to ensure credibility with
the Force and the public. However, as has been seen, internal investigations
are almost invariably viewed with suspicion. Because of these concerns, I
reiterate my recommendation for a special investigation unit.

Recycled Rumours 341

RECOMMENDATIONS

It is recommended that:

7. Force members be encouraged to immediately report, to a des-

ignated senior officer, rumours or allegations of improper conduct
on the part of a Force member. Such rumours or allegations be
promptly investigated and dealt with, and the results be made
known. If the allegation is one of corrupt conduct, it should be
referred to the special provincial corrupt practices unit recom-
mended in Part II of this report.

2. Dissemination of rumours (except to a senior officer in accord-
ance with the previous recommendation) should not only be dis-
couraged, but persistent rumourmongering should be subject to
disciplinary proceedings.

3. Consideration be given to amending the Police Services Act to
provide that the oath of secrecy required by s. 45 of the Act con-
tinues to be in effect following the officers departure from the
Force.

PARTY

FINIS

Why So Long? -

Problems and Frustrations of an

Adversarial Inquiry

Conclusions

1 WHY SO LONG? -

PROBLEMS AND FRUSTRATIONS
OF AN ADVERSARIAL INQUIRY

From its inception, the Inquiry was beset by delays. Some were unavoidable
due to the extremely broad terms of reference which required an examin-
ation of the whole operation of a new and relatively inexperienced regional
police force throughout its 20-year history. Some were due to the fact that,
from the start of the hearings, several of the parties took a very adversarial
and sometimes bitter confrontational approach to one another. Some were
due to the reluctance of some individuals and organizations to co-operate
with the Commission investigators, and some were due to the insistence of
some parties to go down avenues that much later turned out to be
dead-ends.

Most counsel were responsible and co-operative. Unfortunately there
was a marked lack of co-operation and openness on the part of a small min-
ority which greatly prolonged the Inquiry. This was displayed to a greater
or lesser degree with almost every witness, almost every day, and on almost
every subject.

Witnesses were cross-examined endlessly, apparently in the hope
that if counsel kept digging, something favourable to their client would
eventually emerge. Attempts to limit cross-examination resulted in long
arguments in justification of the questioning, with suggestions that limiting
cross-examination would give the appearance of a cover-up. As a result, it
was often necessary for Commission counsel to call several witnesses to
prove a point where, in ordinary circumstances, one would have done.

As already indicated, I accept the usefulness of television in in-
forming the public by way of telecasting the proceedings of a public in-
quiry, and the benefits outweigh the problems. Nevertheless, in an adver-
sarial type of inquiry, there are disadvantages. In addition to the delays
caused by some of the obfuscation and lack of co-operation as outlined
above, there was an overall problem that some counsel appeared to be fre-
quently playing to the press and television cameras on behalf of their
clients, rather than eliciting relevant evidence for the benefit of the
Commission. This often took the form of pursuing lines of questioning,
phrasing questions or making statements that appeared to be more relevant
to the public telecast and to tomorrow's headlines than to the purposes of
the Commission.

346 Why So Long ? — Problems and Frustrations of an Adversarial Inquiry

Counsel were frequently at each other's throats. Unnecessarily
caustic comments were usually made unexpectedly and were gleefully re-
corded by the media before they could be stopped. Because of the
wide-ranging nature of a public inquiry, and the fact that many rules of
evidence do not apply, warnings had little effect and usually produced a
protracted argument about the relevance of the matters objected to, thus
further delaying proceedings. Directions to abandon a seemingly irrelevant
attack on another party, or an apparently self-serving line of questioning by
some counsel, inevitably met with a submission, with one eye cocked to the
media, that the relevancy would reveal itself in due course, and that the
Commission "would surely not want the public to think there was a
cover-up." Often included was a veiled threat that counsel would take a
position that the Inquiry was a "whitewash" if the Inquiry did not go into
the areas which counsel was attempting to explore, and an assurance that
counsel was only trying to "leave no stone unturned."

Such conduct did little to advance the Commission's objects, and re-
peatedly delayed the Inquiry by inevitably provoking reaction from counsel
for the person attacked, followed by much bickering and eventual retal-
iation. The possibility, frequently hinted at, that rulings restraining such
conduct could lead to even greater delays and expense through appeals to
Divisional Court (some of which were actually commenced), made it diffi-
cult to control the problem, since months of delay and unjustifiable expense
inherent in such applications could effectively derail the Inquiry, and that
may well have been the goal of some such actions. As a result, the Inquiry
was forced to accept the "leave no stone unturned" position, and to chase
down many blind alleys.

In "Role of the Board" Part B, I have outlined some specific actions
by certain counsel which prolonged this Inquiry.

Another example occurred just as we were about to conclude the
evidentiary part of the Inquiry. On August 20, 1990, the hearings were ad-
journed to September 10, 1990, for the filing, at that time, of certain briefs,
and submissions in regard to them, and it was announced that it was ex-
pected that final submissions on the last phase of the Inquiry would be filed
on October 2, 1990. However, in mid-morning of September 12, 1990, as
we were about to adjourn the hearings pending final submissions, Mr. Row-
ell, counsel for Sergeant VanderMeer, without any notice to Commission
counsel, appeared for the first time in months to make a lengthy public
statement. He accused Commission counsel of professional bias against his
client in having a "hidden agenda" of deliberately not calling evidence

Why So Long? — Problems and Frustrations of an Adversarial Inquiry 347

favourable to his client, of being after his client's job, and of not providing
to him and other counsel all transcripts of interviews of all witnesses inter-
viewed by Commission investigators regardless of their perception of their
relevance or credibility. He referred in particular to a transcript of an
interview of D.B. (the ex-RCMP constable), relating to his purported know-
ledge of the source of some of ex-Chief Gayder's handguns, which evi-
dence, counsel stated, would, "if true, overwhelmingly vindicate the position
that my client has taken from the beginning, and that it has been buried is
of incalculable harm to my client's position."

Predictably, this statement, characterized by one counsel as "blind-
siding Commission counsel," created a considerable sensation in the media
since it was carried live on cable television and garnered headlines in the
press. As a result, instead of winding up the Inquiry as expected, the Com-
mission investigators were redeployed and spent several weeks rechecking
the statements of D.B. which they had previously discounted, and in inter-
viewing the other witnesses affected by those statements. Full transcripts of
all interviews were delivered to all counsel, and the Inquiry resumed on
October 23, 1990. Four weeks of evidence on the allegations followed, in-
cluding D.B.'s admission under cross-examination that some of his earlier
evidence had been a "total fabrication." As will be seen from my report of
the "D.B."' phase of this Inquiry, it disclosed no credible evidence that ad-
vanced the objects of the Inquiry, or, for that matter, of Sergeant Vander-
Meer, in any way, and I concur with the opinion of some other counsel that
it was a complete waste of two months of the Inquiry's time. Unfortunately,
once Mr. Rowell's sensational charges and insinuations of a cover-up had
been made, followed by the inevitable media reaction, the allegations had
to be fully explored.

In the end, after hearing the evidence, even Mr. Rowell did not rely
on D.B.'s credibility, but submitted that it was improper for Commission
counsel to discount or discard any transcripts of interviews obtained by the
Commission investigators on the ground of irrelevancy or lack of credibility
without first circulating them to all counsel for their comments, a sub-
mission with which I completely disagreed.

In September, 1990, we had had nearly two years of evidence, and
most counsel were anxious to make their final submissions and wind up the
Inquiry without further legal manoeuvres. It is my opinion that, instead of

See p. 50.

348 Why So Long ? — Problems and Frustrations of an Adversarial Inquiry

being sidetracked by the unproductive D.B. episode, had final submissions
been called for in October or November, 1990, as announced, we probably
would not have been faced with a further year-and-a-half delay while coun-
sel fruitlessly litigated the question of whether my report could include
findings of misconduct. I also found it rather inconsistent that Mr. Rowell,
who frequently complained that he was not receiving full disclosure,
(although disclosure by Commission counsel was immeasurably greater than
anything I have ever seen in my 28 years on the Bench), failed to follow
the accepted custom amongst lawyers of disclosing to another counsel their
intention to make personal charges against him in order to allow that coun-
sel to consider his answer. This is particularly so in view of my ruling of
September 6, 1988, that counsel who wished to call their own witnesses
were free to do so, subject to the requirement that they provide other coun-
sel with disclosure of the gist of the proposed evidence in the same manner
as Commission counsel was doing.

It should be pointed out that during the summer of 1990, Sergeant
VanderMeer, by his own choice, took no part in the proceedings. In late
June, 1990, Sergeant VanderMeer and Ms Dunlop, who at that time was
appearing for him, had generated much publicity by walking out of the
hearings protesting that Ms Dunlop was being unfairly restricted in her
cross-examination, and from exploring matters I had ruled irrelevant. The
September 12, 1990 speech by Mr. Rowell was the first the Inquiry had
heard from Sergeant VanderMeer or his counsel since that time. Ms Dunlop
later returned to the hearings, without explanation, and participated during
the evidence of D.B. and the other related witnesses.

On October 1 1, 1990, Ms Dunlop attended a meeting of all counsel
where the Notice provisions of s. 5(2) of the Public Inquiries Act were dis-
cussed. All counsel agreed that the final submissions would provide com-
pliance with that section, except that Ms Dunlop took no part in those dis-
cussions. Then, after the conclusion of evidence and when all counsel were
preparing their submissions, Sergeant VanderMeer's counsel began taking
the position that the Notice requirements had not been complied with.
Eventually a motion was brought. When I ruled against their position.
Sergeant VanderMeer joined with the Board in an expensive application
which was rejected by the Divisional Court. All of this delayed the Inquiry
by more than a year.^ I have commented above in my chapter, "Role of the

For more details on this see "Role of the Board." See also my rulings of September 3, 1991
and the ruling of the Divisional Court, dated March 31, 1992, all of which are included in
Appendix 1.

Why So Long? — Problems and Frustrations of an Adversarial Inquiry 349

Board," on the unusual aspect that the Board and Sergeant VanderMeer
were represented by one counsel and acted in concert on that application.

A public inquiry such as this one is mandated to examine a broad
range of potential problems and to come up with recommendations for pos-
sible solutions. It is not a trial. However, some of the parties before this
Inquiry treated it as if it was a trial, and took an adversarial stance
throughout. While many of the examples which I have highlighted here re-
lated to Sergeant VanderMeer, the problem was by no means restricted to
him. Much of the Inquiry was conducted by some of the parties on an ad-
versarial basis, taking shots at each other in the arena of the Commission.
When the Commission attempted to intercede, or if it appeared that it might
criticize some of the parties, those parties in turn began criticizing the
Inquiry itself. The media and Divisional Court thus became weapons in the
arsenals of those carrying out these campaigns.

This conduct cannot be explained simply on the basis that the coun-
sel responsible were more familiar with adversarial proceedings. Rather, I
conclude that it was a symptom of an underlying problem which has pla-
gued this Force for a considerable time. Strong animosities existed between
parties, who took every opportunity to advance those animosities at the
expense of the Inquiry and the Force it was there to study. Unusual re-
lationships existed, which, when coupled with the frictions between the
parties, resulted in interest groups protecting each other instead of working
towards the good of the Force. The Inquiry, with all the media attention it
attracted, provided a forum in which these long-standing problems could be
magnified and exhibited before the public.

One of the most significant problems which I have identified in the
NRPF is that, in certain sectors, there was an atmosphere where individual
or group animosities were allowed to fester and, combined with
self-interest, to take precedence over the public interest and the good of the
Force. The Inquiry became a focal point for those animosities, with the re-
sult that what should have taken about two years ended up lasting more
than five years. The rest of the Force and the public it serves have paid the
price.

Individuals may come and go, but it is important that the atmos-
phere referred to above be corrected. It is hoped that the issuing of this
report and the many recommendations within it will go a long way towards
providing a solution. Strong leadership will be required to set a new stand-
ard for this Force in the years ahead.

2 CONCLUSIONS

At the outset of the Inquiry, it appeared to me, and apparently also to the
public, that the problems of the NRPF centered around improprieties in con-
nection with guns and the Force garage, and possibly infiltration of the
Force by organized crime. After intensive investigation, and months of ex-
haustive examination of the information produced by the investigation, it
became clear that the rumours and allegations of corruption were not sup-
ported by the evidence. Nevertheless, the long and expensive exercise of
permitting minute examination of the evidence by all interested parties in
full view of the public was necessary to dispel the cloud of suspicion that
had plagued the NRPF throughout its existence. No investigation could have
been more complete, and I am grateful to the seven dedicated and talented
officers from the Metropolitan Toronto Police Force who followed up and
reported in great detail upon every rumour and allegation that was brought
to their attention. No examination of those reports by the counsel repre-
senting many varied interests could have been more thorough. Counsels'
frequent demand that "no stone be left unturned" became the watchword of
the Inquiry in its effort to lay to rest, once and for all, the persistent and
often poisonous rumours that had caused some loss of public confidence in
the Force. No counsel suggested in final submissions that the investigation
was less than thorough and complete.

Human nature is such that, at first blush, there may be disappoint-
ment in some quarters that this lengthy and expensive Inquiry failed to un-
cover corruption, and that no one has been "nailed to the mast." There was
no evidence to justify any such finding. Unfortunately, it was probably not
clear to the public that, as it turned out, the Inquiry was called, not to look
into wrongdoing, but to look into rumours of wrongdoing. In their book
"Greenspan," the authors, Edward Greenspan and George Jonas, in discuss-
ing public inquiries observed, that "The big headlines will be made by the
accusations, while the answers, no matter how convincing, will usually be
printed on the back pages of the newspapers much later." The Niagara sit-
uation illustrates that the result can be unfortunate for the individuals who
are the subjects of the headlines. However, what is important to the public
is that the Inquiry make the answers known.

The preamble to the Order in Council implicitly expresses the hope
that the Inquiry will restore public confidence in the Force by answering the
public's concerns, and my conclusion that there is no evidence of corruption
should accomplish this task.

352 Conclusions

However, instead of corruption, the Inquiry did reveal serious prob-
lems which undermined the efficiency of the Force. These included: 1) An
atmosphere within the Force of suspicion and mistrust of senior officers; 2)
A failure on the part of the Board to recognize its proper role; 3) A poor
relationship between the Board and some of its senior officers; 4) Manage-
ment styles and techniques carried over from the small municipal forces of
the 1960s which were no longer appropriate for the larger regional force of
current times; and 5) An atmosphere where individual differences were al-
lowed to fester and take precedence over the good of the Force and the
public.

It is hoped that these shortcomings can be overcome through lessons
learned during this Inquiry, and by implementation of the Commission's re-
commendations. I am satisfied that the Niagara Regional Police Force is a
good one, and I was impressed by the competence and dedication of its
members and their concern for their Force. It is tragic that the reputation of
a fine force could be seriously damaged by the rumours that circulated con-
tinually both within the Force and amongst the public. I assure the public
that rumours of corruption in the Force and of infiltration by organized
crime have no foundation in fact, and that the Niagara Regional Police
Force is staffed by officers and civilians who are competent and dedicated,
and who are prepared to do their part in restoring confidence in their Force.
With the appointment of a new Chief, who comes to the Force uninhibited
by the factions and jealousies faced by former Chiefs, the NRPF is making
a new start. I appeal to the members of the NRPF and to the members of
the public to give him their full support, to take pride in the excellence of
their Force, and to do their part in putting an end to the type of unsub-
stantiated rumours that have done so much harm to the Force in the past.

APPENDICES

Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
Appendix I
Appendix J

Order in Council

Chronology

Participants granted standing

Persons who appeared as witnesses

List of exhibits

Consultants

Inquiry staff

Counsel

Rulings

List of Abbreviations

APPENDIX A

Order In Council

WHER£AS concern hat b*en txpr*«>e£ in relation to the operation
•nd adninittration of the Niagara Regional Police Force, and

WHEREAS the •xpretsion of such concerns Bay have resulted in a
loss of public confidence in the ability of the Force to discharge
its law cnforcereent responsibilities, tn£

WiZPUiS the Niagara Regional Board of Commissioners of Police has
mfy^-i the Crvernnent of Ontario to initiate • public inquiry into
the operation and adr.inistration of the Force, and

WHEKEAS the Goveriunent of Ontario is of the view that there is
need for the public and Bcmbers of the Force to have confidence in
the operation and administration of the Force, and

WHEREAS it is considered desirable to cause an inquiry to
be Bade of these matters which are matters of public concern.

VOV TREREfORE pursuant to the provisions of the Public Inquiries
Act, K.S.O. 1960, C.411. a COBscission be issued appointing the
Honourable Judge W.E.C. Colter who is. without expressing any
conclusion of law regarding the civil or criminal responsibility
of any individual or organisation, to inquire into, report upon
and Bake reeeancndations with respect to the operation and

356 Order In Council

•^ministration of tht Kiagara Kegional Police Force since its
creation in 1971, with particular regard to the following:

(1) the hiring practices and promotional processes -of

the Force;

(2) the storage and disposal of all property seized or
otherwise coming into the possession of the Force
during the discharge of its responsibilities, with
particular cnphasis en the storage and disposal of
firearms;

(3) the policy and practices of the Force with respect
to the use of police or municipal resources and any
use of those resources for private purposes;

(4) any inappropriate practices or procedures with
respect to the management of the Force which have
been established either by the Niagara Regional Board
of Cowoissioners of Police or by aenior officers of
the Force;

(5) the state of existing relations between aembers of
the Force and the Niagara Regional Board of
Commissioners of Police;

Order In Council 357

- 3 -

(6) the r«portin9 relationships between the senior

officers of the Force and the Kiagara Regional Board
of Commissioners of Police and internal reporting
relationships within the Force;

H) the policies, practices and procedures of the Force
and the Niagara Regional Board of Commissioners of
Police respecting public complaints against members of
the Force;

(P) the natters disclosed by the Inquiry into the Drug

Raid on the Landmark Hotel in 19?4 and the propriety,
efficiency and completeness of any other
investigations into the activities of the Niagara
Regional Police Force by other police forces or
police agencies since the creation of the Kiagara
Regional Police Force and the action taken to correct
identified problems and to implement recommendations
resulting from such Inquiry and investigations;

(9) the Borale of eembers of the Force;

358 Order In Council

• 4 -

(10) whether the AjntlganAiion of the police forces which
now constitute the Force has resulted in • cohesive
police organization that permits orderly and
appropriate functioning;

(11) the policies and practices of the Force relating to
release of Information to the news nedia, and the
state of existing relations between the Force and
the news nedia; and

(12) iapropricties or viisconduct on the part of ■tembers
of the Force or any other police agencies arising
out of the natters herein enumerated,

AND THAT Covermnent Kinistries, Boards, Agencies and Coisrissions
shall assist the Cotnrr.issioner to the fullest extent in order that
he Bay carry out his duties and functions, and that he shall have
authority to engage such counsel, expert technical advisors,
investigators and other staff as he deeins proper at rates of
remuneration and reimbursement to be approved by the Management
Board of Cabinet in order that a complete and comprehensive report
nay be prepared and submitted to the Solicitor General,

Order In Council 359

- S

AND THAT the «ini»try of the Attorney General will

be responsible for providing administrative support
to the Inquiry,

AND THAT Part III of the said Public Inquiries Act
be declared to apply to the Inquiry,

AND THAT Order-in-Council numbered O.C. 429/18, dated the
18th day of February, 1988, be revoked.

nded ■. ^ ^ S - .Jl^^oncurred^^. . . . ^y C/cL t£Z

ir/a/

Reconme

Solicitor General Cha

Approved

•nd Ordered March 2S, 1986

Oatc Lieutenant Governor

izS-aCv-

APPENDIX B

CHRONOLOGY

In writing this report it has been necessary to deal with many events piece-
meal, referring to them in different places from different perspectives ac-
cording to the subject being addressed in the particular chapter. While this
seemed to be the best way to deal with the merits of the various subjects,
it may cause some confusion for readers who have not spent the past five
years studying the history of this Force. To assist those readers I am setting
out below a chronological summary of many of the factual events which
contributed to the developments or problems analyzed in the main body of
this report.'

BACKGROUND

Spring 1969 — Guns registered to Ross were seized by the police and some
ended up being registered to Nepon and/or Gayder.

June 1969 — Walsh gave Gayder a number of guns which had been held
by the Welland police department.

June 27, 1969 — The Regional Municipality of Niagara Act was proclaimed.

January 1, 1970 — The Board of Commissioners of Police for the NRPF
came into existence.

January 1, 1971 — The NRPF came into existence. The original Chief of
the Force was Albert Shennan; Harris was Deputy of Administration; Gay-
der was Deputy of Operations.

January 1972 — A Niagara Falls alderman called for an inquiry into the
Force due to the alleged use of police cruisers by off-duty detectives.

January 1972 — Then-Deputy Chief Harris was acquitted on nine Police
Act charges relating to his disciplining of uniform officers.

Early 1970s — Guns seized by the NRPF were stored in the "arsenal" closet
near Deputy Gayder' s office at 68 Church Street.

' In preparing this chapter I have relied extensively on a lengthy chronology contained in the
submissions of Commission counsel, although the facts set out represent my own findings.

362 Chronology

May 1972 — Diamonds were seized from Key on suspicion of their being
stolen, and were stored in the Force safe.

December 1972 — Lamonte found a handgun in his driveway and turned it
in to the NRPF.

May 1973 — Harris and Gayder exchanged roles, so that Harris became
responsible for Operations and Gayder for Administration.

July 1973 — The NRPA won a Supreme Court ruling preventing the pro-
posed transfer of certain constables between divisions.

May 11, 1974 — The Force conducted a drug raid on the Landmark Hotel.
The methods used by the Force in executing this raid led to a Royal Com-
mission under Judge Pringle, who conducted public hearings and issued his
report in January, 1975.

September 4, 1974 — The Force traded a number of seized and found hand-
guns. The Lamonte gun was included in the trade, but appears to have been
given by Smith to Gayder, who registered it on Septembei 26, 1974. This
was the last handgun registered to Gayder.

January 29, 1976 — The residence of then-Sergeant Ed Lake, an Identifi-
cation officer, was searched by the RCMP on smuggling allegations.

May 7, 1976 — Judge McTurk sentenced Lake to a loss of eight days' pay
in respect of police property found in his basement.

1977-78 — D.B. of the RCMP obtained copies of the gun registrations of
then Deputy James Gayder and communicated suspicions about them to
members of the NRPF.

1977 — Shennan retired. Harris was appointed Chief. Gayder remained as
Deputy Chief responsible for Administration; Walsh became Deputy Chief
responsible for Operations.

Early 1978 — Seized guns began to be stored at the secure storage facility
at 1 1 Neilson Street. No guns were moved there from the arsenal closet.

Fall of 1978 — Officer Jim Johnson stored guns, turned in under the
"amnesty" gun laws, in the arsenal closet. He observed two or three boxes

Chronology 363

of weapons there that Gayder told him were being held onto for the purpose
of a museum.

1978 — Reginald Ellis was hired as the Force mechanic and was given per-
mission to do work on private vehicles on his lunch hours as one of the
terms of his employment.

Approximately 1980 — Gayder put some 26 to 30 of his own handguns in
a brown bag and stored them in the arsenal closet.

THE EARLY 1980s

June 1981 — Detective Sergeant Wilhelm of the OPP did a memo to his
superiors concerning various pieces of second-hand information that led him
to believe there might be problems within the NRPF; much of this
information came from VanderMeer and Melinko.

Fall of 1981 — Gayder checked the ownership of a handgun for Mark De-
Marco and returned it to him without having DeMarco register it. It later
turned out that the gun had been stolen.

May/June 1983 — DeMarco informed McAuliffe of this matter. McAuliffe
was a radio broadcaster with the CBC; he did a broadcast about DeMarco' s
story. Chief Harris then ordered Sergeant Teggin to investigate Gayder
concerning this transfer of an unregistered firearm to DeMarco.

July 1983 — Harris announced that he would retire as Chief at the end of
the year. He told the Board of Commissioners that Gayder was under in-
vestigation and "they might be well advised to wait a little while and see
what the outcome of that investigation was." The Board nevertheless ap-
pointed Gayder to be the next Chief.

Summer 1983 — Harris instructed Teggin to contact the RCMP and obtain
copies of all of Gayder's gun registrations. Teggin received them and then
reviewed each one with Harris. After Teggin concluded his investigation,
Harris decided that no charges should be laid against Gayder. DeMarco was
charged concerning the same incident, although the charges were with-
drawn.

August 1983 — G.H., a lawyer with connections to organized crime, alleged
to Steven Sherriff, discipline counsel with the Law Society of Upper

364 Chronology

Canada, that he had "influence" within the NRPF, particularly with then-
Deputy Chief Walsh. G.H. was being investigated by VanderMeer, who
added to Sheriffs concerns about this allegation.

Throughout 1983 — There was a series of articles in the Standard crit-
icizing the NRPF and alleging a range of misconduct. Also, during this time
period, Mel Swart, a local MPP, raised a number of questions in the legis-
lature about the Force, and Gerry McAuliffe, a CBC radio reporter, did a
series of broadcasts on alleged improprieties in the Force.

October 13, 1983 - The Solicitor General ordered a joint OPC/OPP invest-
igation into the NRPF. The OPP investigated and cleared certain allegations
of assaults on citizens. The OPC investigated all of the other allegations.

October, 1983 — At some point in the OPC investigation the investigators
received a copy of Gayder's gun registrations in an anonymous brown en-
velope. On October 26, 1983, the OPC investigators received a second set
of these from Teggin on the instructions of Chief Harris. A comparison of
Teggin's originals with the ones provided in the brown envelope to the
OPC shows some distinct differences, indicating that there were at least two
different sets circulating within the Police Force at the time.

November 7, 1983 — Mel Swart in the provincial legislature raised the topic
of Gayder's guns and requested that the OPC in its on-going investigation
examine "the vendor permits."

January 1, 1984 — Gayder became Chief of the Force.

March 1984 — Melinko and Onich found four guns in a box given to Mel-
inko by Lake. They marked them with invisible ink and apparently re-
placed them in Lake's locker.

April, 1984 — The same guns and about 20 more were found by Peter Kelly
in Lake's old locker.

May 1984 — The main portion of the OPC report was submitted to the Sol-
icitor General.

June 1984 — D.B. (the former RCMP officer), through an introduction
made by DeMarco, approached McAuliffe of the CBC. D.B. gave McAu-
liffe copies of Gayder's gun registrations. McAuliffe then contacted Teggin
in an attempt to do further research on Gayder's guns. Teggin submitted

Chronology 365

memos reporting on these meetings to Peter Kelly, who in turn forwarded
them to Shoveller, who reported on this matter to Gayder.

June 19, 1984 — McAuliffe met with Gayder and Parkhouse to confront
them with the material he was gathering for his stories.

July 3 and 5, 1984 — McAuliffe aired two stories about Gayder' s gun col-
lection, implying there were some improprieties in the manner it was
acquired.

June or July 1984 — The arsenal closet was removed due to building re-
construction. The entire contents of this closet, including the weapons, were
moved to the vault in the old magistrate's offices on the top floor of the
building.

July 30, 1984 — The Solicitor General made public a 19-page summary of
the OPC investigation, keeping the full report confidential. This summary
was criticized by the Standard as a "whitewash."

August 7, 1984 - Mel Swart, the MPP for Welland/Thorold, wrote Sol-
icitor General George Taylor in strong criticism of the summary version of
the OPC report which was made public, and calling for the release of the
full report.

August 15, 1984 — An RCMP undercover officer and an informer had an
unrecorded conversation with C. during which C. stated "What about frying
a cop?" with reference to VanderMeer. This was treated as a potential threat
to VanderMeer's safety. Subsequent investigation did not produce conclus-
ive evidence of an intent to threaten VanderMeer, and the investigators
(including Shoveller) concluded there was insufficient evidence on which
to lay a charge.

September 19, 1984 — C. lodged a citizen's complaint against VanderMeer.
Investigation of this complaint was assigned by Walsh to Chambers and
other officers, but was suspended until after all the criminal charges against
C. were resolved, so that there could be no suggestion of interference. This
left the complaint investigation on hold indefinitely.

September 1984 — The OPC submitted part IX of their investigation report
to the Solicitor General, finding no improprieties with Gayder' s gun col-
lection. The report was not made public.

366 Chionology

Fall of 1984 — The arsenal closet contents were moved from the old mag-
istrate's vault with the assistance of Inspector Kopinak. Ten to 15 boxes of
guns, museum items, binders and chronological files were moved to a kit-
chenette storage area off Gayder's secretary's office. Gayder told Kopinak
that some of the boxes of weapons were to be reviewed for a museum.

November 1984 — Walsh publicly criticized VanderMeer for alleged pref-
erential treatment in the arrest of a lawyer. Walsh and VanderMeer were not
on amicable terms.

December 27, 1984 and January 4, 1985 — VanderMeer and Peressotti
held secret meetings with officers of the SEU, OPP and Stephen Sherriff,
during which they passed on a range of allegations concerning the Force.
As a result of Sandelli's report on these meetings, the OPP assigned officers
Joyce and McMaster to investigate these allegations. The investigation,
code-named "Project Vino", was conducted as a secret investigation in order
to preserve the anonymity of VanderMeer and Peressotti.

January 30, 1985 — Gayder through Sergeant Pay sent a letter to the Sol-
icitor General requesting approval for the NRPF to operate a weapons
museum.

January 31, 1985 — Walsh's last day of active duty on the Force. On Jan-
uary 18, 1985, Parkhouse and Shoveller were appointed Deputy Chiefs of
Administration and Operations, respectively.

February 5, 1985 — VanderMeer and Peressotti introduced George Onich
to the OPP and he became involved in Project Vino. Onich provided them
with information on guns, including a concern that Gayder may have been
converting seized guns to his personal use. A check of Onich's information
by the OPP against Gayder's registered guns provided no substantiation.

February, 1985 - The Vino investigators obtained Wilhelm's 1981 report
and requested he go back to his sources and update it. Wilhelm spoke with
his sources, including Melinko and VanderMeer, and submitted a February
7, 1985 memo with similar allegations.

February 1985 — Joyce and McMaster were also assigned to investigate an
allegation brought forward by McAuliffe of the CBC that the NRPF had il-
legally wiretapped DeMarco's telephone.

Chronology 367

May 18, 1985 — The Standard ran an article alleging favouritism to rel-
atives in the hiring of police officers.

Late June 1985 — A new government was formed in the province of Ont-
ario.

July 1985 — Peressotti interviewed a criminal who claimed he had been in
jail with C. and had been offered money to kill VanderMeer. Peressotti had
a new investigation of this alleged death threat assigned to his partner
Arcaro. Arcaro cleared the allegation as unfounded, after consultation with
Crown Attorney Root.

July 1985 — Peter Moon of the Globe and Mail and VanderMeer met for
the first time. VanderMeer told Moon about some of his concerns regarding
the NRPF, including Gayder's gun collection and a poker game at Schenck
farm. At VanderMeer' s request Moon obtained copies of Gayder's gun
registrations from McAuliffe and gave them to VanderMeer.

August 12, 1985 — VanderMeer, Peressotti, Onich, Arcaro and Sheriff met
with Joyce. Joyce informed them that the OPP Project Vino investigation
was likely to be brought to a close in the near future. VanderMeer "indi-
cated that would not be the end of it."

September 30 to October 2, 1985 — McAuliffe aired six stories about the
DeMarco wiretap complaint, strongly suggesting that the NRPF had been
engaging in illegal wiretaps and calling for a public inquiry. Mel Swart
raised the matter in the legislature and asked the Solicitor General for a
public inquiry. McAuliffe quoted Bob Rae as saying that he would be push-
ing Premier Peterson for an inquiry.

October 7, 1985 — Denise Taylor wrote to her local MPP and expressed an
interest in being appointed to the Board of Commissioners of Police.

October 8, 1985 — Bob Rae sent David Peterson a note suggesting that a
public inquiry be called into the NRPF due to the McAuliffe stories about
alleged illegal wiretaps.

October 18, 1985 — Moon published two articles in the Globe and Mail
about the VanderMeer/C./G.H. situation, including extensive quotes from
Sheriff (to whom Moon had been directed by VanderMeer).

368 Chronology

THE EVENTS OF 1986

January 1986 — Three new members of the Board were appointed by the
new provincial government: Hanrahan, Keighan and Taylor. Dickson and
Saracino were the regional representatives. Dickson was elected chairman
and Taylor vice-chairman.

January 20, 1986 — Onich requested a meeting with Joyce and informed
him that VanderMeer was not happy that the OPP were unlikely to lay
charges, and that VanderMeer intended to embark on "Plan C". Joyce
recorded in his notes: "Onich does not know for sure what Plan C is, but
suspects it may be a move to get an public inquiry into the Niagara
Regional Police." -

Spring 1986 — The OPP concluded their various investigations of the
NRPF. Their reports did not come out until much later in the year.

March 10, 1986 — Gayder met with Shoveller and Gittings about the use
of police cars by Inspectors. His notes record: "Not to be taken home but
used only between station and station."

Spring 1986 — Mrs. Taylor spoke with a number of members of the com-
munity about the Force. In March or April she spoke with lawyer William
Reed, who told her about a problem with "cliques" in the Force — the
Harris clique, which he identified as including Shoveller, Moody, Williams
and Leigh, and the Gayder clique, which he identified as including
Parkhouse, Gittings and Swanwick.

Spring 1986 - Mrs. Taylor was spoken to by Chief Gayder in regard to a
meeting she had had with an officer (Jacklyn Davey). He advised her she
was not to meet with officers without his prior approval.

May 5, 1986 — Gayder met with Moody and Parkhouse about the Force be-
ing under strength between hiring periods. He recorded in his notes: "Hiring
of 3 officers for 26th May from old list — next 3 in line — ... — OK." This
was approved by the Board.

Spring of 1986 — The storage area of Mrs. Parnell (Gayder' s secretary) re-
ceived new shelving. When this occurred the contents of the area were
moved by John Rhodes to closet 374. The items moved included boxes of
weapons. Mrs. Hockey, another secretary, was present for the move.

Chronology 369

Spring or summer of 1986 — Carol Berry, the sister of John Rhodes, told
VanderMeer about the guns that her brother had moved.

Late spring or early summer 1986 — Sergeant Jim Baskerville gave Mrs.
Taylor a tour of the Court facility. Thereafter, they continued to have "quite
a few" meetings throughout 1986.

May, 1986 — An inspector was charged with discreditable conduct under
the Police Act. He took early retirement. The matter received considerable
press attention.

About June, 1986 — Mrs. Taylor received copies of Gayder's gun registra-
tion slips from Mai Woodhouse.

June 1986 — Another controversy about the Force was aired in the press.
It was alleged that Force officers were giving unfair advantage to certain
towing operators when calling tow trucks to police situations.

June 10, 1986 — St. Catharines coroner David Lorenzen testified that some
officers in the NRPF were selling guns seized in suicide investigations for
personal profit. The local media gave prominence to this allegation. The
Standard ran at least three articles on the subject. The Force Complaints
Unit tried to investigate this allegation, but had nothing to go on because
Lorenzen refused to be interviewed by them, resulting in the investigation
being discontinued.

June 13, 1986 — Gayder met with Mrs. Taylor and alleged that she was
causing morale problems by meeting officers without his permission and
embarrassing him by calling other police departments to check what he was
telling her.

July 10, 1986 — Mrs. Taylor asked Gayder if the investigation into the
Lorenzen matter could be reopened. Gayder indicated he would check with
the Crown and report to the Board. The next day Mrs. Taylor was inter-
viewed on CBC radio and indicated she was asking the investigation be
reopened.

July 14, 1986 — Mrs. Taylor inquired of Gayder concerning the OPC report.
During this meeting Gayder records that he "also told her of morale of
Force and Board because of her talking to the press." Gayder gave her a
copy of the OPC report.

370 Chronology

August 6, 1986 — The Standard published an article by Michael Clarkson
alleging rampant nepotism in the NRPF, claiming 27 per cent of Force
members were related. At this time the Force was in the middle of its
semi-annual hiring process. Five hundred and fifty applicants had undergone
testing in April and May, 1986. The top 38 were scheduled to be inter-
viewed by a selection board in the week of August 18 to 25. Among these
was Gayder's son John. The Board arranged to have the interviews ob-
served by Hanrahan, who later told the Board that the interviews "were
conducted fairly and honestly and that there was no nepotism whatsoever."

August 7, 1986 — Local alderman Mai Woodhouse, who was not then a
member of the Board, presented a notice of motion to regional council
calling for a public. inquiry into the NRPF. The incidents cited by the press
in support of this call were the McAuliffe wiretap allegations, the Stan-
dard's nepotism allegations, the suspended Inspector matter, the towing
controversy and the "Lorenzen" gun allegations.

August 29, 1986 — Woodhouse circulated a package of materials in support
of his motion for an inquiry. Mrs. Taylor supplied Woodhouse with a copy
of the summary of the 1984 OPC investigation, which went into this pack-
age. Among other material in the package were the Moon articles about
VanderMeer, C. and G.H. The motion was defeated by regional council.

Summer 1986 — Mrs. Taylor initiated a proposal with Gladys Huffman and
Wilbur Dick to go to the Solicitor General about the Force. When Wood-
house's motion for an inquiry failed, they "put that on hold."

Late August, 1986 — The NRPA made an official complaint concerning
Mrs. Taylor meeting with police officers without going through the Chiefs
office. Gayder went to the chairman of the board (Dickson). Dickson spoke
with Mrs. Taylor and contacted the OPC and asked them to send a repre-
sentative over to the next Board meeting to outline the duties and re-
sponsibilities of police commissioners.

September 11, 1986 — The next Board meeting took place, including the
following events:

- After the July CBC broadcast about the "Lorenzen" allegations,
Gayder had had Staff Sergeant NichoUs audit all homicide and
suicide guns coming into the Force's possession from January 1,
1983 to June 30, 1986. NichoUs did such an audit and found all such

Chronology 371

guns fully accounted for. His report was submitted to the Board on
September 11, 1986.

- Gayder had also had the Personnel Unit conduct their own analysis
of family relationships on the Force in consequence of the Stan-
dard's August nepotism article. This report, which showed different
statistics than those claimed by the Standard, was also provided to
the Board on September 1 1 . The Board decided to create a "Mon-
itoring Committee" to review the operation of the Force's hiring
procedures.

- At this same meeting the Board made its hiring decisions based on
the latest Selection Board's report. Gayder' s son, John, was ranked
as an acceptable alternate, but was not hired at that time.

- John McBeth and Stan Raike of the OPC attended in response to
Dickson's request. During a question and answer portion of this
meeting, McBeth made some comment about Board members who
did not comply with the guidelines perhaps not being reappointed.
Mrs. Taylor, whose conduct was at least impliedly being criticized,
took this personally.

Early fall 1986 — Mrs. Taylor began having periodic discussions with
Deputy Shoveller.

Early September, 1986 — Mrs. Taylor met Baskerville, and she perceived
that he "told her everything" about a number of specific allegations of
wrongdoing in the Force. Gayder, guns and DeMarco were among the alle-
gations mentioned.

September 17, 1986 to mid-October — A sensitive investigation regarding
"Officer X" was conducted. VanderMeer was actively involved. Deputy
Kelly's notes from the time record, "Never in all my years in GIB have I
seen a case cause such hard feelings in an office before."

September 29 and October 2, 1986 - Mrs. Taylor accompanied P.C. Gill
during his shifts in a cruiser. From their conversations Mrs. Taylor gained
the impression that she was being warned she was in danger.

October 1, 1986 — Deputies Shoveller and Parkhouse traded positions so
that Shoveller became responsible for Administration and Parkhouse for
Operations.

372 Chronology

October 14, 1986 — Mrs. Taylor approached William Reed (a lawyer who
had given her general background about the Force in the spring) about her
increasing concerns. Reed arranged for her to meet VanderMeer on Friday
October 17. Mrs. Taylor related to him the allegations she was receiving
about the Force and about her own safety. Mrs. Taylor was looking for
someone to investigate these allegations.

October 19, 1986 — Mrs. Taylor met VanderMeer again, this time at her
home. VanderMeer showed particular interest in the gun allegations. George
Onich joined them and indicated he had personal knowledge of at least one
gun having gone astray. By the end of the meeting Mrs. Taylor had the
impression VanderMeer was going to investigate her information.

Balance of 1986 — Mrs. Taylor and VanderMeer continued to meet at her
home and "share information," perhaps on a bi-weekly basis. VanderMeer
gave her information about investigations he had been involved in; she
shared with him information that she was receiving from other officers and
from people in the community.

Sometime in October, 1986 — VanderMeer, accompanied by Onich, ap-
proached Peter Kelly concerning the possible existence of a closet con-
taining seized guns in the Chief's area of the building. VanderMeer ex-
pressed the belief that they may be stolen from the department, and asked
about approaching a Justice of the Peace.

October 22, 1986 — Mrs. Taylor met McAuliffe in Toronto. Their dis-
cussions included Gayder and guns, the merits of Shoveller, Teggin's in-
vestigation of Gayder, the McBeth incident and the OPP wiretap invest-
igation.

October 22, 1986 — A complaint was received from Mrs. Ellis, the es-
tranged wife of Reg Ellis, the Force mechanic. Mrs. Ellis spoke with Mrs.
Parnell and threatened that if her complaints about her ex-husband were not
handled to her satisfaction she would go to the media with the names or
licence numbers of officers who were getting their cars fixed by Ellis at the
Force garage. Mrs. Parnell relayed this complaint and threat to Chief
Gayder at his morning meeting with Deputies Parkhouse and Shoveller, and
the matter was discussed by them. Gayder assigned the matter to the Com-
plaints Unit to be investigated.

October 30, 1986 — Shoveller received a report from Locke about private
repairs being conducted at the Force garage. Shoveller also spoke with

Chronology 373

Locke about a paint job Parnell (Gayder's secretary) had received to her
car. About a week to 10 days later Locke told Shoveller that he had spoken
with Ellis, who had explained the transaction and obtained a copy of the
invoice. Shoveller asked for the invoice and Locke had it hand-delivered to
him.

Late October, 1986 — Mrs. Taylor met with Jim Bradley (MPP) and told
him she didn't know where to turn because she was getting serious alle-
gations about the Force. Bradley agreed to attempt to set up a meeting for
her with the Solicitor General.

Late October or early November, 1986 — Mrs. Taylor's husband (a doc-
tor) convinced her to see one of his patients. By coincidence this patient
was Pinnochio, Baskerville's prime informant. Mrs. Taylor met him in the
hospital and listened to his allegations.

Late October or early November, 1986 — VanderMeer discussed with
Mrs. Taylor a concern about inspectors being given police cruisers for per-
sonal use.

November 2, 1986 — Mrs. Taylor met with John Crossingham, a neighbour
who was a lawyer. She discussed with him a number of her concerns about
Gayder. She was prepared to confront Gayder in public, with or without the
support of the other Board members. Her notes state: — "support or NO —
does it really matter — the media will be there." Mrs. Taylor also discussed
these issues with VanderMeer that day.

November 6, 1986 — At a Board meeting Mrs. Taylor challenged Gayder
about the use by inspectors of police cruisers; Gayder complained about
Mrs. Taylor going behind his back to gather information about Force type-
writers.

November 7, 1986 — St. Catharines GIB Inspector Peter Kelly was trans-
ferred to Niagara Falls as part of a routine transfer of 14 different officers.
VanderMeer and others passed on to Kelly a rumour that this transfer was
caused by Mrs. Parnell, who was allegedly upset about the "Officer X" in-
vestigation. There is no substantiation to this rumour.

November, 1986 — Kelly's replacement in charge of St. Catharines GIB
was Bruce Chambers. VanderMeer, who had had an ongoing dispute with
Chambers for some years, was unhappy about this and submitted a memo-
randum asking for a transfer. The memo was severely critical of Chambers;

374 Ch'-onology

VanderMeer circulated it within the unit. VanderMeer was persuaded by
Superintendent Leigh to withdraw his request; subsequently all copies of
this memo disappeared.

November 16, 1986 — Mrs. Taylor made a note about her concern that her
phone was being tapped: " — phones — tapped? — last month — clicking
noises on the line — my phone and Mel's — strange reaction." She testified
that "Mel" was Mai Woodhouse.

Approximately mid-November, 1986 — Pinnochio had told Mrs. Taylor
that he intended to go to the media and expose all his information. Mrs.
Taylor set up a second meeting in the hospital with Pinnochio, herself and
Michael Clarkson from the Standard.

Approximately late November, 1986 — Mrs. Taylor met again with Pinn-
ochio, this time with VanderMeer. VanderMeer suggested having Pinnochio
meet Peter Moon.

December 4, 1986 — The OPP wiretap report was provided to the Chief and
the Board. The OPP reported that the NRPF had not illegally tapped De-
Marco's telephone and that the documents on which this allegation was
based were forgeries. A more general allegation of widespread illegal
wiretaps was also rejected — the NRPF had obtained 37 DNRs without a
search warrant, which was legal at the time. The report was not made
public, but a five-page press release was issued by the Solicitor General
summarizing the findings, and the Board issued a press release agreeing
with it.

December 4, 1986 — Gayder requested the Board to do its periodic audit
of the Special Account. This was a confidential Force account maintained
by Gayder and used principally for informers' fees. The money in the ac-
count came largely from the auctioning of unclaimed property, such as
stolen bicycles. The Board passed an "Order" at its meeting that day that
the audit be conducted by Mr. Dickson and Mrs. Taylor on December 1 1.
Mrs. Taylor later cancelled this appointment and did not reschedule it.

Early December, 1986 — At the Force Christmas party VanderMeer intro-
duced Mrs. Taylor to Stephen Sherriff There was some general discussion
about allegations or concerns relating to the Force. They agreed to meet to
discuss these matters.

Chronology 375

Early December, 1986 — Shoveller spoke with VanderMeer about private
repairs at 1 1 Neilson Street and asked him to investigate.

Mid-December, 1986 — There was a second meeting of VanderMeer, Pinn-
ochio and Mrs. Taylor.

December 22, 1986 — The Monitoring Committee met for the fifth time.
This was the first Monitoring Committee meeting that Gayder had attended.
At this time a new selection process was well advanced and interviews were
about to take place. The question of what should happen to "alternates"
from the previous hiring board in the current selection process was raised
at this meeting. The discussion became "heated" because Gayder' s son was
one of the alternates in question; he left the room for much of the debate.
A compromise was eventually reached whereby the previous alternates
would not have to be retested; their test marks would stand and they would
be interviewed if they met the new cutoff mark. Gayder was out of the
room for the discussion of cutoff marks and misunderstood this com-
promise to mean that all previous alternates should be re-interviewed.

December 23, 1986 — Gayder appointed Parkhouse, a long time friend of
his family, to be the chairman of the next selection board, and directed him
to include all the previous alternates for interviews.

December 23, 1986 to January 4, 1987 inclusive — Shoveller went on
holidays.

December 24, 1986 — An incident occurred on a bus between Pinnochio
and D.R. Pinnochio was of the view that his life had been threatened. He
called the police. He then telephoned Mrs. Taylor and complained that the
police had not responded properiy to his call. Mrs. Taylor called Staff
Sergeant Hill, the senior officer on duty, and left him with the impression
that she wanted the matter investigated forthwith. Mrs. Taylor "was in
contact with Sergeant VanderMeer frequently" during the Christmas holiday
season over this incident, and also discussed it on more than one occasion
with Moody.

EARLY 1987

January 5, 1987 — Shoveller returned from vacation and raised a concern
that two of the previous alternates who were scheduled to be re-interviewed
had not made the cutoff mark. Gayder did not agree with Shoveller's under-
standing of what had happened at the Monitoring committee. Various phone

i76 Chronology

calls could not resolve the issue. There was no suggestion that the process
should be stopped.

January 7, 1987 — Shoveller met with VanderMeer concerning his invest-
igation of Mrs. Pamell. They discussed the possibility that her paint job
might have been paid for out of Force resources. VanderMeer's notes show
Shoveller expressing the opinion that the paint job must have been
authorized by Gayder — "if criminal wants charges laid."

Early January, 1987 — The meetings which Mrs. Taylor was having with
Shoveller started to increase. She was also having more conversations with
VanderMeer and examining her position under the Police Act.

January 8, 1987 — Mrs. Taylor was elected chairman of the Board of
Commissioners of Police.

January 8, 1987 — That evening VanderMeer took Mrs. Taylor to meet
with Stephen Sherriff. VanderMeer testified that he set up this meeting
because Mrs. Taylor had read the Moon article, expressed interest and, "I
told her that if she wanted to hear about it she could hear it from the
horse's mouth." The main discussion was about Sheriffs concerns on the
subject of G.H., C, Walsh and the Vino investigation. There was also some
discussion as to whether what Mrs. Taylor viewed as Gayder's attempts to
have his son hired was "corrupt practice." Mrs. Taylor's notes of the
discussion suggest that she was looking for other incidents of impropriety
involving Gayder — and that she would speak to Shoveller in that regard.
The notes conclude as follows: " — FEEL STYMIED — need help — 'I
turned to media as never before...'."

January 9, 1987 — Shoveller and VanderMeer met again concerning 1 1
Neilson Street and Mrs. Parnell. At this time Shoveller provided Van-
derMeer with a copy of the invoice from the garage for this work. The
suspicion of a possible fraud was still present. VanderMeer learned for the
first time about the Special Account, which was discussed as a possible
source of the funds. The account number and bank information for this ac-
count are recorded on an undated page at the back of his January, 1987
duty book, along with Mrs. Parnell's address.

January 10, 1987 — VanderMeer sent Shoveller a memo entitled "Possible
Misuse of N.R.P.F. Funds" concerning his investigation of the Parnell paint
job.

Chronology 377

January 5-13, 1987 — The hiring panel of Parkhouse, Gittings and Moody
interviewed candidates. Mrs. Taylor observed.

Early January, 1987 — Shortly after Mrs. Taylor was appointed chairman,
VanderMeer arranged for Mrs. Taylor to meet Peter Moon. Mrs. Taylor ex-
pressed the concern that Gayder might be a criminal, particularly with
respect to guns. Moon testified: "And she didn't want him to be Chief of
Police. Specifically why, at this stage, I can't recall, but I have a strong
recollection that she didn't want Chief Gayder there, and she didn't feel that
he was an appropriate Chief because of his involvement with weapons and
that he wasn't necessarily the administrator that she wanted in charge of the
force."

January 13, 1987 — Gayder received a telephone call from the Royal Bank
concerning VanderMeer's "strictly secret" investigation of Parnell. Gayder
knew nothing about this and, instead of going through the chain of com-
mand, he spoke directly with Parnell to find out what she knew.

January 15, 1987 — The Board met and considered the recommendations
of the first January Selection Board. There was considerable confusion as
to what had been discussed at the Monitoring Committee meeting of De-
cember 22, how the candidates were supposed to have been selected for in-
terviews, and whether anything had even been decided at that meeting. Bob
Hanrahan was absent, and these questions were deferred until he could be
present.

January 15, 1987 — Later that day Mrs. Taylor met Ken Keyes, then the
Solicitor General. She spoke with him about the information she had been
receiving and her thoughts on how to act, ranging from discussions with
Shoveller about developing Police Act charges to why she felt she could not
go to the Board because, "I concluded that they could not be trusted with
this information at this point," nor could she go to the Chief because "he
had lied to me."

January 16, 1987 — At the morning meeting Gayder asked Shoveller and
Parkhouse if they had any knowledge of VanderMeer's "secret" internal in-
vestigation of Mrs. Parnell. Both denied it. At that same meeting Gayder,
Shoveller and Parkhouse discussed the problems between VanderMeer and
Chambers. On Parkhouse' s recommendation they decided to transfer Van-
derMeer to a different location.

378 Chronology

January 20, 1987 — Gayder on behalf of Mrs. Parnell filed a formal com-
plaint against VanderMeer concerning his inquiries on her bank account.
Gayder ordered Marriott and McGloin to investigate what VanderMeer' s
"secret" investigation was about. They interviewed VanderMeer and he told
them Shoveller was involved.

January 20, 1987 — There was a full Board meeting to consider the hiring
issues raised on the 15th. There was further discussion and confusion as to
what had happened on December 22. The Board eventually decided to hold
a second January selection process.

January 21, 1987 — Mrs. Taylor made notes of things to discuss with Van-
derMeer, \nc\ud'\ng Police Act chsiTges against Gayder. VanderMeer advised
her to seek legal counsel and have Gayder charged.

January 21, 1987 — Shoveller was interviewed by Marriott and McGloin
concerning the VanderMeer investigation of Parnell. The interview shows
a distinct problem between Shoveller and Gayder.

January 23, 1987 — Gayder delivered to Shoveller a memo requesting a
report on the VanderMeer investigation of Parnell.

January 26, 1987 — Gayder spoke with Mrs. Taylor about the meetings she
was having with Shoveller. He then spoke with Shoveller, who refused to
discontinue the meetings unless he was directly ordered not to speak with
her.

Late January, 1987 — Moon met Mrs. Taylor, VanderMeer and Pinnochio
at the Holiday Inn. Pinnochio recounted various vague allegations against
the NRPF. Both Moon and VanderMeer were not impressed with Pinnochio.

January 26-27, 1987 — The second Selection Board of Moody, Gittings and
Swanwick sat, with Mrs. Taylor as an observer. By memorandum dated
January 27, they recommended hiring the same five candidates as pre-
viously, including Gayder's son.

January 27, 1987 — Mrs. Taylor spoke with John Crossingham about pos-
sible charges against Gayder. Her notes include reference to "what did
Waterloo do wrong", showing a clear intention to get rid of Gayder.

Chronology 379

January 27, 1987 — Joe Newburgh met with Shoveller and informed him
of his suspicions that his telephone had been tapped. Shoveller asked him
to report this to Mrs. Taylor, and arranged for them to meet.

January 28, 1987 — There was a Board meeting to discuss the recom-
mendations of the second hiring panel. The meeting became heated. The
first time Gayder is recorded as trying to speak to the point, Mrs. Taylor
told him to "shut up." The Board rejected the Selection Board's
recommendations and hired no one.

January 28, 1987 — Gayder then tried to see Mrs. Taylor on an urgent
basis. She told him she was "tied up" and "couldn't meet today." Instead
she met with Joe Newburgh and discussed his wiretapping suspicions.

January 28, 1987 — That afternoon Ted Johnson expressed concern to Gay-
der about Mrs. Taylor's communications with officers, especially the Staff
Sergeant Hill incident the previous Christmas. Gayder asked for an
investigation.

January 28, 1987 — That same day Hanrahan asked Wilcox to prepare a
"Draft Unofficial Minutes (Addendum)" relating to the December 22 Mon-
itoring Committee meeting. This was the first draft of any document that
made reference to the discussion of the alternates at that meeting. It showed
that there had been no motions to come out of the meeting.

January 29, 1987 — Mrs. Taylor met Gayder in the morning. They had fur-
ther disagreements, and Gayder requested a special Board meeting to "clear
the air."

January 29, 1987 — Later that day Gayder telephoned Raike at the OPC
concerning his problems with Mrs. Taylor. A meeting was set up for the
following week. Mrs. Taylor was also making phone calls — looking for a
lawyer to assist her in charging Gayder. That evening she called Vander-
Meer, told him the hiring matter was coming to a head and invited Vander-
Meer to a meeting the next day.

January 30, 1987 — In the morning Shoveller met with Mrs. Taylor and
VanderMeer in Mrs. Taylor's home. During the course of this meeting Mrs.
Taylor informed Shoveller that she was considering laying Police Act
charges against Gayder relating to the recent hiring events.

380 Chronology

January 30, 1987 — Later that day Gayder received a memo from Shoveller
concerning the VanderMeer investigation of Parnell. The memo was less
than respectful.

January 31, 1987 — Mrs. Taylor met with lawyers concerning hiring
charges against Gayder. Mrs. Taylor mentioned concerns about Gayder that
included weapons and the special fund.

February 1, 1987 — In the morning Mrs. Taylor and VanderMeer met with
Jim Bradley, the local MPP. Mrs. Taylor informed Bradley that she had de-
cided to charge Gayder.

February 1, 1987 — That afternoon VanderMeer met Hanrahan at a social
function and told him that Mrs. Taylor intended to charge Gayder. Han-
rahan was surprised and felt that "this was out of the blue to me."

February 3, 1987 — Gayder met with Schultz of the OPC concerning his
problems with Mrs. Taylor, the hiring situation and the Shoveller-
VanderMeer investigation. The possibility of a hearing concerning Mrs.
Taylor's actions was discussed. The following day Schultz telephoned
Gayder and asked him to inform the Board that he would be coming to see
them by the end of March.

February 2, 3 and 4, 1987 — Mrs. Taylor prepared for laying charges
against Gayder at the coming meeting. The charges were typed up in ad-
vance of the meeting. She did not inform other Board members of what she
was planning nor consult them for advice on the charges. Dickson was ab-
sent on holidays, but she did not consider delaying the matter until his
return.

February 4, 1987 — A "Draft Unofficial Minutes (Addendum)" for the
December 22 Monitoring Committee meeting was circulated by Hanrahan.

February 5, 1987 — The Board met and Gayder presented his position
about the hiring situation. The Board did not question him, but withdrew
and met in private with Dunlop, the lawyer Mrs. Taylor had brought. Mrs.
Taylor informed the Board that she was going to charge Gayder. Dunlop
advised the Board that if Gayder was charged he should be suspended. The
other Board members were taken by surprise, but agreed to suspend Gayder
given the fait accompli of the charges. The charges all related to what had
allegedly taken place at the December 22 Monitoring Committee meeting
(a subject which the Board itself had been unable to agree on ever since).

Chronology 381

Gayder was summarily suspended and removed from the building. Shoveller
was appointed Acting Chief. Mrs. Taylor had prepared a press release in
advance and immediately issued it.

THE EVENTS OF FEBRUARY TO OCTOBER, 1987 -
THE HT

February 6, 1987 — Mrs. Taylor made notes about placing VanderMeer's
recent transfer on the agenda for the next Board meeting, and on February
7 the Standard published an article entitled "Taylor To Probe Supercop
Transfer." Mrs. Taylor is quoted at length as wanting to question the trans-
fer.

February 6-9, 1987 — Mrs. Taylor also made notes about who Shoveller
should assign to the internal investigation which was being contemplated:
"A/CHIEF — must assign officers to — must be people he can trust and the
Commission can trust."

February 9, 1987 — Taylor, Shoveller, Keighan and Saracino met with
Keyes (Solicitor General), Takach (Deputy Solicitor General) and McBeth
(OPC). They discussed the charges against Gayder and the possibility of
politicians calling for a public inquiry. Shoveller wanted to conduct an
internal investigation, and made the commitment that if Mrs. Taylor were
to provide the information that she had, as well as the sources of that in-
formation, that those matters would be fully investigated, and should there
be evidence of criminal wrongdoing, that evidence would be placed before
a Crown counsel prior to charges being preferred.

February 10, 1987 — The minutes of the Monitoring Committee meeting
(concerning which Gayder had been charged) were revised.

February 12, 1987 — Shoveller asked Moody to head up the internal invest-
igation which was being proposed.

February 12, 1987 — The first full Board meeting since the suspension of
Gayder took place. Earlier minutes on subjects relevant to Gayder were
edited. The Board discussed three separate items about VanderMeer at this
meeting. At Shoveller's request, they ordered that the "Special Account" be
audited. They contacted a forensic accountant for this job.

382 Chronology

February 15 or 16, 1987 — Mrs. Taylor made a note about things to do.
One item was: "MOODY — get moving on team."

February 18, 1987 — The Internal Investigation Team (IIT) commenced.
VanderMeer was appointed to the team at Shoveller's request, who in turn
had made this request in part because of VanderMeer' s relationship with
Mrs. Taylor. Joe Newburgh was appointed by Moody. Moody's secretary
Billie Hockey was also ex-officio part of the team.

February 18, 1987 — That afternoon Newburgh and VanderMeer met with
Shoveller, Mrs. Taylor and Bill Dunlop (the Board's lawyer on the Gayder
charges). Newburgh re-drafted the charges against Gayder. The Special Ac-
count was also discussed.

February 18, 1987 — That evening VanderMeer took Newburgh to meet
Sherriff at his home. They discussed Sherriffs allegations about G.H. and
Walsh, which Newburgh did not credit.

February 19, 1987 — In the morning VanderMeer and Newburgh received
information about the Special Account and the moving of guns into a closet
near the chief's office. Later they met with Don Holmes, the forensic ac-
countant, about the Special Account. Later that day Holmes was retained by
the Board to do an "investigation" of the Special Account.

February 19, 1987 — In the afternoon there was a meeting of Shoveller,
Moody, VanderMeer and Newburgh. VanderMeer raised the topic of the
chiefs closet and the suspicion that there were a lot of guns in it. Shoveller
knew he could get a key and open the closet, but did not want to do so at
that time.

February 20, 1987 — VanderMeer and Newburgh met Mrs. Taylor and of-
ficially received her allegations for investigation. Later they received
information from Baskerville.

February 21, 1987 — VanderMeer received from Mrs. Taylor copies of
Gayder's gun permits.

February 23, 1987 — Moody, Newburgh and VanderMeer developed a list
of priorities for their investigation: complaint statistics; special fund; supply
irregularities; firearms.

Chronology 383

February 23, 1987 — That same Monday afternoon Moody slipped the lock
of closet 374. Shoveller told him to lock it up again, which he did. Shov-
eller had Turnbull already doing an audit of Gayder's personal property, and
instructed him to include the closet in his audit.

February 24, 1987 - Closet 374 was "officially" opened by Turnbull in the
course of his audit. Soon after VanderMeer and Newburgh interviewed Ser-
geant Pay about the weapons and their possible use in a museum.

February 24, 1987 — Dunlop, the Board's lawyer, spoke on the telephone
with Gayder's lawyer. Dunlop stated there was an on-going investigation
into a host of things about Gayder, including allegations of Gayder inter-
fering with VanderMeer' s "authorized investigation which concerned funds
from the sale of unclaimed bicycles" [the Special Account]. Dunlop further
stated "that there is no way that the Board would continue to have Gayder
carry on as the Chief of Police and that even if the Board was unsuccessful
in its charges against Gayder, it would not permit him to return to active
duty." The Syd Brown case in Waterloo was referred to.

February 25, 1987 — The NRPA distributed a notice to all of its members,
providing advice in the event they were interviewed by members of the IIT.
The Senior Officers Association also circulated this notice to its members.

February 25, 1987 — Mrs. Taylor recorded in a letter later that year that
VanderMeer had told her that by this date he had reasonable and probable
grounds to believe Gayder had committed criminal offences.

February 26, 1987 — P.C. George Onich was assigned as an identification
officer with the IIT.

February 27, 1987 — VanderMeer was given instructions to work the week-
end if required to put together two or three charges regarding property
seized.

February 28/March 1, 1987 — VanderMeer worked over the weekend in
preparation of a Police Act charge brief against Chief Gayder. One of the
witnesses interviewed that weekend was Inspector Stevens, who testified
that VanderMeer appeared to have already made his mind up that Gayder
was guilty by that time.

March 3, 1987 — There was a meeting of the IIT, Shoveller, Moody,
Dunlop, and Mrs. Taylor regarding the nine charges proposed in the new

384 Chronology

Police Act brief. Dunlop telephoned Gayder's lawyer and informed him of
these further charges.

March 4, 1987 — Gayder toolc early retirement.

March 5, 1987 — In the morning Moody, Newburgh and VanderMeer met.
"Next target should be Supply & Automobile repairs and purchases."

March 6, 1987 — Mrs. Taylor, Shoveller and Moody brought local MPP
Mel Swart into room 230 to view the weapons which had been seized from
closet 374. Later the same day Moon of the Globe and Mail attended room
230 at VanderMeer's invitation and viewed the guns. Moon did an article
which appeared in the Globe and Mail on March 9.

March 6, 1987 — The Spectator wrote to Shoveller, forwarding copies of
Gayder's gun registrations. The Spectator had received these anonymously
in the mail. The letter states in part "Denise Taylor urged the Spectator to
forward these to you in connection with an ongoing internal police invest-
igation."

March 8, 1987 — The Board issued a press release about the IIT, high-
lighting the finding of the weapons and suggesting a link between Gayder
and the guns. This was followed by a series of articles in different news-
papers, under headlines such as "Secret arsenal seized," "Niagara police
probe uncovers weapons cache at headquarters" and "WEAPONS SEIZED
FROM COPS Major internal police investigation is on."

March 16, 1987 — Constable Lee Rattray was assigned to the IIT.

March 16, 1987 - Shoveller received from McMaster of the OPP the OPP
Operation Vino report. The report found wrongdoing only relating to Typer
providing an address based on an unlisted number to C. [Police Act charges
were later laid on this, but withdrawn due to lack of evidence.] While many
other allegations were discussed in the report, none was found to be
substantiated.

March 16, 1987 — VanderMeer, Newburgh, Shoveller and Moody met and
again discussed priorities. Shoveller placed the "theft" of guns from
Welland, and the investigation into Neilson Street, as priorities.

Chronology 385

March 17, 1987 — The OPP "Operation Vino" report was provided to the
IIT for any follow-up they considered necessary as part of their investi-
gation.

March 26, 1987 — Newburgh and Rattray travelled to Brampton to speak
with OPP Inspector Wilhelm regarding the Vino report. They formed the
view that it was not worth pursuing.

April 16, 1987 — The report of Holmes concerning the Special Account was
presented to the Board. Holmes found no improprieties in the disbursements
from the account, although he recommended a change in the guidelines for
same; thereafter the IIT did no further investigation on this subject.

April 23, 1987 — Shoveller met with the IIT. He instructed that weapons
and supply were to be their primary goals, with any discovered crime being
investigated simultaneously.

April 25, 1987 — VanderMeer and Rattray interviewed Reg Ellis, the Force
mechanic. Ellis provided information in connection with a number of in-
stances of private use of the Force garage, including the installation of tires
on Mrs. Parnell's car.

April 26, 1987 — VanderMeer obtained a search warrant and, accompanied
by Newburgh and Rattray, seized the tires from Mrs. Parnell's car.

April 27, 1987 — Sergeant Gerry Melinko was unofficially assigned to the
IIT.

April 28, 1987 — Newburgh submitted a report to Moody indicating a belief
that Criminal Code offences at Neilson Street had been uncovered by the
investigation.

April 15 and 22, May 6, 3, 20 and 27 and June 3, 1987 - Various mem-
bers of the IIT attended at the Schenck farm in order to get the licence
numbers of the people Gayder was playing poker with. The main purpose
of this surveillance was to establish who was associating with Gayder. The
trips ended on June 3 when Parkhouse telephoned the Station from the card
game, and asked for a report. Schenck filed a citizen's complaint, which
was dismissed as exonerated when VanderMeer submitted a memorandum
saying that Rattray was "conducting a criminal investigation."

386 Chronology

May 5, 1987 — A meeting of Brady (counsel for the Niagara Region Police
Association), Ted Johnson, and Shoveller. Shoveller was informed that
Brady and Johnson were intending to meet with the Attorney General to ex-
press their concerns about the internal investigation, specifically, the
make-up of the IIT and the question of whether the chairman (Mrs. Taylor)
had been giving directions to members of the Force. Shoveller indicated his
willingness to go with them to the Attorney General, but later changed his
mind.

May 15, 1987 — Brady attended with Johnson and Peter Ruch (president of
the Association) at the Ministry of the Attorney General, where they met
with Hunt, Martin, Wolski, Root and Houlihan. They expressed concern
over the way the internal investigation was proceeding. The Association's
view was that there should be an investigation, but that it would be best if
another Force took it over, in order to conduct it without political ani-
mosities prejudicing the investigation.

May 25, 1987 — Moody and Shoveller met with the same members of the
Attorney General's Ministry. During the discussion Hunt questioned
whether the IIT was a "witch-hunt" and whether it was motivated by
geographic fac-tionalism within the Force. Houlihan (a Crown attorney for
the Niagara Region) raised the suggestion that Shoveller was involved with
Andrew Bell, VanderMeer and Mrs. Taylor in a conspiracy to remove
Gayder from office. Shoveller denied these allegations, and was quite upset
about them.

May 29, 1987 — Shoveller was quoted in the Globe and Mail as follows:
"Asked whether the Force has enough evidence to lay criminal charges, Mr.
Shoveller said: 'If we didn't think so we wouldn't feel the need to prepare
briefs for the Ministry.'"

May 29, 1987 — The NRPA issued a press release expressing grave con-
cerns about the propriety of the internal investigation and suggesting an
independent body take control of the NRPF, and conduct an investigation.

June 1, 1987 — VanderMeer and Newburgh travelled to Ottawa and Peter-
borough to interview Robert and Richard Smith, and John Wolff concerning
the NRPF's gun trades with Albion Arms. On June 3, they met with RCMP
Staff Sergeant Ron Knowles in Ottawa, regarding the gun registration
system.

Chronology 387

June 9, 1987 — Newburgh and VanderMeer had a dispute regarding the pre-
paration of the briefs. VanderMeer submitted his resignation because of it.
He also telephoned Mrs. Taylor about it. The dispute was ultimately re-
solved by Chief Shoveller in favour of VanderMeer, whose version re-
mained in the brief.

June 16, 1987 — Meeting with Hunt, Martin, VanderMeer, Newburgh,
Moody and Shoveller, at which time the first four volumes of the IIT briefs
concerning Gayder were personally delivered to the Attorney General's of-
fice.

June 16 — Newburgh's last working day. He took sick leave from then until
his retirement.

June 22, 1987 — Vol. 5 of the Gayder briefs was approved by Moody and
delivered to the Attorney General's Ministry by courier.

July 6, 1987 — Melinko was officially assigned to the IIT.

July 14, 1987 — Wolski (a lawyer with the Attorney General's office) at-
tended the NRPF headquarters and discussed the case with VanderMeer.

July 23, 1987 — Wolski telephoned VanderMeer about the investigation.

July 29, 1987 — VanderMeer worked on an evidence brief regarding Reg-
inald Ellis. At 2:30 p.m. his notes record: "Meeting with J. Shoveller re
Ellis — told to arrest him." The next morning (July 30) VanderMeer again
reviewed the Ellis evidence with Shoveller. Later that morning, he arrested
and charged Ellis. Routine Order 123/87 was issued that day by Shoveller
terminating Ellis' employment by reason of the charges.

August 11, 1987 — Shoveller introduced the members of the IIT to the
Board at a Board meeting.

August 19, 1987 — VanderMeer met with Wolski; they were later joined by
Shoveller and Moody. The sixth Gayder brief was provided to Wolski. A
brief on Parnell was also provided to Wolski. During this meeting Wolski
raised concerns about the Welland guns. VanderMeer's notes record: "Wel-
land guns can't prove when he registered them. Doesn't think guns in closet
constitute act of theft." Wolski asked for further witnesses to be interviewed
on this subject "to tie down when guns went into Gayder's possession."

388 Chronology

August 20, 1987 — VanderMeer and Wolski started following up on this
together. They met with Inspector Jones of the OPP (Gun Registrar from
1974 to 1978) about the gun registration procedure. They also had a general
discussion regarding the internal investigation.

August 21, 1987 — VanderMeer interviewed former Chief Wilson about the
Welland guns.

August 22, 1987 — VanderMeer commenced an analysis of Part 9 of the
OPC report, regarding Gayder's gun collection. He prepared a chart anal-
yzing all of Gayder's registered guns, his explanations for how he obtained
them and the results of investigation into those explanations. The chart
points out that most of the gun certificates "run in numerical order." "This
would suggest that most of the weapons were issued sequential certificate
numbers by the RCMP when that Force converted from the Fanfold system
in 1967/68 to the Soundex system." VanderMeer reviewed this chart with
Shoveller on August 24.

August 24, 1987 — VanderMeer met Wolski again. They interviewed
Robert Russell of the OPC concerning their prior investigation of Gayder's
guns. Among other things Russell told them that Walsh had placed the
transfer of the Welland guns in 1969.

August 31, 1987 — The Board appointed Shoveller as Chief of the Force.

September 2, 1987 — Moody sent Shoveller a memo regarding the length
of time the Attorney General was taking to provide their opinion with
regards to charges, and suggesting they might proceed to a public inquiry
rather than wait any longer.

September 2, 1987 — Locke's report on Fleet Management was submitted
to Moody who then passed it on to Shoveller. The next day (September 3)
VanderMeer and Melinko submitted a memorandum to Moody regarding
Locke's report to Shoveller. The memo was strongly critical of Locke.

September 2, 1987 — The RCMP responded to some serial number
searches that the IIT had requested. Two serial number matches showed up
on the American National Crime Information Center records of stolen guns:
one from Everett, Washington and one from Sacramento, California. Later
in the day Carol Berry telephoned Washington and California about these
two guns. On September 4, 1987, the Sacramento Police Department mailed

Chronology 389

to Carol Berry a copy of their burglary report concerning the November 26,
1973, theft from one Frank Corson of the "California gun."

September 3, 1987 — Melinko and VanderMeer commenced preparation of
a Managerial Overview, at the request of Shoveller. The report was com-
pleted on September 17, and dealt with nine separate areas ranging from
hiring to the organization of central records. Shoveller provided the
completed report to the Board.

September 14, 1987 — Moody told Shoveller about the California gun.

September 22, 1987 — Melinko and Berry met with Wolski. Moody was
there for part of the conversation. Wolski was particularly interested in the
California gun and told them: "... if you can establish that gun is stolen
from California, then you've got a good case." VanderMeer was told of this
the next day.

September 23, 1987 — Moody sent letters to California and Washington
asking for identification of the guns whose serial numbers matched.
Photographs were enclosed. VanderMeer spent the morning on the Gayder
gun investigation, including discussing the California gun with Melinko.
VanderMeer then telephoned the author of a magazine article about that
model of gun.

September 24, 1987 — VanderMeer received a telephone call from Peter
Shoniker, a lawyer friend, who said he "had been out previous night with
three people from [the Attorney General's Ministry at] 18 King Street, who
told him we were in trouble about charging Gayder."

September 28, 1987 — Shoveller requested an overview of the internal in-
vestigation be prepared, without naming names, for presentation to the
Board. VanderMeer prepared such a report. On October 8, VanderMeer and
Moody met and reviewed a draft of the report. It was later provided to the
Board.

October 1, 1987 — VanderMeer met with Sherriff for about four hours and
went over the Gayder briefs compiled by the IIT.

October 4, 1987 — Shoniker met with VanderMeer and reviewed the Gay-
der briefs.

390 Chronology

October 4, 1987 — Mrs. Taylor did a memorandum to Shoveller concerning
possible steps to be taken, including having VanderMeer charge Gayder
without waiting for the Attorney General's recommendation. She also did
a letter to Hunt setting out a detailed factual history of the IIT's
investigation, describing the situation as a "crisis" and asking for a response
concerning charges. VanderMeer did a memo to Moody dated the same day.
VanderMeer' s memo speculates on reasons why the Attorney General's
Ministry might be deliberately delaying and covering up the Gayder matter.

Early October, 1987 — Moon met with VanderMeer and Mrs. Taylor in
VanderMeer' s basement. VanderMeer and Mrs. Taylor discussed their frus-
tration about the lack of response from the Attorney General's Ministry and
their suspicion that this was caused by Gayder having "political con-
nections" within that Ministry. They discussed the possibility of a public in-
quiry, and asked Moon's assistance in obtaining one.

October 5, 1987 — Berry telephoned Sacramento and was informed that the
previous owner had identified the gun. Melinko called Wolski right away
and managed to contact him in an out-of-town court. Wolski reacted with
interest and asked that the information be sent to him In Toronto. The
material arrived from California the following day (October 6) and was
immediately forwarded to Wolski, under cover of a letter which stated: "It
is abundantly apparent that Mr. Gayder is in possession of stolen property.
This revelation also casts a heavy shadow of suspicion on the remaining
twelve firearms registered to him, along with the numerous other weapons
under his personal control."

October 6, 1987 - The Globe and Mail published an article entitled "Min-
istry Reviewing Firearms Probe". The article stated in part that the Ministry
was "awaiting some last minute information from Niagara Police investi-
gators before making a final decision."

Around October 6, 1987 — Mrs. Taylor and Shoveller met with Hunt. Hunt
indicated he had had some contact with Gayder's lawyer, and suggested
Shoveller call him. Shoveller did so, and was told that Gayder would like
an opportunity to tell his side of the story. No attempt had been made prior
to this to contact Gayder or hear his side of the story.

October 8, 1987 — Melinko interviewed former Deputy Chief Martin Walsh
regarding ex-Chief Gayder's guns. Walsh had not previously been inter-
viewed by the IIT. His interview was not provided to the Attorney
General's Ministry.

Chronology 391

October 15, 1987 — Shoveller and members of the IIT met with Hunt in
order to obtain the opinion of the Attorney General's Ministry concerning
the proposed charges against Gayder. Hunt took them through the charges
and gave the opinion that they should not be laid. He provided them with
a copy of Wolski's memo to him on this subject, which came to the same
conclusion. The discussion between Hunt and Shoveller was heated.

AFTER THE IIT

October 16, 1987 — Shoveller, Mrs. Taylor, Moody and the IIT were all
upset at this recommendation from the Attorney General's Ministry. They
met to discuss what to do. They went over Wolski's memo rebutting it
point by point. The IIT (mostly VanderMeer — with some input from a law-
yer) began preparing a brief summarizing their investigation of Gayder and
criticizing Wolski's opinion. A public inquiry was discussed.

October 22, 1987 — Shoveller presented the Board with the summary brief.
A public inquiry was discussed. At one point one Board member observed:
"we've got our pound of flesh. This Board has got its pound of flesh. Do
we want the whole carcass?" The Board resolved to seek independent legal
advice concerning the conflict between the IIT's views and those of the
Attorney General's Ministry. They retained Shoniker, who had already been
advising VanderMeer.

October 27, 1987 — Shoniker retained three lawyers to provide the Board
with opinions on whether or not Gayder could have been charged. The law-
yers were warned that a public inquiry into Gayder was being contemplated
by the Board. In describing the scope of such a potential inquiry the letter
stated: "... I cannot conceive of a situation wherein the focus of an Inquiry,
should it be ordered, would go beyond an analysis, investigation and eval-
uation of Mr. Gayder's activities...."

October 26, 27, 28 and 29 and November 3, 1987 — VanderMeer partic-
ipated in the briefing of Shoniker and Fedorsen and of the three lawyers
providing opinions.

November 3, 1987 — VanderMeer and Melinko worked on compiling vol.
7 of the Gayder briefs. Work on this multi-volume brief had been com-
menced by Melinko on October 26 and continued until December 1.

392 Chronology

November 4, 1987 — VanderMeer and Melinko interviewed Alexander
Ross. This was the first time Ross had been located.

November 5, 1987 — The Board met to consider the three opinions that
were obtained, and to decide what to do. They resolved to request the Sol-
icitor General to call "a public inquiry into allegations of improprieties
involving Niagara Regional Police Force officers as investigated." Vander-
Meer attended this meeting.

November 8, 1987 — Mrs. Taylor and VanderMeer met with Jim Bradley
(local MPP), to urge upon him the necessity of a public inquiry.

November 13, 1987 — By letter the Solicitor General replied to the Board's
request by cautioning the Board about getting involved in operational mat-
ters, and pointing out that the decision as to whether or not to lay charges
was entirely Shoveller's. The letter concluded by stating that any deter-
mination on holding an inquiry was premature until he had so decided.

November 18, 1987 — The Board issued a press release advising of their
request for a public inquiry, and the Solicitor General's refusal of same, and
of their direction that Chief Shoveller should review the matter and decide
if charges should be laid.

November 23, 1987 — Shoveller formally informed the Board that he had
reconsidered the entire matter and he was not going to lay charges. The
Board then passed a further resolution calling for a public inquiry.

November 24, 1987 - The Globe and Mail published a front-page story by
Peter Moon about the IIT and Gayder's guns based on the summary brief
prepared by VanderMeer for the Board. VanderMeer had released this ma-
terial to Moon because of his belief that a public inquiry was necessary.

November 25, 1987 — Chief Shoveller issued a press release outlining the
past year's events, advising of his decision not to lay charges and criticizing
the leak of information to the Globe and Mail.

November 25, 1987 - In the afternoon the Solicitor General, Joan Smith,
announced in the legislature that a public inquiry would be conducted into
the NRPF as a result of the renewed request for such an inquiry by the
Board.

Chronology 393

December 2, 1987 — Mrs. Taylor and others met first with McAuliffe and
then with the Solicitor General. They discussed the scope and terms of ref-
erence for the inquiry. Both Gayder and the NRPA also sent letters to the
Solicitor General expressing views on what should be included in the terms
of reference.

February 1, 1988 — Sills met Mrs. Taylor and discussed with her some of
his concerns about the Force.

March 25, 1988 — The Order in Council was passed appointing this Com-
mission and setting out the terms of reference.

April 12, 1988 — The preliminary hearing on the charges against Ellis took
place. Ellis was discharged on all counts.

June 27, 1988 — The Commission conducted its first public hearing. Sub-
missions were made by various persons concerning their standing and
funding for the hearings.

Summer and fall of 1988 — Three former members of the IIT (Vander-
Meer, Melinko and Hockey) were assigned to assist the Board's counsel in
their preparations for the hearings of the Commission.

August 18, 1988 — The Board passed a resolution directing its counsel and
the investigators assigned to them to adopt a "proactive approach" to the In-
quiry. They further passed a resolution directing their counsel and counsel
for the Force "to disclose no information, documents, statements and/or in-
terviews to the Colter Inquiry counsel or investigators until such time as
this Board is satisfied through its counsel, that the Colter Inquiry will a) be
full and complete; b) seek and obtain the truth; and c) establish once and
for all the credibility of the Niagara Regional Police Force." Notes from
that meeting indicate that "Proactive is essentially a method by which we
must be resourceful in assembling a body of information and evidence to
the exclusion of the Inquiry Investigators and counsel."

September 6, 1988 — The second day of hearings held by the Commission.
Procedural and evidential matters were addressed, but no evidence was
called. Evidence was scheduled to commence on October 17, 1988.

October 12, 1988 — The Ministry announced what funding it would provide
to parties.

394 Chronology

October 17, 1988 — Submissions were made relating to the funding and the
decision of Gayder's counsel to withdraw. Counsel for the Board opposed
any adjournment and insisted that Gayder proceed unrepresented if
necessary.

Fall of 1988 — Prior to the commencement of the evidence there was con-
siderable political pressure in the Niagara region concerning the cost of this
inquiry. The Chairman of the Regional Council, Mr. Dick, was publicly
calling for the inquiry to be cancelled. He was quoted to that effect in a
newspaper article of October 15, 1988, along with strenuous personal crit-
icism of Mrs. Taylor in connection with the calling of the inquiry. Mrs.
Taylor was quoted in the same article as saying "Unfortunately the regional
chairman doesn't know what the inquiry is all about."

October 20, 1988 — The Toronto Star published a front-page article about
alleged corruption in the NRPF. An unknown informant had provided that
paper with a copy of the confidential OFF report on "Project Vino." Many
of the allegations in that report were quoted in the article, although there is
also some information directly from the informant. The Commission was
unable to ascertain who leaked this document.

November 14, 1988 — The Commission commenced receiving evidence in
public hearings. The evidence proceeded for some two years (with various
interruptions for investigation and scheduling reasons) until November 20,
1990. The hearings received substantial coverage in the local press and were
televised live all day, every day, on the local cable network. Submissions
were held on various interim phases as the evidence progressed.

Mid-April, 1991 — Overall submissions were originally scheduled to be
held. However, a dispute arose concerning the Notice provisions of section
5 (2) of the Public Inquiries Act. On May 15, 1991, all parties exchanged
written notices setting out the substance of any misconduct they may urge
the Commissioner to fmd.

June and July 1991 — Certain parties brought motions relating to the sat-
isfaction of the Notice provisions. Decisions on those motions were ap-
pealed to the Divisional Court. That Court's reasons rejecting the appeals
were issued on March 31, 1992. Three days of further evidence were then
called on May 4, 5 and 7, 1992.

June 5, 1992 — Overall written submissions for all parties were filed.

Chronology 395

June 30, 1992 — Evidence was called in reply to the submissions.
July 15, 1992 — Final reply submissions were filed.

APPENDIX C

PARTICIPANTS GRANTED
STANDING

1. Sergeant John Adams

2. Civilian Carol Berry

3. Mr. Reginald Ellis

4. Ex-Chief James Gayder

5. Civilian Billie Hockey

6. Deputy Chief Peter Kelly

7. Ex-Sergeant Edward Lake

8. Ex-Sergeant Allan Marvin

9. Sergeant Gerald Melinko

10. Staff Sergeant Michael Miljus

11. Staff Superintendent Moody

12. Staff Sergeant Joseph Newburgh

13. Niagara Regional Police Association

14. Niagara Regional Police Force

15. Niagara Regional Police Services Board

16. Constable George Onich

17. Ontario Police Commission

18. Ontario Provincial Police

19. Sergeant Ronald Peressotti

20. Constable Lee Rattray (own counsel)

21. Sergeant Gerald Ryan

22. Chief John Shoveller

23. Chair Denise R. Taylor

24. Sergeant Edward Typer

25. Sergeant Cornells VanderMeer

APPENDIX D

WITNESS LIST

Alexander, Irvine Charles
Allen, Gerald
Allan, Beverley A.
Arcaro, Eugene I.
Barlow, Alan
Barnes, Allan
Baskerville, James F.
Bell, Andrew
Berry, Alan
Berry, Carol M.
Bevan, Vincent Thomas
Booker, Percy Kenneth
Boston, William Thomas
Braun, Jack
Breen, Robin
Bryan, James F.
Chamberlain, Ivan E.
Chambers, Bruce Scott
Chiavarini, Mary
Ciszek, Frederick J.
Cleveland, Rocky
Cole, Herbert
Connors, Dennis
Crossingham, John
Crowe, Patrick
Crown, Raymond J.
D.B.

Davey, Jacklyn H.
Davidson, Kenneth R.
Dawson, Joseph V.
Deluca, Henry David
DeMarco, Mark Tiffany
Dickson, William D.
Dunlop, William D.
Eckhardt, Brian W.
Edwards, William Arthur
Ellis, Reginald Charles
Faraday, Loran
Feilde, Ronald
Feor, Alexander G.
Eraser, Douglas A.
Gayder, James A.
Gill, William C.

Gilligan, Gary

Gittings, David B.

Granton, Cheryl (nee Burnett)

Hamnett, Bernard

Hampson, Paul Martin

Hanrahan, John Robert

Harris, Donald

Harris, Robert A.

Heath, Kenneth Stanley

Herman, Alexander

Hermer, Terrance

Hill, Douglas D.

Hockey, Billie Lee

Holmes, Donald

Holt, James

Horton, Kenneth

Horton, Lawrence Russel

Hyslop, Robert

Inman, James Allan

Johnson, Edward R.

Johnson, James Edward

Johnston, Jean

Joyce, William

Keighan, Robert F.

Kelly, Peter J.

Kennedy, John Alexander

Kisur, Ronald Andrew

Knowles, Ronald C.

Knox, Maxine Ruth

Koczula, Paul P.

Kopinak, John P.

Lahey, Herschel

Lake, Edward

Lamb, Gregory Charles

Lamonte, Norman

Laurie, John

Leonard, Laurie G.

Lewis, Richard

Lightfoot, Ronald J.

Locke, Michael J.

Lorenzen, David Dr.

Maloney, Lionel Gerald

Marriott, Rodney E.

398 Witness List

Marriott, Clayton S.
Marvin, Allan Earl
McAuliffe, Gerald
McGrath, Marie
Mcintosh, Donna Jane
McLaren, Terrence M.
Melinko, Gerald Michael
Miljus, Michael
Mitchell, Kenneth G.
Moody, James L.
Moon, Peter
Murdoch, William
Myers, Lloyd
Nepon, Bruce
Nepon, Gary
Ncsbitt, Brian
Newbold, Raymond
Newburgh, Joseph R.
Newburgh, Carolyn
NichoUs, Gary Edward
Noiles, David W.
O'Neil, Gregory A.
Oneschuk, H. Joy
Onich, George J.
Parkhouse, Frank H.
Parnell, Elizabeth A.
Pay, Douglas R.
Pay, Janice C.
Peressotti, Ronald P.
Pidduck, Keith
Prentice, Thomas H.
Quattrini, Lawrence John
Raike, Stan
Rattray, Lee Frank
Reed, William
Rhodes, John Ian
Richardson, Thomas A.
Roland, Ian Jonathan
Ross, Grant Alexander
Russell, Robert E.
Ryan, Gerald
Sandelli, Ronald
Saracino, Robert
Schcrtzcr, John R.
Schmor, Larry D.
Shelley, Mary

Sherriff, Stephen Edward
Shoveller, John Edward
Sills, John F.
Simms, Brian
Smith, Robert
Smith, Richard
Soley, Earl
Solomon, Larry John
Southall, Wendy Edna
Steele, Donald
Stevens, John V.
Sullivan, Patrick
Swanwick, David M.
Swart, Melvin Leroy
Tardiff, John
Taylor, Denise Rae
Taylor, Sandra Elizabeth
Teggin, Thomas B.
Thompson, Karen
Toderick, Frank
Toth, Joseph Frank
Turner, Harley H.
Typer, Edward J.
Vanderlee, John
VanderMeer, Comelis
Walsh, Martin
Wells, Jim

Wilcox, Isabelle Ross
Wilhelm, Paul Warren
Wilkinson, James Edgar
Wolff, John
Woodhouse, Malcolm
Woodhouse, Derwyn

APPENDIX E

LIST OF EXHIBITS

DATE

FILED BY

EX#

DESCRIPTION

09/6/88

P. Shonikcr

Letter • August 26/88 from Shonikcr
and Fedorsen • re: Conflict of Interest

10/17/88

W.E.C. Colter

Letter • October 12/88 from Solicitor
General

10/17/88

W.E.C. Colter

Letter • October 14/88 • re: Legal Aid
Tariff

10/17/88

I. Roland

Donald Marshall, Jr. • Decision •
May 14/87

10/17/88

F. Fedorsen

Letter • October 13/88 to E. Ratushny
from W.A. Kelly

11/14/88

W.A. Kelly

Procedure N". 16 issued October 20/86 •
Processing found, seized or received
property and money

11/14/88

W.A. Kelly

Routine Order N°. 179/85 • Revised
Distribution

11/14/88

W.A. Kelly

Property Report Form

11/14/88

W.A. Kelly

Bicycle and Tricycle Report Form

11/14/88

W.A. Kelly

Fraudulent Document Report Form

11/14/88

W.A. Kelly

BRIEF • Property System • NRPF Pro-
perty Directives since 1971

11/15/88

W.A. Kelly

Permit to convey firearms (sample)

11/15/88

W.A. Kelly

Firearms Registration Certificate (sam-
ple fanfold)

11/15/88

W.A. Kelly

Gun Registration Certificates for James
A. Gayder N". 1 - 62

11/15/88

P. Shonikcr

Letter • September 4/87 to VanderMeer
from Inspector H. Dick • re: NRPF In-
ternal Inquiry

11/15/88

P. Shonikcr

CPIC message • August 25/87 to Ser-
geant Knowlcs from Sergeant Vander-
Meer

400 List of exhibits

DATE

FILED BY

EX #

DESCRIPTION

11/15/88

F. Fedorsen

Restricted Weapon Registration Cer-
tificate for James Gayder

11/15/88

R. McGee

Transit Slip • September 9/87 to Ser-
geant VanderMeer from Sergeant
Young, FRAS, Ottawa • re: Internal
Investigation

11/15/88

W.A. Kelly

Restricted Weapon Registration Cer-
tificate (screen print-out) •
Certificate N". D-595841

11/16/88

W.A. Kelly

Gayder' s Fanfold

11/16/88

W.A. Kelly

Property Report

11/16/88

W.A. Kelly

Supplementary Report

11/16/88

W.A. Kelly

Auction List

11/16/88

W.A. Kelly

Auction Receipt

11/16/88

W.A. Kelly

1) List for Destruction of Firearms •

2) Memorandum • June 30/88 to J. In-
man, C.A.O., from Staff Sergeant Locke
• re: Destruction of Firearms

11/16/88

W.A. Kelly

Memorandum • March 17/88 to Staff
Sergeant Locke from Deputy Chief
Parkhouse • re: Conversion of Found
Property to Force Assets

11/16/88

W.A. Kelly

Memorandum • November 30/87 to Ac-
ting Deputy Chief Gittings from Acting
Inspector Locke • re: Destruction of
Firearms

11/16/88

W.A. Kelly

Toronto Star article • Oct. 20/88 • page
1 and 2 • Article: "Niagara Regional Po-
lice linked to crime, documents show"

11/17/88

W.A. Kelly

Handgun Inventory Book
• 1980 - 1987 (black book)

11/17/88

W.A. Kelly

Ride/Shot Gun Inventory Book
• 1980 - 1987 (black book)

List of exhibits 401

DATE

FILED BY

EX#

DESCRIPTION

n/17/88

W.A. Kelly

Memorandum • Feb. 27/76 to Deputy
Chief Gayder from Deputy Chief Harris
• re: Storing and Disposal - Found and
Seized Property - Public Auction Sales

11/17/88

W.A. Kelly

11/17/88

W.A. Kelly

1) Letter • May 21/87 • re: Sale of
Restricted Weapons • to Acting Chief
Shoveller from Staff Sergeant Newburgh

2) Letter • June 23/80 • re: Firearms
Registered and Administrative Section •
to RCMP Commissioner from Deputy
Chief Gayder

11/17/88

W.A. Kelly

Internal Inquiry • 1987 • vol. VII •
Section (d) photographs

11/17/88

W.A. Kelly

Inventory of Seized Guns Taken • Fe-
bruary 24/87 (typed list)

01/18/89

R. Collins

35A

Sergeant Pay's hand-written inventory
of Seized Gun List • Feb. 24/87 • (ori-
ginal copy)

11/17/88

W.A. Kelly

Letter and Report • October 6/87 to
Wolski (Ministry of Attorney General)
from Acting Deputy Chief Moody • re:
James Gayder Investigation

11/17/88

W.A. Kelly

Martin Walsh will-say statement taken
October 8/87 by Sergeant Melinko

11/17/88

W.A. Kelly

Frederick Wilson will-say statement
taken August 21/87 by Sergeant Vander-
Meer

11/24/88

P. Shonikcr

Memorandum • Oct. 12/87 to D. Hunt,
Assistant Deputy Attorney General from
W. Wolski, Crown counsel • re: NRPF
Internal Inquiry and Former Chief Gay-
der

1 1/24/88

P. Shoniker

OPC Investigation • Part IX • conducted
by Alexander and Russell

402 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

1 1/24/88

P. Shoniker

Weapons traded to Albion Arms • April
17/80 • Hand-writlcn photocopy and
typed copy

1 1/24/88

P. Shoniker

Oct. 15/87 • Minutes of meeting held
with Attorney General's department and
Internal Investigation Unit

11/24/88

P. Shoniker

William Murdoch will-say statement ta-
ken September 24/87 by Sergeant Van-
derMeer

11/24/88

P. Shoniker

Alexander Ross will-say statement taken
November 4/87 by Sergeant Van-
derMecr and Melinko

11/25/88

P. Shoniker

Letter • June 26/85 to Ministry of Sol-
icitor General from Chief Gayder • re:
Niagara Regional Heritage Museum,
plus 4 memorandums: 1) Memorandum
• September 9/87 to Chief Shoveller
from Deputy Chief Parkhouse • re: Po-
lice Records in Museum and Adminis-
trative Store; • 2) Memorandum • Sep-
tember 9/87 to Sergeant Pay from De-
puty Chief Parkhouse • re: Museum
Areas; • 3) Memorandum • August
31/87 to Acting Deputy Chief Moody
from Sergeant VanderMeer • re: Police
Records in Museum and Administration
Storage; • 4) Memorandum • August
31/87 to Acting Deputy Chief Shoveller
from Deputy Chief Parkhouse • re:
Museum Area

11/25/88

P. Shoniker

3 letters Re: Museum • 1) To Brown,
Ontario Police College from Inspector
Barlow, NRPF • March 20/85; • 2) To
Honourable George Taylor, Solicitor
General from Chief Gayder • January
30/85; • 3) To Kay Jones. Chairman,
Welland Historical Museum from Chief
Gayder • March 18/85

11/25/88

P. Shoniker

Memorandum • July 31/87 to Staff Ser-
geant Pidduck from Sergeant Pay • re:
Police Museum

List of exhibits 403

DATE

FILED HY

EX#

DESCRIPTION

11/25/88

F. Fedorsen

Routine Order N°. 82/87 • Acting Rank
• May 15/87 • by Acting Chief Sho-
veller

11/29/88

W.A. Kelly

49A

Vol. N°. 1 • NRPF Internal Inquiry 1987
• re: James Gayder

11/29/88

W.A. Kelly

49B

Vol. N". 2 • NRPF Internal Inquiry 1987
• re: James Gayder

11/29/88

W.A. Kelly

49C

Vol. N". 3 • NRPF Internal Inquiry 1987
• re: James Gayder

11/29/88

W.A. Kelly

49D

Vol. N". 4 • NRPF Internal Inquiry 1987
• re: James Gayder

11/29/88

W.A. Kelly

49E

Vol. N". 5 • NRPF Internal Inquiry 1987
• re: James Gayder

11/29/88

W.A. Kelly

49F

Vol. N°. 6 • NRPF Internal Inquiry 1987
• re: James Gayder

11/30/88

D. Pickering

50A

Statement • October 26/88 of Denise
Taylor, Chairman

1 1/30/88

W.A. Kelly

50B

1) Letter • November 23/87 to Denise
Taylor from Chief Shoveller • re: In-
ternal Investigation 2) November 25/87
• Press Release of Chief Shoveller

11/30/88

W.A. Kelly

RCMP documentation on Gayder's gun
registration including microfilm dates

11/30/88

D. Pickering

Photograph • Weapons display case at
Niagara Falls Police Station

1 1/30/88

D. Pickering

Certificate of Approval for Aylmer On-
tario Police Museum • May 14/82

11/30/88

D. Pickering

Memorandum • April 2/73 to Staff In-
spector Bevan from Deputy Chief Gay-
der • re: Ordering Equipment

12/5/88

W.A. Kelly

55A

Summary of Police Act brief •
March 3/87

04/20/89

W.A. Kelly

55 B

Niagara Regional Police Board of Com-
missioners master copy sent to Solicitor
General

404 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

04/20/89

W.A. Kelly

55C

Draft brief sent to Police Board Com-
missioners from the Internal Inves-
tigation Team

12/15/88

W.A. Kelly

Confidential Report • NRPF Internal In-
quiry • 1987 • Re: James Gayder

12/5/88

W.A. Kelly

57A

BRIEF - Vol. N°. 1 • Weapons • page 1
- 220

12/5/88

W.A. Kelly

57B

BRIEF - Vol. N°. 2 • Weapons • page
221 - 585

12/5/88

W.A. Kelly

57C

BRIEF - Vol. N°. 3 • Weapons • page
586- 815

12/5/88

W.A. Kelly

Page 5 • Summary of Weapons • (tur-
ned over to Inquiry investigators)

12/6/88

W.A. Kelly

Field Training Precis N°. 3/88 • Title:
Weapons Metro Toronto Police

12/6/88

W.A. Kelly

Firearms for Disposal List for 1977

01/25/89

W.A. Kelly

60A

ORIGINAL • Firearms for Disposal List
for 1977

12/6/88

R. Collins

Firearms Log Book • 1980 - 1983
(small, green)

12/7/88

R. Collins

Kenneth Heath correspondence

12/8/88

P. Shoniker

Police Act charges against James Gay-
der, Chief of Police • Feb. 5/87

12/8/88

D. Pickering

Richard Lewis's • 2 Gun Registration
Certificates

12/12/88

W.A. Kelly

4 Letters of Correspondence •
1 ) September 9/88 to W.A. Kelly from
I. Roland • re; Gayder and NRPF In-
quiry; • 2) September 13/88 to E. Ra-
tushny from W.A. Kelly • re: NRPF
Royal Commission Inquiry • 3) October
4/88 to W.A. Kelly from E. Ratushny •
re: Your File N". 79345/802; • 4) Oc-
tober 13/88 to E. Ratushny from W.A.
Kelly • re: NRPF Royal Commission

List of exhibits 405

DATE

FILED BY

EX#

DESCRIPTION

12/13/88

R. Collins

Statement of Mary Chiavarini taken
March 19/87 by Constable G. Onich

12/13/88

R. Collins

Second statement of Mary Chiavarini •
April 1/87 taken by Constable G. Onich

12/14/88

D. Pickering

Memorandum • August 28/81 to Inspec-
tor Whitley from Sergeant Park • re:
Emergency Task Force - Training Wea-
pons

12/14/88

W.A. Kelly

Alexander Ross's hand-drawn picture of
sword he owned

12/14/88

D. Pickering

Sword

12/15/88

F. Fedorsen

Police identification card of Sergeant
Victor R. Dawson

01/10/89

W.A. Kelly

Original copy of weapons traded to Al-
bion Arms • April 17/80 (4 pages)

01/10/89

W.A. Kelly

Photocopy of photograph of Victor R.
Dawson

01/10/89

R. Collins

Purchase Order showing traded firearms
• January 29/85

01/10/89

D. Pickering

Background documentation relating to
January 29/85 • Purchasing of Firearms

02/6/89

R. Collins

75A

Memorandum* October 26/84 to Acting
Deputy Chief Shoveller from Acting Su-
perintendent Nelson • re: Standard-
ization of Weapons - Disposal of Sur-
plus Weapons

01/10/89

D. Pickering

Miscellaneous Weapons photographed
by James Gayder

01/11/89

R. Collins

BRIEF • Mini-Brief IV • Firearms
Found in locker N". 9 • April 3/84 • (E.
Lake Firearms)

01/11/89

R. Collins

St. Catharines Property Ledger • Sep-
tember 4/83 to July 26/84 (blue book)

406 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

01/12/89

R. Collins

1) Properly Control Form • (blank) •

2) Property Control Form • (completed
sample)

01/11/89

R. Collins

BRIEF • Addition to Mini-Brief IV •
All documentation on firearms found in
locker N°. 9 • April 3/84 • (E. Lake
Firearms)

01/12/89

W.A. Kelly

Sketch of lockers in sub-basement of 68
Church Street, St. Catharines • re: CIB

01/16/89

P. Shoniker

Definition • Saturday Night Specials as
per: State Laws and Published Ordi-
nances - Firearms

01/16/89

W.A. Kelly

Cassette tape of M. Miljus interview
(copy) • re: Gayder - Guns Taken • June
17/87 • by VanderMeer and Melinko

01/16/89

B. Malheson

Frank Wilcox will-say statement taken
April 29/87 by Sergeant Melinko

01/16/89

D. Pickering

List of firearms found at 1 1 Neilson
Street • prepared by Onich (for iden-
tification) • Exhibit #85 • was iden-
tified by Onich on January 17/89

01/18/89

R. Collins

BRIEF • Barlow • Schertzer •
Mini-Brief VII

01/18/89

R. Collins

Photographs of Police Museum at St.
Catharines Police Station

01/18/89

R. Collins

BRIEF : Museum

01/18/89

R. Collins

Museum Inventory prepared by Sergeant
Pay

01/18/89

P. Shoniker

Evening Tribune • June 20/85 • Article:
"Fall Opening for Police Museum cu-
rator, busy getting artifacts"

01/19/89

D. Pickering

Photographs of the London Police Mu-
seum

01/19/89

R. McGcc

Al Feor will-say statement • August
31/87 taken by Sergeant VanderMeer

List of exhibits 407

DATE

FILED BY

EX#

DESCRIPTION

01/23/89

W.A. Kelly

BRIEF • Mini-Brief V • Part 1 • Other
Firearm Witnesses

01/23/89

W.A. Kelly

94A

John Stevens hand-written statement •
March 1/87 (photocopy)

01/23/89

W.A. Kelly

94B

John Stevens statement • March 1/87 •
(typed copy)

01/23/89

W.A. Kelly

94C

John Stevens will-say statement • March
1/87 • John Stevens will-say statement •
April 24/87 (photocopy)

01/23/89

W.A. Kelly

94D

Further interview of John Stevens •
Commission interview • Jan. 18/89

01/24/89

W.A. Kelly

Firearms for Disposal List for 1978

01/24/89

W.A. Kelly

Firearms for Disposal List for 1979

01/24/89

R. Collins

Letter • December 16/69 to Chief Shee-
nan from Chief Laurie

01/25/89

W.A. Kelly

John Stevens • (original notes) • March
1/87

01/25/89

W.A. Kelly

98A

Envelope that contained John Stevens
original notes

01/25/89

W.A. Kelly

Typed version of original John Stevens
will-say statement

01/25/89

W.A. Kelly

100 A

Photograph of Police Crime I'revention
Display

01/25/89

W.A. Kelly

lOOB

Photograph of Police Crime Prevention
Display

01/25/89

R. Collins

101

Original Tom and Fern Occurrence re-
port • January 31/68

01/26/89

W.A. Kelly

102

Memorandum • 1) March 28/84 to Staff
Sergeant Miljus from Inspector Holt •
re: Firearms for Destruction 2) CPIC
message

02/1/89

R. Collins

I02A

Memorandum • May 2/84 to Staff Ser-
geant Miljus from Inspector Holt • re:
Firearms for Destruction

408 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

01/26/89

W.A. Kelly

103

Staff Sergeant Miljus Notes from inter-
views on February 28/87, March 25/87,
April 1/87, Apr. 8/87 and May 8/87

01/30/89

P. Shoniker

104 A

Copy of Staff Sergeant M. Miljus notes
for February 4-5/88 and April 12/88

01/30/89

P. Shoniker

104B

Copy of Staff Sergeant Miljus notes for
July 30/87

01/30/89

W.A. Kelly

104C

Copy of Staff Sergeant Miljus notes for
April 20/87

01/30/89

P. Shoniker

105 A

Hand-written statement of Staff Sergeant
Miljus taken September 30/87 by Ser-
geant Melinko

01/30/89

P. Shoniker

105B

Staff Sergeant Miljus statement taken
September 30/87 by Sergeant Melinko
(typed copy)

02/7/89

R. Brady

106

Transcript of Sergeant Michael Miljus
evidence on the Ellis Preliminary
Hearing

01/31/89

R. Collins

107

Routine Order N°. 2/72 • Disposition
and Location of all Departmental Re-
volvers • January 12/72 by Deputy
Chief Gayder

03/1/89

W.A. Kelly

108
Al

Top Floor • 68 Church Street,
St. Catharines • 1963 floor plan

03/1/89

W.A. Kelly

108

First Floor • 68 Church Street,
St. Catharines • 1963 floor plan

03/1/89

W.A. Kelly

108
A3

Basement • 68 Church Street,
St. Catharines • 1963 floor plan

03/1/89

W.A. Kelly

108

Sub-Basement • 68 Church Street,
St. Catharines • 1963 floor plan

03/1/89

W.A. Kelly

108
Bl

Sub-Basement • 68 Church Street,
St. Catharines • 1970 floor plan

03/1/89

W.A. Kelly

108
B2

First Floor • 68 Church Street,
St. Catharines • 1970 floor plan

03/1/89

W.A. Kelly

108C

Basement (Garages) • 68 Church Street,
St. Catharines • 1972 floor plan

List of exhibits 409

DATF

FH FD MY

EX#

DESCRIPTION

03/1/89

W.A. Kelly

108D

First Floor • 68 Church Street,
St. Catharines • 1977 floor plan

01/31/89

R. Collins

109

BRIEF • Mini-Brief VII • Toderick
Firearm - Hermer Firearm

02/1/89

W.A. Kelly

110

Article: Mauser "Broomhandle" from
the Boer War to Today

02/1/89

F. Fedorsen

111

Staff Sergeant Terrence McLaren will-
say statement

02/1/89

D. Pickering

112

Memorandum • February 6/85 to Ser-
geant Dagenais from Gary Sanderson •
re: Weapons

02/2/89

P. Shoniker

113

1) Minutes of June 26/79 meeting of
Police Board of Commissioners •

2) Report to Davies, Quebec City Police
Board of Commissioners from Chief
Harris • re: Award of Quotations N". 79-
Q-133 Service Revolver

02/6/89

D. Pickering

113A

1) Report - Award of Quotation N". 79-
Q-133 to Niagara Regional Board of
Commissioners from Chief Harris •

2) Bid Evaluation Sheet N". 79-Q-133 •
Police Revolvers June 7/79

02/6/89

R. Collins

114

Letter • January 20/89 to Judge Colter
from R.T. Harb, MD • re: Fred Wilson

02/6/89

R. Collins

115

1) Memorandum • November 15/77 to
Sergeant Chamberlain from Deputy
Chief Walsh • re: Marlin 30-30 Win-
chester • Serial N". 2500870 •

2) Memorandum • February 15/86 to
Deputy Chief Walsh from Sergeant
Chamberlain • re: Marlin 30-30 Rille

02/22/89

R. Collins

115A

1) Memorandum • February 4/82 to De-
puty Chief Walsh from Sergeant Cham-
berlain • re: Service gun • 2) Hand-
written receipt January 16/85 from
Dagenais

410 U St of exhibits

DATE

FILED BY

EX#

DESCRIPTION

02/6/89

F. Fedorsen

116

Minutes of Police Board of Commis-
sioners Meeting of July 30/80 • re:
Bomb Disposal Suit

02/13/89

F. Fedorsen

117A

Cassette Tape • Bevan interview on
May 7/87 taken by Moody and New-
burgh

02/16/89

F. Fedorsen

117B

Transcript of Bevan interview May 7/87
taken by Moody and Newburgh

02/13/89

D. Pickering

118

BRIEF • Mini-Brief N°. 9 • Other Gun
Witnesses

02/13/89

W.A. Kelly

119

Inventory of remaining items from clo-
set 374 taken April 3/87 by Billie
Hockey

02/14/89

W.A. Kelly

120

Billie Hockey will-say statement taken
by 1987 Internal Investigation Unit (but
not in Brief, typed copy)

02/14/89

D. Pickering

121

D. Pickering sketch of Deputy Chief
Gayder's office

02/15/89

W.A. Kelly

122

Noiles documents • re: Gun Trades

02/15/89

W.A. Kelly

123

Elizabeth Parnell's sketch of 1st floor at
Police Station, 68 Church Street, St.
Catharines

02/16/89

W.A. Kelly

124

List of Registrations received by OPC
from Teggin

02/16/89

W.A. Kelly

125

Letter • January 29/79 to Ministry of
Solicitor General J. Villemaire, Acting
Superintendent from Chief Harris • re:
St. Catharines Historical Museum

02/16/89

W.A. Kelly

126

Robert Russell's July 6/84 notes of
interviews with Chief Gayder, Deputy
Chief Walsh. Mrs. Bosak • re: Chief
Gayder's gun collection

08/13/90

P. Shoniker

126A

Expansion notes prepared by R. Russell
prior to testifying

List of exh ibits 411

DATE

FILED BY

EX#

DESCRIPTION

02/16/89

W.A. Kelly

127

Letter • January 15/82 to All Municipal
Authorities and Chiefs of Police in On-
tario from Shaun McGrath, Chairman,
OPC • re: Guidelines for the Disposal of
Firearms by Municipal Police Forces

02/22/89

R. Collins

128

Staff Sergeant Gary Nicholls • Firearms
Audit • January 1/83 to June 30/86

02/27/89

W.A. Kelly

129

Memorandum • June 19/84 to File -
McAuliffe from Inspector Parkhouse •
re: Meeting with CBC Reporter Mc-
Auliffe

03/1/89

D. Pickering

130

Gayder's Curriculum Vitae

03/1/89

D. Pickering

131

Photographs of Museum at Peel Re-
gional Headquarters taken by J. Gayder

03/1/89

D. Pickering

132

Photographs of Museum at Ontario Po-
lice College at Aylmer taken by J. Gay-
der

03/1/89

D. Pickering

133

Additional photographs of Museum at
Ontario Police College in Aylmer taken
by LaiTy Godfrey (OPC)

03/1/89

D. Pickering

134

Draft Regulation under the Police Act
concerning the disposal of firearms

03/2/89

D. Pickering

135

Copies of Registrations of Gayder's
guns unaccounted for

03/2/89

D. Pickering

136

Guns registered to James Gayder which
were neither at his home or reported as
found in closet 374

03/2/89

D. Pickering

137

Summary of anticipated evidence from
Billie Hockey (for identification)

03/2/89

D. Pickering

138

1968 photograph of James Gayder's son,
John

03/2/89

D. Pickering

139

CC.44 Application to register a firearm
• July 17/69 by James Gayder

412 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

03/2/89

D. Pickering

140

1) Letter • December 11/68 to Gayder
from Swan, Registrar • re: Registration
of Firearms • 2) CC.44 Application to
register a firearm • December 16/68 •
by J. Gayder

03/2/89

D. Pickering

141

Photograph • 1969 • showing Over and
Under Baretta and M-1 Carbine

03/2/89

D. Pickering

142

Letter • March 4/87 to Denise Taylor
and Board Members from Gayder • re:
Letter of Retirement

03/2/89

D. Pickering

143

Press Release • Wednesday, March 4/87
by James Gayder, Chief of Police,
NRPF

03/7/89

W.A. Kelly

144

Firearm Registration Certificate to
James Arthur Gayder • FRC N°. D-
1 1 1942 • MAKE: Rohm, serial N°. 938-
658

03/7/89

W.A. Kelly

145

Firearm Registration Certificate to
James Arthur Gayder • FRC N°. D-
595847 • MAKE: Iver Johnson, serial
N°. S-123

03/7/89

W.A. Kelly

146

Firearm Registration Certificate to
James Gayder • FRC N°. D- 178583 •
MAKE: Harrington & Richardson, serial
N°. 849

03/8/89

P. Shoniker

147

Application to register firearms by
Rossie Grose

03/8/89

P. Shoniker

148

O.P.P. • Transport Restricted Weapons
forms for Rossie Grose

03/8/89

P. Shoniker

149

Photocopy of microfilmed Property Tags

03/9/89

W.A. Kelly

150

Light tan canvas bag found in closet

374

03/9/89

W.A. Kelly

150A

Brown gym bag found in closet 374

03/9/89

W.A. Kelly

151

2 transcripts • re: Her Majesty the
Queen vs. Walter Reintaler • March
8/82 and April 15/82

List of exhibits 413

DATE

FILED BY

EX#

DESCRIPTION

03/9/901

D. Pickering

152

Diagram of Chiefs and Secretary's of-
fice

04/3/89

R. Collins

153

BRIEF • Mini-Brief VIII • Edward Lake
(1976 Police Act Charocs)

04/4/89

W.A. Kelly

154

Edward Lake's notes • September 13-
14/82, November 5-9/82, November
14/82, November 17-18/82

04/4/89

W.A. Kelly

155

Photocopy of microfilmed Property Tags

04/4/89

R. Collins

156

BRIEF • 1 1 Neilson Street • Files • re:
Weapons

04/4/89

D. Pickering

157

Handgun trade list with "F" numbers

04/6/89

W.A. Kelly

158

Constable Al Feor's notes from Sep-
tember 27/84 to October 12/84

04/10/89

W.A. Kelly

159

St. Catharines Property Ledger • July
26/84 to May 15/85 (blue book)

04/10/89

B. Shilton

160

Memorandum • February 1 1/76 to De-
puty Chief Gayder from Staff Sergeant
Ciszek • Preliminary Report Only : Ser-
geant Lake (also found in Exhibit #153)

04/10/89

B. Shilton

161

Memorandum • February 10/76 to De-
puty Chief Gayder from Inspector W.
Murdoch • re: Internal Investigation -
Sergeant Lake

04/10/89

B. Shillon

162

William Murdoch will-say statement •
re: Edward Lake

12/12/89

W.A. Kelly

163

Cassette Tape • Robert Smith interview
• June 2/87 by VandcrMeer and New-
burgh

12/12/89

W.A. Kelly

164

Transcript • Robert Smith interview •
June 2/87 by VanderMeer and New-
burgh

04/13/89

W.A. Kelly

165

Letter • April 4/89 from Dr. E. T.
Oinoncn • re: Norman Fach

04/13/89

W.A. Kelly

166

BRIEF • Diamonds

04/13/89

W.A. Kelly

167

BRIEF • Silver Tea Service

414 Lict of exhibits

DATE

FILED BY

EX#

DESCRIPTION

04/13/89

W.A. Kelly

168

Current Organizational Chart for the
Niagara Regional Police Force

04/13/89

W.A. Kelly

169

Memorandum • February 24/89 to J. In-
man from Inspector Locke • re: De-
struction of Firearms

04/13/89

W.A. Kelly

170

Niagara Regional Police Force Re-
gulations • (draft copy)

04/13/89

W.A. Kelly

171

Routine Order N". 14/89 • Forfeiture of
Weapons • Section 491 • Criminal Code
of Canada

05/3/89

W.E.C. Colter

171A

Letter • March 7/89 to Commissioner
Colter from Chief Shoveller • re: Rou-
tine Order N°. 14/89

04/13/89

W.A. Kelly

172A

Information • re: Payment to Earl White
for 2 Firearms by NRPF

04/13/89

W.A. Kelly

172B

Information • re: Payment to Terrence
Hermer for 1 Firearm

04/13/89

W.A. Kelly

172C

Information • re: Complaint from Albert
Andrews of non-return of seized firearm

04/20/89

R. Collins

173

BRIEF 1 1 • Greenfield Gun

04/20/89

W.A. Kelly

174

Occurrence Reports • re: Kisur Evidence

05/9/89

R. Collins

175

Car N". 119 - 1977 Plymouth
Maintenance Records and Gas Con-
sumption for 1977 and 1978

05/9/89

R. Collins

176

Car N°. 139 - 1981 Dodge Diplomat
Motor Vehicle Service Log (blue book)

05/9/89

R. Collins

177

Monthly Vehicle Mileage log for all
Force Cars 1980 - 1982 (black book)

05/9/89

R. Collins

178

Diagram drawn by M. Miljus of 1 1
Neilson Street

05/15/89

W.A. Kelly

179

BRIEF • Quartermasters

05/15/89

W.A. Kelly

180

Vehicle Inspection Program Form
(blank)

List of exh ihits 415

DATE

FILED UY

EX #

DESCRIPTION

05/15/89

W.A. Kelly

181

3-Part Internal Repair Order Form
(blank)

05/15/89

W.A. Kelly

182

Tire Replacement Authorization Form
(blank)

183

NUMBER WAS RESERVED BUT
NOT USED

05/15/89

W.A. Kelly

184

Computer printout of Staff Sergeant
Locke's Preventative Maintenance Pro-
gram

05/16/89

W.A. Kelly

185

Checkpoint Chrysler invoice • October
9/84 • re: Betty Parnell - Repair and
Paint Job - Police Chief Staff - 77 Cut-
lass

05/16/89

W.A. Kelly

186

Checkpoint Chrysler invoice • October
9/84 (copy) and Checkpoint Chrysler
deposit slip • October 29/84

05/16/89

W.A. Kelly

187

Niagara Regional Police Force Internal
Inquiry • 1987 • re: Elizabeth Parnell

05/17/89

R. Collins

188A

Bridgestone Tire " 407 "

05/17/89

R. Collins

188B

Bridgestone Tire " 407 "

05/17/89

R. Collins

189A

Firestone Tire " 721 "

05/17/89

R. Collins

189B

Firestone Tire " 721 "

05/18/89

R. Collins

190

Documents • re: Tender 84-T-39 form
of Tender from Firestone Company,
page 847 - 870

05/18/89

R. Collins

191

Documents • re: Tender 85-T-39 form
of Tender from Direct Tire Company,
page 871 - 887

05/18/89

R. Collins

192

Agreement • April 26/87 • between Reg
Ellis and Sergeant VanderMeer • re: No
Criminal Charges - exchange for full co-
operation

05/23/89

R. Collins

193

Memorandum • March 20/80 to Inspec-
tor Fare from Staff Sergeant Stevens •
re: Tires for Police Cruisers

416 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

05/23/89

R. Collins

194

Memorandum • April 30/87 to Acting
Chief Shoveller from Deputy Chief
Parkhouse • re: Civilian Member - Reg
Ellis

05/23/89

R. Collins

195

Tire Maintenance Survey

05/23/89

W.A. Kelly

196

Memorandum • April 13/88 to Chief
Shoveller from Sergeant VanderMeer •
re: Ellis Preliminary Hearing of April
12/88 and storage of exhibits

05/24/89

R. Collins

197

Memo • May 8/87 to R. Harris and R.
Marriott from Acting Chief Shoveller •
re: Report on Work Assignment

05/24/89

R. Collins

198

Rodney Marriott will-say • 1987 Internal
Investigation

05/24/89

W.A. Kelly

199

1) Telephone Slip • January 13/87 •

2) Gayder's notes • January 14/87

05/24/89

D. Pickering

200

1) Memorandum • September 23/81 to
Acting Inspector Swanwick from Su-
perintendent Bevan • re: Force Me-
chanic • 2) Memorandum • February
12/82 to Deputy Chief Gayder from El-
lis • re: Special Request • 3) Memo-
randum • February 17/82 to Reg Ellis
from Deputy Chief Gayder • re: Special
Request, Part-Time Employment

05/24/89

F. Fedorsen

201

BRIEF • Complaint N". 1 • vol. II • Al-
legation of Misconduct against Vander-
Meer • re: Bank Accounts of Parnell •
January 19/87

05/25/89

F. Fedorsen

202

Transcript of Sergeant VanderMeer's In-
terview of Reginald Ellis • April 25/87

05/30/89

R. Brady

203

Original hand-written notes of Vander-
Meer's interview of Reg Ellis • April

25/87

05/31/89

W.A. Kelly

204

Computer print-out of Repair history on
Car N°. 243

05/31/89

W.A. Kelly

205

Four cheques of Elizabeth Parnell pay-
able to Reg Ellis

List of exh ibits 417

DATE

FILED BY

EX#

DESCRIPTION

05/31/89

W.A. Kelly

206

Checkpoint Chrysler's bid on Tender
N°. 85-T-32

05/31/89

W.A. Kelly

207

Summary sheet of Checkpoint Chry-
sler's bid on Tender N°. 85-T-32

05/31/89

W.A. Kelly

208

Garage Register for Checkpoint Chrysler

05/31/89

W.A. Kelly

209

M.F.I. Inspection Report • May 02/86
M.F.I. Inspection Report • May 26/86
Vehicle Inventory Record and Control

06/5/89

R. Collins

210A

BRIEF • Special Fund • vol. N". 1

06/5/89

R. Collins

210B

BRIEF • Special Fund • vol. N°. 2

06/5/89

R. Collins

211A

BRIEF • Special Account, Royal Bank
of Canada Bank Statement and Dis-
bursement • vol. A

06/5/89

R. Collins

211B

BRIEF • Special Account, Royal Bank
of Canada Bank Statement and Dis-
bursement • vol. B

06/5/89

R. Collins

212A

Tag, used for bike auction, (perforated)

06/5/89

R. Collins

212B

Receipt, (carbon copy)

06/5/89

R. Collins

213A

Inventory of bicycle auction • October
22/88

06/5/89

R. Collins

213B

Supplementary Report • Bicycle Dis-
posal

06/5/89

R. Collins

213C

Auction Receipts • Bicycle (blue)

06/5/89

R. Collins

214A

Inventory of miscellaneous auction •
October 22/88

06/5/89

R. Collins

214B

Supplementary Reports • miscellaneous

06/5/89

R. Collins

214C

Auction Receipt • miscellaneous

06/5/89

R. Collins

215

NRPF bicycle auction • instructions
given to bidders

06/5/89

R. Collins

216

Ledger • Special Fund Account

06/6/89

R. Collins

217

Curriculum Vilae of Donald Russell
Holmes

418 List of exhibits

DATE

FILED BY

EX #

DESCRIPTION

06/19/89

R. Collins

218A

BRIEF • Niagara Regional Police Force
Vehicle Repairs • vol. I

06/19/89

R. Collins

218B

BRIEF • Niagara Regional Police Force
Vehicle Repairs • vol. 2

06/19/89

R. Collins

219

BRIEF • Repairs to NRPF Vehicles
Prior to Trade

06/19/89

R. Collins

220

BRIEF • Rodney Marriott

• Purchase of a 1979 Dodge Aspen •

NRPF • Unit N". 128

06/19/89

R. Collins

221

BRIEF • John Valentine Stevens • Pur-
chase of Ford • NRPF • Unit N°. 424

06/19/89

R. Collins

222

BRIEF • Inspector Clayton Marriott •
Purchase of a NRPF Vehicle known as
Fleet N°. 14

06/19/89

R. Collins

223A

BRIEF • Ronald Bevan • vol. N°. I

06/19/89

R. Collins

223B

BRIEF • Ronald Bevan • vol. N°. 2

06/19/89

R. Collins

224

BRIEF • James Gayder • Siren

06/19/89

R. Collins

225

BRIEF • James Gayder • Trailer Hitch

06/19/89

R. Collins

226A

BRIEF • Allegations against Reginald
Ellis regarding Auto Repairs and Pro-
perty from 1 1 Neilson Street • vol. N°. 1

06/19/89

R. Collins

226B

BRIEF • Allegations against Reginald
Ellis regarding Auto Repairs and Pro-
perty from 1 1 Ncilson Street • vol. N°. 2

06/19/89

R. Collins

227

BRIEF • Lawrence Quattrini

06/19/89

R. Collins

228

BRIEF • Onich Allegation Gayder and
Bicycles

06/19/89

R. Collins

229A

BRIEF • Michael Miljus

06/19/89

R. Collins

229B

BRIEF • Michael Miljus • pages 280 -
569

06/19/89

R. Collins

229C

BRIEF • Mini-Brief • Michael Miljus

06/19/89

R. Collins

230

Work Order • Independent Auto Trim
and Glass • N°. 7404 • July 3/81

List of exhibits 419

DATE

FILED BY

EX#

DESCRIPTION

06/20/90

R. Collins

231

Checkpoint Chrysler invoice • February
16/83 • Repair Order N". 55039 •
Brown Fairmont • NRPF vehicle N".
134

06/21/89

P. Shonikcr

232

Part of minutes of Niagara Regional
Board Commissioners of Police • Or-
dered on Motion • February 12/87 • C.
61 • Sale of Stolen Goods

06/21/89

P. Shoniker

233

Excerpt from confidential minutes of
meeting of Niagara Regional Board of
Commissioners of Police • February
12/87

06/21/89

P. Shoniker

234

Letter • February 1 8/87 to Larry
Quattrini from Don Holmes • re: Re-
taining Investigative Accounting Service

06/21/89

P. Shonikcr

235

Part of minutes of Niagara Regional
Board of Commissioners of Police • Or-
dered by the Board • C.79 • February
19/87 • Special Account

06/21/89

P. Shonikcr

236

Part of minutes of confidential meeting
of Niagara Regional Board of Commis-
sioners of Police • C.99 • March 12/87 •
Special Account Investigation Report

06/21/89

P. Shoniker

237

Letter • March 31/87 to Larry Quattrini
from Don Holmes • re: Review of Spe-
cial Fund

06/21/89

P. Shonikcr

238

Part of minutes of Niagara Regional
Board of Commissioners of Police •
C. 132 • April 16/87 • Special Account
Investigation

06/21/89

P. Shoniker

239

Excerpt from confidential minutes of
meeting of Niagara Regional Board of
Commissioners of Police • April 16/87

06/21/89

P. Shoniker

240

Order of Motion • Niagara Regional
Board of Commissioners of Police Con-
fidential Meeting • July 8/82 • S.35 •
Revenue from Special Account

420 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

06/21/89

P. Shoniker

241

Memorandum • September 21/87 to
Chief Shoveller from Larry Quatlrini •
re: Special Function • C. 299

06/21/89

P. Shoniker

242

Excerpt from meeting of Niagara Re-
gional Board of Commissioners of Po-
lice • February 19/87 • re: Audit by Don
Holmes

06/22/89

F. Fedorsen

243

Memorandum • February 17/82 to Re-
ginald Ellis from Deputy Chief Gayder •
re: Special Request, Part-Time Employ-
ment

06/26/89

R. Collins

244

Routine Order N". 1 1 1/80 and Routine
Order N°. 74/81 and duty rosters of M.
Miljus

06/26/89

R. Collins

245

Passenger Motor Vehicle Permit • VIN
R141K6A140674 • Plymouth Fury 1976
Brown registered to Mike Miljus

06/26/89

R. Collins

246

Cheque • March 1/83 to Brock Ford
Mercury Sales from Mike Miljus to pur-
chase 1979 Ford Fairmount N°. 134

06/26/89

R. Collins

247

Cheque • August 9/84 to Autoland
Chrysler (1981) Ltd. from Mike Miljus
to purchase 1980 Plymouth Volare (red)

06/26/89

R. Collins

248

Excerpts from Mike Miljus' notebook •
May 3-8/81 and May 23-29/81

06/26/89

R. Collins

249

Personal notebook of Ihma Miljus • re:
$750.00 entry of July 15/81. purcha.se of

car

07/31/89

D. Pickering

250

Addendum to Press release • November
23/87

08/2/89

W.A. Kelly

251

Excerpt from Gerry McAuliffe's note-
book • July 27/83

08/2/89

W.A. Kelly

251 A

Typed excerpt from Gerry McAuliffe's
notebook • July 27/83 (hand-written)

08/2/89

W.A. Kelly

252

July 3/84 • transcript of CBC Broadcast
• re: James Gayder

List of exhibits 421

DATE

FILED BY

EX #

DESCRIPTION

08/2/89

W.A. Kelly

252A

July 5/84 • transcript of CBC Broadcast
• re: James Gayder

08/2/89

W.A. Kelly

253

Excerpt from Gerry McAuliffe's note-
book • re: Parkhouse • June 25/84

08/2/89

W.A. Kelly

254

McAuliffe interview with Deputy Chief
Gayder of NRPF • June 6/83

08/2/89

W.A. Kelly

255

Operational Report • re: DeMarco with
attachments • tape with logo of NRPF,
page 3 of 18 of transcript. Document-
Legal Procedure

05/23/90

R. Collins

255A

Original photocopy received by McAu-
liffe from DeMarco • January 29/85

05/23/90

R. Collins

255B

Jim Bryan's copy

05/23/90

R. Collins

255C

Martin Walsh's copy

05/23/90

R. Collins

255D

Clayton Ruby's copy

08/3/89

W.A. Kelly

256

Release from OPP Investigation of
NRPF (Illegal Wiretap Allegations) •
Superintendent M.P. McMaster, CIB •
Thursday, December 4/86

08/3/89

R. Collins

257

BRIEF • Mini-Brief N". 2 • re: Michael
Miljus

08/8/89

R. Collins

258

BRIEF • Reg Ellis • re: Allegations
made while working at 11 Neilson
Street

08/9/89

I. Binnie

259

Hand-writing analysis of Exhibit #255
by Miss Duncan

08/10/89

F. Rowell

260

Repair Analysis by Inspector Locke

08/14/89

R. Collins

261

Robert Harris hand-written will-say
statement • July 29/87

08/14/89

W.A. Kelly

262

Bible Sheet 1980 Volare repairs • Car
N". 458 • May 9/81 to July 25/81

08/14/89

W.A. Kelly

263

Receipts • Peninsula Collision Service
Ltd.- re: Car N". 348

422 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

08/15/89

R. Collins

264

Hard copy of Workorder from Check-
point Chrysler

08/15/89

E. Ratushny

265

Interview of Gerald Allen by Robin
Breen • August 9/89

08/28/89

W.A. Kelly

266A

BRIEF • Hiring Practices • vol. I • Po-
lice Act Charges - James Gayder

08/28/89

W.A. Kelly

266B

BRIEF • Hiring Practices • vol. II • Po-
lice Act Charges - James Gayder

08/28/89

W.A. Kelly

266C

BRIEF • Hiring Practices • vol. Ill •
Police Act Charges - James Gayder

08/29/89

W.A. Kelly

267A

Applicant Material • re: Thaddeus
Joseph Sudol

08/29/89

W.A. Kelly

267B

Applicant Material • re: Ronald Andre
Quellette

08/29/89

W.A. Kelly

267C

Applicant Material • re: David Mark

Nugent

08/29/89

W.A. Kelly

268

Police folder • Monday, January 5/87 •
including 2 envelopes and appraisal
board forms for Stotts & Waters

08/29/89

D. Pickering

269

Memorandum • November 29/84 • To
Chief Gayder from Deputy Chief Walsh
• re: Selection Boards Police Constables

08/29/89

D. Pickering

270A

Memorandum • October 19/87 to Chair
Denise Taylor from Chief Shoveller •
re: Police Applicant Selection Process

08/29/89

D. Pickering

270B

Memorandum • October 28/87 to Chief
Shoveller from Quattrini • re: 5 to 1
Ratio

08/29/89

P. Shoniker

271

Memorandum • November 4/87 to Chief
Shoveller from Denise Taylor • re:
Police Applicants

08/29/89

P. Shoniker

272

Original 9 pages of Minutes (Tab N". 8)
of material referred to by I. Wilcox

List of exhibits 423

DATE

FILED BY

EX#

DESCRIPTION

08/30/89

W.A. Kelly

273

Mrs. Wilcox's typed notes • Excerpts
from February 10/87 • discussing
amendments to December 22/86
Meeting

08/30/89

P. Shonikcr

274

Photocopy of Regulation 791 of the Po-
lice Act of Ontario • Section 32

08/30/89

P. Shoniker

275

Package of material provided to all ap-
plicants for the position of Police Con-
stable

08/30/89

R. Collins

276

Minutes of the Personal Monitoring
Committee • December 22/86

08/30/89

W.A. Kelly

277

Package of Docutiients • January 16/86 •
Selection Board Results

09/5/89

W.E.C. Colter

278

Letter • September 1/89 to Mark De-
Marco from Herman Turkslra • re: Re-
quest for Standing

09/5/89

R. Collins

279

Attachments to February 10/87 Meeting
• Board of Commissioners of Police

09/5/89

W.A. Kelly

280A

Police Board Meeting • Thursday
January 15/87 • typed notes of E. Par-
ncll • short-hand notes

09/5/89

W.A. Kelly

280B

Police Board Meeting • January 20/87 •
Special Board Meeting • re: Hiring
Practices • typed notes of E. Parnell
(short-hand notes)

09/5/89

R. Collins

281

Memorandum • October 15/86 to De-
puty Chief Shoveller from Staff Super-
intendent Moody • re: Selection Board -
Shawn Robert Clarkson

09/5/89

R. Collins

282

Excerpt from Staff Superintendent
Moody's notes • re: Hiring

09/5/89

R. Collins

283

Police Applicants • Monday, January
26/87 • Police Applicants • Tuesday,
January 27/87

09/11/89

W.A. Kelly

284

Police Board of Commissioners Mi-
nutes of Meeting • October 7/86 • Per-
sonal Monitoring Committee

424 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

09/11/89

W.A. Kelly

285

Police Board of Commissioners Mi-
nutes of Meeting • October 14/86 • Per-
sonal Monitoring Committee

09/12/89

P. Shoniker

286

Letter • November 28/86 to W. Dickson
from H. Daniel, Harris, Barr • re:
Elizabeth Parnell - Salary Increase

09/12/89

W.A. Kelly

287A

Letter* August 13/86 to Commissioner
Taylor from Acting Chief Shoveller • re:
Documents pertaining to applicant tes-
ting - employment on Force

09/12/89

W.A. Kelly

287B

Report • re: Applicant Testing/Police
Officers

09/13/89

W.A. Kelly

288

Hand-written notes of D. Taylor •
events that occurred at certain Mo-
nitoring committee meetings

09/14/89

D. Pickering

289

Members of Governing Authorities Re-
lationship with individual Members of
the Force

09/14/89

D. Pickering

290

Limitations of a Board Section 31 of
Regulation 791/80

09/14/89

P. Shoniker

291

Letter • January 5/87 to Clayton Mar-
riott from Ron Brady • re: C. Vander-
Mecr

09/14/89

P. Shoniker

292

Draft • Police Act Charges

09/19/89

W.A. Kelly

293

Notes of Sandy Taylor of January 15/87
Meeting of Board of Commissioners

09/19/89

W.A. Kelly

294A

St. Catharines Standard article • August
6/86 • "Police Force - 27% Related"

09/19/89

W.A. Kelly

294B

St. Catharines Standard article • Sep-
tember 10/86 • "Hiring of Relatives In-
creasing on NRP"

09/19/89

W.A. Kelly

294C

St. Catharines Standard article • Sep-
tember 12/86 • "Police Board Votes for
a Review"

List of exhibits 425

DATE

FILED BY

EX#

DESCRIPTION

09/19/89

W.A. Kelly

295

Letter • September 8/86 to William
Dickson from Chief Gayder • re: Family
Relationships NRPF

09/19/89

W.A. Kelly

296

Letter • September 19/89 to W.E.C.
Colter from Faye McWatt • re: Standing
for Internal Investigation Team

10/12/89

R. Collins

297A

Index of Exhibits

10/12/89

R. Collins

297B

Index of Statements

10/12/89

R. Collins

297C

Index of Information • (already filed) •
Gayder Brief • Exhibit #49A • vol. I;
Gayder Brief (already filed) Exhibit
#49B • vol. II; Gayder Brief (already
filed) Exhibit #49C • vol. Ill; Gayder
Brief (already filed) • Exhibit #49D •
vol. IV; • Gayder Brief (already filed) •
Exhibit #49E • vol. V; Gayder Brief
(already filed) • Exhibit #49F • vol. VI

10/12/89

R. Collins

298A

Gayder Brief • vol. VII

10/12/89

R. Collins

298B

Gayder Brief • vol. VII • (A)

10/12/89

R. Collins

298C

Gayder Brief • vol. VII • (B)

10/12/89

R. Collins

298D

Gayder Brief • vol. VII • (ci)

10/12/89

R. Collins

298E

Gayder Brief • vol. VII • (cii)

10/12/89

R. Collins

298F

Gayder Brief • vol. VII • (ciii)

10/12/89

R. Collins

298G

Gayder Brief • vol. VII • (civ) •
Gayder Brief (already filed) • Exhibit
#34 • vol. VII • (D)

10/12/89

R. Collins

299A

BRIEF • Miljus • vol. I

10/12/89

R. Collins

299B

BRIEF • Miljus • vol. II

10/12/89

R. Collins

299C

BRIEF • Miljus • vol. Ill

10/12/89

R. Collins

300A

BRIEF • Stevens • vol. I

10/12/89

R. Collins

300B

BRIEF • Stevens • vol. II (already filed)
• BRIEF • Elizabeth Parncll • Exhibit

#187

426 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

10/12/89

R. Collins

301

BRIEF • Rodney Marriott

10/12/89

R. Collins

302

Regina vs Ronald F. Bevan

10/12/89

R. Collins

303A

BRIEF • Reg Ellis • vol. I

10/12/89

R. Collins

303B

BRIEF • Reg Ellis • vol. II

10/12/89

R. Collins

303C

BRIEF • Reg Ellis • vol. Ill • (already
filed) Internal Report to Commission •
Exhibit #56 • re: Gayder

10/12/89

R. Collins

304

Overview

10/12/89

R. Collins

305A

Overview • vol. I • Managerial Projects
and Solutions

10/12/89

R. Collins

305B

Overview • vol. II • Managerial Projects
and Solutions • April 20/90 • (already
filed) Niagara Regional Police Board of
Exhibit #55B • Commissioners Master
Brief sent to the Solicitor General •
April 20/90 • (already filed) draft brief
sent to the Niagara Exhibit #55 •
Niagara Regional Board of Commis-
sioners from the Internal Investigation
Team

10/12/89

R. Collins

306

Major Occurrence Log • Special Inves-
tigation

10/12/89

R. Collins

307A

Appendix to Internal Investigation Do-
cuments

10/12/89

R. Collins

307B

Appendix to Internal Investigation • vol.
N°. 6A - C, E to F • Witness Statements

10/12/89

R. Collins

307C

Appendix to Internal Investigation • vol.
N". 7G - M • Witness Statements

10/12/89

R. Collins

307D

Appendix to Internal Investigation • vol.
N". 8N - R • Witness Statements

10/12/89

R. Collins

307E

Appendix to Internal Investigation • vol.
N°. 9 "S" • Witness Statements

10/12/89

R. Collins

307F

Appendix to Internal Investigation • vol.
N". lOT - Y • Witness Statements and
Appendix D

List of exhibits 427

DATE

FILED BY

EX#

DESCRIPTION

10/12/89

R. Collins

308

BRIEF • Internal Investigation • re:
Onich

10/12/89

R. Collins

309

BRIEF • Internal Investigation • re: Joe
Newburgh

11/1/89

F. Mcwatt

309B

1) Sergeant Newburgh notes previous to
February 18/87 • 2) Plus February 14/84

10/12/89

R. Collins

310

BRIEF • Internal Investigation • re: Me-
linko

10/12/89

R. Collins

311

BRIEF • Internal Investigation • re: P.C.
Lee Rattray

10/12/89

R. Collins

312

BRIEF • Internal Investigation • re:
Carol Berry, Civilian

10/12/89

R. Collins

313

BRIEF • Internal Investigation • re:
Billie Hockey, Civilian

10/12/89

R. Collins

314

BRIEF • Internal Investigation • re:
Denise Taylor

10/12/89

R. Collins

3I5A

BRIEF • Internal Investigation • re:
Chief Shoveller (N". 1)

10/12/89

R. Collins

3I5B

BRIEF • Internal Investigation • re:
Chief Shoveller (N°. 2)

10/12/89

R. Collins

316A

BRIEF • Internal Investigation • re:
James Moody • vol. N". I

10/12/89

R. Collins

316B

BRIEF • Internal Investigation • re:
James Moody • vol. N°. II

10/12/89

R. Collins

316C

BRIEF • Internal Investigation • re:
James Moody • vol. N". Ila

10/12/89

R. Collins

3I6D

BRIEF • Internal Investigation • re:
James Moody • vol. N". Ill

10/12/89

R. Collins

317A

BRIEF • Internal Investigation • re: Ser-
geant VanderMeer • vol. N°. I

10/12/89

R. Collins

317B

BRIEF • Internal Investigation • re: Ser-
geant VanderMeer • vol. N". II

10/12/89

R. Collins

317C

BRIEF • Internal Investigation • re: Ser-
geant VanderMeer • vol. N". Ill

428 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

10/12/89

R. Collins

317D

BRIEF • Internal Investigation • re: Ser-
geant VanderMeer • vol. N°. IV

10/17/89

W.E.C. Colter

318A

Notes of Denise Taylor Meeting with R.
Brady

10/17/89

W.E.C. Colter

318B

Notes of Denise Taylor (pages before
and after) meeting with Ron Brady

10/19/89

B. Miller

319

Globe and Mail Report • Peter Moon •
2 articles • October 18/85 • 1) "A friend
in need" 2) "Provoked probe to thwart
police sergeant, man says"

10/19/89

B. Miller

320

Memorandum • January 6/84 to Super-
intendent Shoveller from Deputy Chief
Walsh •
re: C. and Sergeant Typer

10/19/89

B. Miller

321

Notebook of Denise Taylor • January
17/86 to January 22/86

10/24/89

B. Matheson

322

Memorandum • re: Reg Ellis • To Ser-
geant Baskerville from Carol Berry

11/1/89

K. Dunlop

323

Letter • April 29/87 to Acting Chief
Shoveller from R. Brady • re: NRP In-
ternal Investigation - Reg Ellis

11/1/89

K. Dunlop

324

Letter • May 1/87 to Acting Deputy
Chief, Operations, James Moody from
Newburgh • re: Complaint of Ron Brady

11/1/89

K. Dunlop

325

Letter- May 28/87 to Acting Chief Sho-
veller from R. Brady • re: Reg Ellis

11/1/89

K. Dunlop

326

3 complaint Notification • June 5/87 to
Newburgh, Rattray, VanderMeer from
Acting Staff Superintendent TurnbuU*
re: Improper Conduct

11/1/89

K. Dunlop

327

Globe and Mail article • March 9/89 by
Peter Moon • re: "NRP Force" (for
identincation) • Exhibit #327 • was
identified by Peter Moon on December
11/89

11/14/89

R. Collins

328

Cover for Crown Brief • re: Reintaler

List of exhibits 429

DATE

FILED BY

EX #

DESCRIPTION

11/14/89

R. Collins

329

Routine Order 1 1 1/87 • July 6/87 to
Melinko from Acting Chief Parkhouse •
re: Transfer from Fraud Unit to Ope-
rations

11/14/89

R. Collins

330A

Excerpt from Nation Firearms Manual

11/14/89

R. Collins

330B

Top Break Pistol (photocopied picture)

11/14/89

R. Collins

330C

Hammerless Pistol (photocopied picture)

11/15/89

R. Collins

331

Excerpt from National Firearms Manual
• re: Museums

11/20/89

W.E.C. Collcr

332A

Excerpt from Mike Miljus Notebook •
July 30/87

11/20/89

W.E.C. Colter

332B

Excerpt from Mike Miljus Notebook •
April 12/88

11/20/89

D. Pickering

333

Excerpt from Gun Traders Guide •
Ninth Edition, completely revised

1 1/20/89

D. Pickering

334

Excerpt from Flaydermans Guide to An-
tique American Firearms • Third Edition

11/20/89

D. Pickering

335

Excerpt from National Firearms Manual
• Registration of Restricted Weapons

11/20/89

D. Pickering

336

Confidential Report to Sergeant Melinko
• re: Firearms Registration

11/21/89

K. Dunlop

337

Request for Tracing Firearms

11/21/89

K. Dunlop

338

Memorandum • June 25/87 to Acting
Deputy Chief Moody from Sergeant
Melinko • re: Meeting with W. Wolski,
Crown counsel Attorney General's
office

11/22/89

K. Dunlop

339

Original file relating to Gun N". 273

11/22/89

W.E.C. Colter

340

Regina vs Marx'in • re: Henderson

1 1/22/89

W.A. Kelly

341

Photograph of screwdriver used to open
closet 374

11/28/89

W.A. Kelly

342

Memorandum • June 8/87 to Parkhouse
from Lee Rattray • re: Request from
Deputy Chief Parkhouse

430 List of exhibits

DATE

FILED liY

EX#

DESCRIPTION

11/30/89

D. Pickering

343

Memorandum • August 25/87 to Acting
Deputy Chief Moody from Sergeant
VanderMeer • re: Gayder, the OPC In-
vestigation

11/30/89

D. Pickering

344

OPC Schultz Report • September 1982

12/6/89

K. Dunlop

345A

Memorandum • April 25/88 to Staff Su-
perintendent Moody from Chief Sho-
veller • re: Preliminary Inquiry - Reg
Ellis

12/6/89

K. Dunlap

345B

Memorandum • April 28/88 to Chief
Shoveller from Staff Superintendent
Moody • re: Preliminary Inquiry - Reg
Ellis

12/6/89

K. Dunlop

346

Letter • February 23/87 to Acting De-
puty Chief Shoveller from Staff Super-
intendent Moody •
re: C. complaint

12/6/89

K. Dunlop

347

Globe and Mail articles • November
24/87 by Peter Moon • Article: "Niagara
Regional Police traded and sold seized
guns, report says" • (This can also be
found in Brief, Exhibit #307A - Tab
266)

01/8/90

B. Malhcson

348

Charge sheet for Typer with attached
Endorsement • June 18/87 by J. A.
Pringle

01/11/90

R. Collins

349

Dcnise Taylor Notes of February 1/88
(Sealed Document, counsel only)

06/20/90

P. Shonikcr

349A

Dcnise Taylor Notes of February 1/88 •
(highlighted areas by Dcnise Taylor
being terminology or language which
was not hers)

01/16/90

F. Fcdorscn

350

1) Letter • January 10/90 to Ron Collins
from Deputy Chief Kelly • re: Basker-
ville Complaint • 2) Letter • January
10/90 to Ron Collins from Deputy Chief
Kelly • re: P. Barr complaint

List of exhibits 431

DATE

FILED BY

EX#

DESCRIPTION

01/16/90

F. Fedorsen

351

Memorandum • December 1 1/87 to
Chief Shoveller from Acting Staff Su-
perintendent Franko • re: Inquiries -
Mansion House Hotel

01/16/90

F. Fedorsen

352

1) Letter • February 25/88 to Chief Sho-
veller from R. McGee • re: VanderMccr
- 2 Police Act charges • 2) Letter •
March 8/88 to R. McGee from Chief
Shoveller • re: Reply to McGee's letter

01/29/90

R. Collins

353A

Memorandum • August 27/86 to John
Takach from Shaun MacGralh • re: Nia-
gara Regional Board of Commissioners
of Police

01/29/90

R. Collins

353B

Memorandum • September 15/86 to Me-
morandum to File from John McBeth •
re: Meeting with Niagara Regional
Commissioners of Police

01/29/90

R. Collins

353C

1) Memorandum • September 17/86 to
John Takach from Shaun MacGralh • re:
Niagara Regional Police Board of Com-
missioners of Police • 2) Letter •
September 12/86 to John McBcth from
William Dickson • re: Meeting of Sep-
tember 11/86

01/23/90

D. Pickering

354

Press release • May 28/86 by Denise
Taylor • "Commission conducting busi-
ness behind closed doors"

01/29/90

W.A. Kelly

355

December 4/86 • Minutes of Police
Board of Commissioners meeting

01/29/90

W.A. Kelly

355A

Press Release by Police Board of Com-
missioners • re: Results of OPP Report

01/25/90

K. Dunlop

356

Complaints against police by Ron Brady
• April 26/87 • and Complaint Report,
re: Special Investigation Unit

01/25/90

K. Dunlop

357

Reg Ellis will-say taken by Sergeant
Franko

432 List of exhibits

DATE

FILED HY

EX#

DESCRIPTION

01/31/90

R. Collins

358

BRIEF • Complaint N°. 2 • vol. II •
Allegation of Misconduct against Staff
Sergeant Newburgh, Sergeant Vander-
Meer, Rattray • April 26/87

02/1/90

P. Barr

359A

BRIEF • Ellis Preliminary Hearing
transcript

02/1/90

P. Barr

359B

BRIEF • Judgement of Ellis Preliminary
Hearing

02/5/90

R. Collins

360

Melinko's hand-written request for tra-
cing firearms for 26 Welland Guns

02/8/90

W.A. Kelly

361

Chart • association between X, Y, Z and
C.

02/12/90

R. Collins

362

6 Photographs of boat owned by Ron
Bevan • purchased in 1982 (photo-
copies)

02/12/90

R. Collins

363

1) Radio telephone Operator's Cer-
tificate to Ronald Bevan • November
3/82 • 2) Ron Bevan's Radio License
Statement due March 31/83 • 3) Cheque
• March 24/83 to Receiver General from
Bevan • re: Radio License Payment

02/12/90

R. Collins

364

Declaration • February 25/82 sold to
Ron Bevan by Brian Bevan • re: 1979
Toyota Corolla

02/12/90

R. Collins

365

Written Preamble prepared by Ron Be-
van for interview with Moody and New-
burgh

02/12/90

W.A. Kelly

366

Sergeant VandcrMeer's notes of inter-
view with Russell and Alexander • Au-
gust 24/87

02/21/90

D. Pickering

367

Memorandum • April 16/87 to Acting
Deputy Chief Moody from Sergeant
VanderMeer • re: Board of Police Com-
missioners Meeting of April 16/87

02/22/90

D. Pickering

368

Flow Chart of Property and Vehicle
Disposition

List of exhibits 433

DATE

FILED BY

EX #

DESCRIPTION

06/4/90

R. Miller

369

Newspaper Article • October 15/88 •
"Abandon Police Inquiry: Dick Regional
Chairman say's it's 'an ego trip' for
Taylor"

02/22/90

B. Matheson

370

Typed will-say of M. Miljus • April
8/87 also hand-written notes of Sergeant
VanderMeer (original)

02/22/90

B. Matheson

371

Original will-say of M. Miljus • April
8/87 written by M. Miljus and Vander-
Meer and signed by Miljus and Vander-
Meer

02/26/90

B. Matheson

372

Memorandum • December 15/83 to In-
spector Gittings from Sergeant Vander-
Meer •
re: C. and Sergeant Edward Typer

02/26/90

B. Matheson

373

Interview December 16/83 of John Car-
dillo by Sergeant VanderMeer and Con-
stable Peressotti

02/26/90

B. Matheson

374

Arrest Report • December 16/83 for C. •
re: 4 Charges

02/26/90

B. Matheson

375

General Occurrence Report N". 69796 •
June 28/83 • re: Vincent Paite and C.
Occurrence • Information - Dumping
Fill

02/26/90

L. Rattray

376

1) Memorandum • May 11/88 to Acting
Staff Sergeant Mooney from Inspector
Lampman • re: P.C. 6700: Lee Rattray •

2) Order N". 18/88 • Transfer of Lee
Rat-tray to Beat-Officer • 3) Order N".
17/88 • Divisional Standing Order •
Transfers effective May 8/88

02/26/90

L. Rattray

377

Personal Evaluation of Lee Rattray •
September 24/87 by Sergeant Vander-
Meer

02/27/90

L. Rattray

378

Letter • June 17/87 to Acting Deputy
Chief Moody from Sergeant Vander-
Meer • re: Meeting, Attorney General's
Department • June 16/87

434 List of exhibits

DATE

FILED BY

EX #

DESCRIPTION

03/1/90

L. Rattray

379

Letter • December 22/87 to Acting De-
puty Chief Moody from Acting Staff
Sergeant VanderMeer • re: Chambers,
C, VanderMeer investigation

03/1/90

L. Rattray

380

Memorandum • February 20/87 to Ac-
ting Deputy Chief Moody from Staff
Sergeant Newburgh • re: Request for
Reports

03/1/90

L. Rattray

381

Letter • April 29/87 to Acting Chief
Shoveller from R. Brady • re: NRP In-
ternal Investigation and re: Reg Ellis

05/23/90

F. Fcdorscn

381A

1) Letter • April 29/87 to Acting Chief
Shoveller from R. Brady • re: NRP In-
ternal Investigation and re: Reg Ellis
(with written comments) • 2) Letter •
May 28/87 to Acting Chief Shoveller
from R. Brady • re: Reg Ellis • 3) Let-
ter • June 1/87 to R. Brady from Acting
Chief Shoveller • re: Reply to May
28/87 letter

03/1/90

L. Rattray

382

Letter • October 30/87 to Acting Deputy
Chief Moody from Acting Staff Ser-
geant VanderMeer • re: Meeting with
Board of Commissioners of Police
counsel • October 29/87

03/1/90

L. Rattray

383

Letter • December 18/87 to Deputy
Chief Moody from Acting Staff Ser-
geant VanderMeer • re: Possible Alle-
gations against Sergeant Frank of ob-
structing justice

List of exhibits 435

DATE

FILED BY

EX#

DESCRIPTION

03/1/90

L. Rattray

383A

1) Memorandum • January 12/88 to
Chief Shoveller from Acting Deputy
Chief Moody • re: Memorandums
against Sergeant Franko • 2) Letter •
December 23/87 to Acting Deputy Chief
Moody from Acting Staff Sergeant Van-
derMeer • re: Complaint of Neglect of
Duty against Acting Staff Sergeant
Franko under Police Act (for iden-
tirication) • Exhibit #383A • Letter 2
was identified by Chief Shoveller on
May 9/90

04/30/90

R. Collins

384

Brief • Statements of Janice Pay •

1) Commission Interview • 2) Statement

to NRPF Association

04/30/90

F. Fedorsen

385

Sketch of Executive offices of NRPF in-
dicating location of Mrs. Pay's desk
with subsequent amendments by Mrs.
Pay (Exhibit #385 was edited by Max-
ine Knox and Billie Hockey on May
1/90)

05/2/90

K. Dunlop

386

Memorandum • November 5/87 to Chief
Shoveller from Acting Staff Sergeant
VanderMeer • re: J. Gaydcr and Alexan-
der Ross Firearms

05/2/90

K. Dunlop

387

Memorandum • August 21/87 to Acting
Deputy Chief Moody from Sergeant
VanderMeer • re: Interview with In-
spector Jones, OPP

05/3/90

K. Dunlop

388

Hearing under Police Act • December
2/88 • in matter of Cornclis VanderMeer
• reasons for sentence on pages 33 - 35

05/3/90

K. Dunlop

389

1 ) Memorandum • October 23/84 to In-
spector Gittings from Sergeant Vander-
Meer • re: C. Complaint •

2) Memorandum • October 25/84 to Ser-
geant VanderMeer from Acting Deputy
Chief Shoveller • re: C. Complaint

436 List of exhibits

EX#

DESCRIPTION

UA 1 1,

rlLr/U ni

05/3/90

K. Dunlop

390

Memorandum • January 3/85 to Super-
intendent Leigh from Sergeant Vander-
Meer • re: Release of Eugene Trasewich

05/3/90

K. Dunlop

391

Memorandum • June 12/87 to Acting
Chief Shoveller from Acting Super-
intendent Kelly • re: Transfer of Ser-
geant Cor VanderMeer, P.C. N°. 8119

05/7/90

W.A. Kelly

392

List of Inspectors

05/9/90

W.A. Kelly

393A

Letter • March 27/87 • Delivered to Ac-
ting Chief Shoveller by Superintendent
McMaster • re: NRPF providing list of
firearms

05/9/90

W.A. Kelly

393B

Copy of Gayder Gun Registration • re-
ceived by Acting Chief Shoveller from
S. McMaster • March 27/87

05/14/90

W.A. Kelly

394

1) Letter • February 25/87 to Ian Roland
from William Dunlop • re: James Gay-
der - Police Act charges • 2) Memo-
randum • February 25/87 • to File from
Ian Roland • re: James Gayder - Police
Act charges • 3) Memorandum • April
21/87 to File from Ian Roland • re:
James Gayder

05/14/90

W.A. Kelly

395

Board of Police Conmiissioners Motion
that William Dunlop be retained • re:
Police Act charges against Gayder

05/14/90

W.A. Kelly

396

Synopsis of Evidence • re: Gayder -
Police Act charges

05/14/90

W.A. Kelly

397

Ringed black binder • re: Gayder -
Police Act charges (another version of
55 B)

05/15/90

R. Brady

39S

Report • January 10/87 to Deputy Chief
Shoveller from Sergeant VanderMeer •
re: Possible Misuse of NRPF Funds

List of exhibits 437

DATE

FILED BY

EX#

DESCRIPTION

05/16/90

P. Shoniker

399

1) Report • January 23/87 to Denise
Taylor from Chief Gayder • re: Bell
Correspondence • 2) Letter • January
23/87 to Andrew Bell from Chief Gay-
der • re: Transfer of Sergeant Vander-
Meer • 3) Letter • January 19/87 to
Chief Gayder from Andrew Bell • re:
Sergeant Cornelis VanderMecr

05/17/90

P. Shoniker

400

Minutes of Police Board of Commis-
sioners Meeting • April 29/87 • Minutes
C.154 (for identincation) • Exhibit
#400 was identified by Denise Taylor
on June 20/90

08/7/90

P. Shoniker

400A

Minutes of Police Board of Commis-
sioners Meeting • April 29/87 • Minutes
C.154 (corrected version)

05/23/90

F. Fedorsen

401A

Minutes of Confidential Meeting of Po-
lice Board of Commissioners • August
7/86 • re: Minutes C.160

05/23/90

F. Fedorsen

40IB

Letter • August 29/86 to William Dick-
son, Chairman from Chief Gayder • re:
Alleged that Dr. Lorenzen Firearms
Audit NRP

06/20/90

P. Shoniker

401C

Letter • August 29/86 • C. 144/86 to
Wilbert Dick from Chief Gayder • re:
Allegations - Dr. Lorenzen

05/22/90

K. Dunlop

402A

Memorandum • January 16/84 to Chief
Gayder from Deputy Chief Walsh • re:
C. Complaint against VanderMecr

05/22/90

K. Dunlop

402B

Memorandum • October 2/84 to Super-
intendent Shoveller from Deputy Chief
Walsh • re: C. Complaint against
VanderMecr

05/22/90

K. Dunlop

402C

Memorandum • October 12/84 to De-
puty Chief Walsh from Staff Sergeant
Chambers • re: C. Complaint against
VanderMecr

438 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

05/22/90

K. Dunlop

403A

Memorandum • October 30/84 to In-
spector from Hilary Roy • re: Release of
File Information

05/22/90

K. Dunlop

403B

Ledger File sheet from page 79 from
Brief "Further Materials Relating to
Sergeant VanderMcer"

05/22/90

K. Dunlop

403C

Ledger File Sheet from page 80 from
Brief "Further Materials Relating to
Sergeant VanderMeer"

05/22/90

K. Dunlop

403D

Memorandum • October 30/85 to De-
puty Chief Shoveller from Inspector Ko-
pinak • re: Release of file info and
photographs

05/23/90

K. Dunlop

404

Memorandum • October 10/85 to Chief
Gayder from Staff Inspector Chandler •
re: Globe and Mail

05/23/90

F. Fcdorscn

405

5 Letters Correspondence • re: Sergeant
VanderMeer - Police Act Charges •
1) Letter • January 20/88 to Sergeant
Melinko from R. McGee, Q.C. • re: Ser-
geant VanderMeer • 2) Letter • January
21/88 to R. McGee from Inspector Jo-
nes • re: Sergeant VanderMeer • 3) Let-
ter • February 2/88 to Denise Taylor
from Chief Shoveller • re: Police Act
Charges • 4) Letter • February 25/88 to
Chief Shoveller from R. McGee, Q.C. •
5) Letter • March 8/88 to R. McGee,
Q.C. from Chief Shoveller • re: Police
Act charges - Sergeant VanderMeer

05/23/90

F. Fedorscn

406

Synopsis of Moody's notebooks as it
relates to meeting of VanderMeer and
Chief Shoveller

05/23/90

R. Collins

407

BRIEF • Niagara Regional Police Force
Unlawfully Intercepted The Private
Communications of Mark Tiffany De-
Marco

05/30/90

K. Dunlop

408

Letter • received September 19/85 to:
Stephen Shcrritf from C.H. plus en-
velope

List of exhibits 439

DATE

FILED BY

EX#

DESCRIPTION

05/30/90

K. Dunlop

409

CPIC Message • May 30/90 • RCMP
Criminal Records of C.

05/30/90

K. Dunlop

410

Supplementary Report • July 15/85 •
Occurrence, Counselling Murder • re: C.

05/31/90

P. Shonikcr

411A

BRIEF • Stephen Sherriff Information
Brief • vol. I (page 1 - 290)

05/31/90

P. Shonikcr

411B

BRIEF • Stephen Sherriff Information
Brief* vol. II (page 291 - 570)

05/31/90

W.A. Kelly

412

Stephen Sherriff Notes • re: Niagara
Regional Police Inquiry

05/31/90

W.E.C. Colter

413A

Order of Authorization • re: Wiretap by
Honourable Justice Holland • March
21/85 • (sealed document, signed by
Commissioner)

06/5/90

W.A. Kelly

413B

Wiretap Tape of conversation between
Stephen Sherriff and G.H (sealed
document, signed by Commissioner)

05/31/90

D. Pickering

414

3 Letters of Correspondence plus news-
paper article • April 18/87 • between
Pickering and Richardson • April 23/90,
November 1/89, October 17/89

05/31/90

R. Collins

415

BRIEF • Neil Taylor and Donald Ride-
out Incident • December 24/86

06/5/90

W.A. Kelly

416

Package of material received by Dcnise
Taylor from Mai Woodhouse • Aug.
29/86 regarding request for Police In-
quiry

06/5/90

W.A. Kelly

417

Denise Taylor Notes • November 2/86 •
re: Meeting with John Crossingham

06/13/90

R. Collins

418A

Black's Opinion • re: James Gaydcr

06/13/90

R. Collins

418B

Greenspan/Humphrey's Opinion • re:
James Gayder

06/13/90

R. Collins

418C

E. Ratushny's Opinion • re: James
Gayder

440 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

06/13/90

R. Collins

418D

Memo to file • Niagara Regional Board
of Commissioners of Police from Fre-
derick Fedorsen • November 4/87 • re:
Telephone Conversation with Humphrey

06/12/90

W.A. Kelly

419

November 5/87 • Meeting of Niagara
Regional Board of Commissioners Po-
lice

06/27/90

R. Collins

420

November 15/87 • Confidential Meeting
of Niagara Regional Board of Commis-
sioners

06/12/90

W.A. Kelly

421

Letter • December 10/87 to Honourable
Joan Smith from E. Ratushny • re: Ju-
dicial Inquiry into allegations of im-
proprieties related to NRPF

06/13/90

D. Pickering

422

Special Confidential Meeting • August
18/88 of Niagara Regional Board of
Commissioners

08/13/90

P. Shoniker

423

November 5/87 • Confidential Meeting
of Niagara Regional Board of Commis-
sioners

06/14/90

R. Collins

424

Denise Taylors copy of Wolski's •
October 12/87 report and her notes re-
lating to this

06/19/90

P. Shoniker

425

Definitions of Organized Crime

06/20/90

P. Shoniker

426

Niagara Falls Review article • No-
vember 26/87 • "Gayder for Police
Probe - Chief has mixed emotions about
probe - says it will be good in long run"

06/20/90

P. Shoniker

427

Letter • August 26/87 to Niagara Re-
gional Board of Commissioners of Po-
lice from Justice Barr • re: Sergeant
Baskervillc

06/20/90

P. Shoniker

42HA

"...indicating Alexander Ross' telephone
number for 1982."

06/20/90

P. Shoniker

428B

"...indicating Alexander Ross' telephone
number for 1983."

Lis t of exh ih its 44 1

DATE

FILED BY

EX#

DESCRIPTION

06/20/90

P. Shonikcr

428C

"...indicating Alexander Ross' telephone
number for 1984."

06/20/90

P. Shonikcr

428D

"...indicating Alexander Ross' telephone
number for 1985."

06/20/90

P. Shonikcr

429A

Letter • September 3/87 to Denisc Tay-
lor from Harry Daniel • re: Congra-
tulations re Shoveller

06/20/90

P. Shonikcr

429B

Thank You Note • August 25/87 from
family of Deceased

06/20/90

P. Shonikcr

429C

Letter • July 29/87 to Denisc Taylor •
re: Thanking her for assistance

06/20/90

P. Shonikcr

430A

Schedule of Police Association Con-
tracts • 1970 - 1990

06/20/90

P. Shonikcr

430B

1987 Police Arbitration Submissions by
Niagara Regional Police Association

06/20/90

P. Shonikcr

431

The Report of the Race Relations and
Policing Task Force

06/20/90

P. Shonikcr

432

Papers prepared by the Honourable Gor-
don Killcen for Seminars of the Munici-
pal Police Authorities • 1982, 1985,
1986, 1987

06/20/90

P. Shonikcr

433

Presentation by Irv Alexander, Advisor,
OPC at Training Seminar in 1986

06/20/90

W.A. Kelly

434

Mrs. Taylor's copy of Confidential Re-
port of NRPF Internal Inquiry • 1987 •
plus pages 91-93 (Exhibit #56)

06/25/90

P. Shonikcr

435A

October 30/87 • Application for position
of Deputy Chief of Police of a Staff Su-
perintendent (sealed document)

06/25/90

P. Shonikcr

435B

October 30/87 • Application for position
of Deputy Chief of Police of a Staff Su-
perintendent (sealed document)

06/25/90

P. Shonikcr

435C

November 6/87 • Application for po-
sition of Deputy Chief of Police of a
Superintendent (.sealed document)

442 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

06/25/90

P. Shonikcr

435D

November 12/87 • Application for po-
sition of Deputy Chief of Police of an
Inspector (sealed document)

06/25/90

P. Shoniker

435E

November 4/87 • Application for po-
sition of Deputy Chief of Police of an
Inspector (sealed document)

06/25/90

P. Shoniker

435F

November 23/87 • Application for po-
sition of Deputy Chief of Police of an
Inspector (sealed document)

06/25/90

P. Shoniker

435G

November 3/87 • Application for po-
sition of Deputy Chief of Police of an
Inspector (sealed document)

06/25/90

P. Shoniker

435H

November 10/87 • Application for po-
sition of Deputy Chief of Police of an
Acting Superintendent (sealed docu-
ment)

06/25/90

P. Shoniker

4351

List of applicants that applied for po-
sition of Deputy Chief of Police (sealed
document)

06/25/90

L. Rattray

436

Document regarding Rattray's availa-
bility at Hearings and during adjourn-
ments for preparation

06/25/90

P. Shoniker

437

Excerpts from Statistics Canada
Canadian Centre for Justice Statistics
pertaining to "Offenses released Other-
wise"

06/26/90

W.A. Kelly

438

St. Catharines Standard article • Jan-
uary 7/80 • "Regional Force honoured
by B'nai B'rith - Deputy urges Police
Community involvement"

06/26/90

W.A. Kelly

439

5/. Catharines Standard article • January
27/83 • "Appeal based on Rights Char-
ter"

06/26/90

W.A. Kelly

440

Globe and Mail article • October 18/85
• "Friend in Need? Niagara Police
investigation whether detective helped
man get records illegally."

List of exhibits 443

DATE

FILED BY

EX#

DESCRIPTION

06/26/90

P. Shoniker

441

July 30/84 • Statement of the Honour-
able George Taylor, Q.C., Solicitor Gen-
eral • re: Investigation into NRPF re
Joint Investigation by OPC and OPP

06/27/90

R. Collins

442

BRIEF • Ted Johnson/Robert Richard-
son (For Commission only; sealed
document)

06/27/90

R. Collins

443A

BRIEF • Other Witnesses for the In-
ternal Investigation

06/27/90

R. Collins

443B

BRIEF • Other Witnesses for the In-
ternal Investigation • Pari B

08/08/90

P. Shoniker

444

Declaration of VanderMeer Regarding
Authorization of Wiretap

08/13/90

R. Collins

445A

BRIEF • OPC Internal Investigation of
NRPF • vol. I (page 1 - 503)

08/13/90

R. Collins

445B

BRIEF • OPC Internal Investigation of
NRPF • vol. II (page 504 - 799)

08/13/90

R. Collins

445C

BRIEF • OPC Internal Investigation of
NRPF • vol. Ill (page 800 - 1 145)

08/13/90

R. Collins

445D

BRIEF • OPC Internal Investigation of
NRPF • vol. IV (page 1 146 - 1503)

08/13/90

R. Collins

445E

BRIEF • OPC Internal Investigation of
NRPF • vol. V (page 1504 - 1659)

08/13/90

R. Collins

446A

February 15/83 • St. Catharines Stan-
dard "Civil Rights on the Streets - do
they apply to the young - Kevin McMa-
han."

08/14/90

R. Collins

446B

March 19/83 • St. Catharines Standard
"Pre-trial events denied woman her day
in court" "Policemen want justice too!"

08/14/90

R. Collins

446C

June 15/83 • St. Catharines Standard
"Police Board stifling probe"

08/14/90

R. Collins

446D

June 29/83 • 5/. Catharines Standard
"Their eyes are closed to abuse"

444 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

08/14/90

R. Collins

446E

October 6/83 • St. Catharines Standard
"Police beat, tortured clients, lawyer
claims"

08/14/90

R. Collins

446F

October 1 1/83 • St. Catharines Standard
"Swart urges police probe"

08/14/90

R. Collins

446G

October 1 3/83 • 5/. Catharines Standard
"Internal Review begins into police bru-
tality allegations"

08/14/90

R. Collins

446H

October 14/83 • St. Catharines Standard
"Niagara Regional Police - Province or-
ders probe"

08/13/90

R. Collins

447

Robert Russell's • Friday, July 13/84 -
3:15 notes of phone conversation with
Deputy Chief Bud Walsh

08/13/90

P. Shoniker

448

BRIEF N°. 10 • Other Gun Witnesses

08/14/90

R. Collins

449

Photocopy of Irv Alexander's notes of
Tuesday, March 6/84 • listing items to
be discussed with Gayder

08/15/90

W.A. Kelly

450A

Memorandum • February 3/88 to Acting
Inspector Healey from Sergeant
Peressotti • re: C.

08/15/90

W.A. Kelly

450B

Memorandum • February 4/88 to Inspec-
tor Chambers from Deputy Chief Kelly
• re: C. et al

08/15/90

W.A. Kelly

450C

Memorandum • February 5/88 to Deputy
Chief Kelly from Inspector Chambers •
re: C. et al

10/23/90

R. Collins

451

Daily Log and Telephone Conversation
• April 21/84 • Fulton to Beamer

10/23/90

R. Collins

452

Daily Log and Telephone Conversation
• April 21/84 • Fulton to Sam

10/24/90

R. Collins

453

Telephone Conversation • April 21/84 •
Fulton to Toth

10/24/90

R. Collins

454

Bi-weekly report of Doug Wilkinson •
April 25/84

List of exhibits 445

DATE

FILED BY

EX#

DESCRIPTION

10/29/90

R. Collins

455

Statement of D.B. given to Cornclis
VandcrMeer • September 2/89

10/30/90

R. Collins

455A

Amended copy of D.B. given to Cor-
nelis VanderMeer • September 2/89

11/14/90

K. Dunlop

455B

Original hand-written statement of D.B.
given to Cornelis VanderMeer

10/29/90

R. Collins

456

RCMP file on Sergeant Ryan

10/29/90

R. Collins

457

Brief of allegations by D.B. to Cor Van-
derMeer • September 2/89 • Appendix
A.

10/30/90

R. Collins

458

Royal Canadian Mounted Police receipt
of D.B. regarding Ed Lake.

10/31/90

R. Collins

459

Brief of allegations by D.B. to Cor Van-
derMeer • September 2/89

11/7/90

B. Jones

460

Copy of permit to convey firearms •
March 28/85 • 12:00 p.m. - 5:00 p.m.

1 1/7/90

R. Collins

461

Package of 65 pages, provided to Mc-
Auliffe by D.B. (with the exception of
pages 2-9)

11/8/90

K. Dunlop

462

Letter from Hamilton Spectator and
copies of gun registrations.

11/8/90

K. Dunlop

463

Memorandum to R.A. Kisur from Staff
Sergeant MacLeod • December 21/88

11/13/90

R. Collins

464

Brief • Statements as a result of tes-
timony of D.B.

11/13/90

R. Collins

465

Personnel Interview report of John Pren-
tice • February 23/76

11/13/90

P. Shonikcr

466

3 Names from Shoniker, and 3 from
Berry, written on a paper towel

11/13/90

P. Shoniker

466A

3 Names from Dunlop, 2 identified by
Berry, written on a yellow 'post-it'.

1 1/14/90

R. Collins

467

Staff Sergeant McClarcn's investigation
file in relationship to documents re-
leased to McAuliffe in 1984.

446 List of exhibits

DATE

FILED BY

EX#

DESCRIPTION

11/14/90

K. Dunlop

468

Interview of Ken Davidson by Rocky
Cleveland • May 1/90

11/14/90

R. Collins

469

Investigation of Allegation by D.B. to
Cor VanderMeer • Appendix B

11/20/90

R. Collins

470

Statement by Reg Ellis • May 1/87

11/20/90

R. Collins

471

Brief • Interviews related to retired Staff
Sergeant Robert Richardson and the
Boat Conspiracy

1 1/20/90

R. Collins

472

Brief • 1986 Transfer of Inspector Peter
Kelly as per order 149/86

1 1/20/90

R. Collins

473

Brief • Surveillance on Murray Gayder

1 1/20/90

R. Collins

474

Brief • Alleged wrongdoing • vol. Ill •
Allan Marvin, criminal charges

reserved

D. Pickering

475

Brief • Gerry McAuliffe Broadcast

reserved

R. Collins

476

Routine Order 183/89

01/17/91

P. Shoniker

477A

Letter • December 1/89 to Tony Kelly
from Ed Ralushny • re: Workshop,
November 6-8/89

01/17/91

P. Shoniker

477B

Letter • February 7/90 to Ed Ratushny
from D. Pickering • re: Niagara Re-
gional Police Inquiry

01/17/91

P. Shoniker

477C

Letter • April 2/90 to Ron Brady from
Ed Ralushny • re: Colter Inquiry

01/17/91

P. Shoniker

477D

Letter • April 5/90 to D. Pickering from:
Ed Ratushny • re: Colter Inquiry

01/17/91

P. Shoniker

477E

2 Letters • September 19, 1990 to Tony
Kelly from Ed Ratushny

01/17/91

P. Shoniker

477F

Letter • December 10/90 to Ron Collins
from Ed Ralushny

06/27/91

W.A. Kelly

Fox Memorandum • September 27/89

06/27/91

W.A. Kelly

Additional Materials relating to Fox
Memorandum

06/27/91

W.A. Kelly

Correspondence from October 1990 to
May 15/91

List of exhibits 447

DATE

FILED BY

EX#

DESCRIPTION

06/27/91

W.A. Kelly

Interview of Stephen Sherriff • January
26/90

The above four exhibits were filed in
camera in connection with Mr. Row-
ell's motion

07/8/91

P. Shoniker

478

Letter • May 28/90 to P. Shoniker from
W.A. Kelly

07/8/91

F. Fedorsen

479

Letter • June 12/91 to Justice W.E.C.
Colter from P.J. Kelly

07/8/91

F. Fedorsen

480

Letter • July 2/90 to W.A. Kelly • re:
Confirmation of June 18/91 meeting •
from F.S. Fedorsen

07/8/91

F. Fedorsen

481

Letter • June 6/91 to R.D. Collins from
F.S. Fedorsen

07/8/91

F. Fedorsen

482

Letter • (FAX) • July 5/91 to F.S. Fe-
dorsen • re: Motion of July 2/91 from
R.D. Collins

07/8/91

R. Collins

483

Letter • June 19/91 to Justice Colter
from P. Shoniker

07/8/91

P. Shoniker

484

Brief • Requests for Information In-
terviews from Niagara Regional Board
of Commissioners

07/8/91

P. Shoniker

485

Letter • April 22/89 to W.A. Kelly from
P. Shoniker

07/8/91

P. Kelly

486

Notice of Motion • July 2/91

07/8/91

P. Shoniker

487

Letter • September 1/88 to W.A. Kelly
from F.S. Fedorsen

07/8/91

P. Shoniker

488

Letter • July 30/89 to W.A. Kelly from
P. Shoniker

07/8/91

P. Shoniker

489

Letter • September 26/89 to P. Shoniker
from W.A. Kelly

07/8/91

P. Shoniker

490

Letter • September 28/89 to W.A. Kelly
from P.A. Shoniker

07/8/91

P. Shoniker

491

Reserved by P. Shoniker • Letter of
March 25/91 • Counsel to Shoniker

448 Lizt of exhibits

DATE

FILED BY

EX#

DESCRIPTION

07/8/91

P. Shoniker

492

Letter • March 28/91 to W.A. Kelly
from P.A. Shoniker

07/9/91

R. Collins

493

Brief • Documentation Concerning re-
quests for Board Tapes

07/9/91

R. Collins

494

Letter • July 26/89 to All Counsel from
R.D. Collins

07/9/91

R. Collins

495

reserved • Letter • June 6/91 to
Commissioner Colter from P.A. Shon-
iker

07/9/91

R. Collins

496

reserved • Letter • June 7/91 to Com-
missioner Colter from P.A. Shoniker

07/11/91

R. Collins

497

Press Release of Niagara Regional
Board of Commissioners of Police •
February 1/90

07/11/91

R. Collins

498

Press Release of Niagara Regional
Board of Commissioners of Police •
February 22/90

07/11/91

R. Collins

499

Letter • May 16/91 to W.A. Kelly from
P.A. Shoniker

07/17/91

R. Collins

500

(sealed exhibit) • re: Project Vino •
September 25/85 • Memorandum from
Detective Sergeant Joyce

05/4/92

W.A. Kelly

501

September 7/90 • Letter to The Ho-
nourable D. Peterson from Niagara Re-
gional Board of Commissioners of Po-
lice signed by Mai Woodhouse

05/5/92

W.A. Kelly

502

April 25/90 • Letter to Commissioner
Colter from Niagara Regional Board of
Commissioners of Police signed by De-
nise Taylor

05/7/92

W.A. Kelly

503

Excerpt of August 23/90 • Special Con-
fidential Minutes from Niagara Regional
Board of Commissioners of Police
Meeting (pp. 1 and 2)

List of exhibits 449

DATE

FILED BY

EX#

DESCRIPTION

05/7/92

W.A. Kelly

504

Excerpt of Public Minutes from January
1/90 • Meeting of the Niagara Regional
Board of Commissioners of Police (page
6)

05/7/92

W.A. Kelly

505

December 21/90 Letter from Niagara
Regional Board of Commissioners of
Police signed by Mai Woodhouse to
The Honourable Bob Rae. Fax docu-
mentation for same and copy of Inquiry
transcript • vol. 228

05/7/92

W.A. Kelly

506

April 25/91 Special Confidential Mi-
nutes from Niagara Regional Police Ser-
vices Board Meeting

06/30/92

W.A. Kelly

507

Sealed Exhibit • Portion of Brief pre-
pared by Commission Investigators • re:
Norman Mook (statements) • Filed in
camera

APPENDIX F

CONSULTANTS

Victor MacDonald

The Role of the Niagara Regional Board
of Commissioners of Police

Environics Research

Public Confidence in the Niagara Regional
Police Force

William Hull

Force - Media Relations

R.L. Jackson

Labour - Management Relationships in the
Niagara Regional Police Force

McGinnis & Coutts

Hiring Practices and Promotion Processes

Jean-Paul Brodeur

Public Complaints against the Niagara
Regional Police Force:
Practices, Procedures, Policies

McGinnis i& Coutts

Morale within the Niagara Regional Police
Force

Richard Loreto

Organization of the Niagara Regional
Police Force

Anthony Doob

Disclosure Workshop

APPENDIX G

INQUIRY STAFF

COMMISSION STAFF

Commissioner
Counsel

Associate Counsel
Coordinator
Administrator

The Honourable Mr. Justice W.E.C. Colter
W.A. (Tony) Kelly, Q.C.
Ronald D. Collins
Inge Sardy
Thomas B. Millar

Administrative Assistant Eveline M. Bill

Librarian
Support staff

Ushers

Registrars

Summation Clerks

Ishmael Doku

Michele Sardy

R. Eric Stine

Elizabeth Sinclair

Carol Brown

Linda Dempsey

Marilyn G. Wellington (St. Catharines)

Judy Taylor (St. Catharines)

Cy Cresswell (St. Catharines)
Gwendolyn Hill (St. Catharines)

Patricia W. Laurin (St. Catharines)
Christine Stuart

Mary Stonehouse
Robert Til son

452 Inquiry Staff

SECONDED STAFF

Police Advisors

Metropolitan Toronto Police Force

Staff Inspector Stanley Shillington
Staff Sergeant Rocky Cleveland
Staff Sergeant Winston Weatherbie
Staff Sergeant Robin Breen
Staff Sergeant Robert Ellis
Sergeant John Barbour
Sergeant Richard Baker
Detective Sergeant Donald Sangster
Detective Sergeant Robert Montrose

APPENDIX H

COUNSEL

Commission Counsel

Adams, John

Barnes, William A.

Berry, Carole

CBC and Gerald McAuliffe

D.B.

Deeton, Donald
Ellis, Reginald

Gayder, James A.

Hockey, Billie

W.A. (Tony) Kelly, Q.C.
Kelly, Affleck, Greene

Ronald D. Collins
Fasken Campbell Godfrey

David A. Crowe
Sinclair, Crowe

Represented himself

Faye McWatt

W. Ian Binnie, Q.C.
McCarthy & McCarthy

Clayton Ruby
Ruby & Edwardh

Daniel J. Henry
G. Michael Hughes
CBC

Brian D. Jones

Joseph Wright

Garth Roberts
Dennis Covello
Pong ray, Roberts

F. David Pickering
Edward Kravcik
Reid, McNaughton

Ian J. Roland
R. Stevenson
R.R. Wells
Gowling & Strathy

Faye McWatt

454 Counsel

Kelly, Peter
Lake, Edward

Langan, Richard
Marvin, Allan

McKinney, Joan
Mclinko, Gerry
Miljus, Michael

Moody, James

Moon, Peter
(Globe and Mail)

Newburgh, Joseph

Niagara Regional Police

Association

Niagara Regional Police Force

Represented himself

David Kerr
Chown & Cairns

Brenda V. Sanduiak

J. Ronald Charlebois
Guy Ungaro

Represented herself

Faye McWatt

Barry Matheson, Q.C.
Michael Bonomi
Sullivan, Mahoney

Faye McWatt

P.M. Jacobsen
Paterson, MacDougall

Faye McWatt

R.N. Brady
Robert Miller
Ian Pearson
Bench & Keogh

Peter M. Barr
G.A. Leach
Barr, Giannotti

Dr. Edward Ratushny, Q.C.
University of Ottawa,
General Counsel

Geoffrey P. Spurr
Daniel, Wilson

Todd Ducharme
R. Stephen Mcnzies
Fedorsen, Shoniker

Counsel 455

Niagara Regional Police
Services Board

Onich, George

OPP

OPC

Peressotti, Ronald
Rattray, Lee Frank
Ryan, Gerald

Peter A. Shoniker
Todd Ducharme
Fedorsen, Shoniker

Dr. Edward Ratushny, Q.C.
University of Ottawa,
General Counsel

W.S.F. Ellis, Q.C.
Lainpard, Ellis

W.R. McMurtry, Q.C.
Blaney, McMurtry, St ape Us

Robert P. Armstrong, Q.C.

Michael Penny

Tory, Tory, Deslauriers &

Binnington

Faye McWatt

John Hamilton
Bruce Shilton
Hamilton, Shilton

Dennis W. Brown, Q.C.

John Zarudny

Crown Law Office (Civil)

Dennis W. Brown, Q.C.

John Zarudny

Crown Law Office (Civil)

Represented himself

Charles Ryall
Ryall, Walker

456 Counsel

Shoveller, John

Taylor, Denise
Typer, Edward
VanderMeer, Cornells

Fred S. Fedorsen
Todd Ducharme
R. Stephen Menzies
Fedorsen, Shoniker

Dr. Edward Ratushny, Q.C.
University of Ottawa,
General Counsel

W.R. McMurtry, Q.C.
Blaney, McMurtry, Stapells

Roger D. Yachetti, Q.C.
Yachetti, Lanza <&. Restive

Barry Matheson, Q.C.
Sullivan, Mahoney

Frederick Rowell, Q.C.
Karen Dunlop
David Locke
Robert B. McGee, Q.C.

Anne-Marie Shaw
Hamilton, Shilton

APPENDIX I

INDEX OF RULINGS

Ruling of June 27, 1988: Standing and Funding 459

Ruling of December 13, 1988: Disclosure of Mr. Gayder's

interview 465

Ruling of February 27, 1989: Journalistic privilege -

the compellability of Mr. McAuliffe 476

Ruling of October 11, 1989: Conflict of interest -

Mr. Brady's capacity to appear before this Commission 489

Ruling of October 23, 1989: Conflict of interest -

Mr. Brady's capacity to appear before this Commission 498

Ruling of February 20, 1990: Production of documents -

Board minutes and tapes 510

Ruling of March 5, 1990: Production of documents -

Board minutes and tapes 520

Ruling of July 8, 1991: Production of documents -

Board minutes and tapes 522

Ruling of April 30, 1990: Ability of the Inquiry to

examine potentially criminal conduct - the impact of

the Starr v. Houlden decision 528

Ruling of September 3, 1991: Ability of the Inquiry to

make flndings of misconduct - the Notice requirements of

s.5(2) of the Public Inquiries Act - Sergeant Vander-

Meer's motion 551

Ruling of September 3, 1991: Ability of the Inquiry to

make findings of misconduct - the Notice requirements of

s.5(2) of the Public Inquiries Act - The Board's motion 570

Ruling of the Divisional Court of March 31, 1992: Ability
of the Inquiry to make findings of misconduct - the Notice
requirements of s.5(2) of the Public Inquiries Act 582

RULINGS

Ruling of June 27, 1988: Standing and Funding

This hearing was convened on June 27, 1988, at St. Catharines for the pur-
pose of entertaining applications for standing, and to consider certain mat-
ters concerning the organization and procedures of future hearings.

Mr. Ratushny applied for standing on behalf of the Board of Police
Commissioners and of the Chief Officer and of the Police Force. He filed
a joint brief on behalf of himself as general counsel for the Board, the Chief
and the Force, and, on behalf of Mr. Shoniker as counsel for the Board, Mr.
Fedorsen, as counsel for the Chief, and Mr, Barr as counsel for the Force.
He submitted that the Board, the Chief and the Force would, in general,
probably have the same interests in most of the matters brought before the
Inquiry, but that their separate roles and perspectives in providing police
service required separate representation at times. He pointed out that
whereas the Board lays down policy, the Chief is responsible for day-to-day
operations of the Force, while the Force carries out the orders of the Chief
Further, the Force consists of a wider membership than the Niagara Region
Police Association, since it includes the Senior Officers and two Deputy
Chiefs, which the Association does not, so that, for the Senior Officers to
be represented, representation for the Force is required. The Association
should be represented, but its interest, being primarily in improvement of
conditions of work and salary, and union solidarity, are good for the mem-
bers but not always in the best interests of the image of the Force. Accor-
dingly, he suggests that, on occasion, these roles might be in opposition,
and in the interests of a full Inquiry, could only be properly presented by
separate counsel. He also points out that within the Police Association, there
is no representation for the dissident, but counsel for the Force can repre-
sent any minority views. I accept the submission that the Chiefs interests
are not invariably the same as those of the Board or of the Force, and I
consider I must accept the statement of such an experienced and respon-
sible counsel as Mr. Ratushny (who, as General counsel for all three par-
ties, has knowledge of the matters to be heard by the Inquiry, about which
I have yet to learn) that some resulting conflicts are likely to arise during
the course of the hearings. I accordingly grant standing to the Board of
Commissioners of Police, to the Chief, and to the Force. I assume that there
would not be many instances when the interests of the Chief and the Force
are so much in conflict with those of the Board that they would require
separate representation, and that there would be even fewer occasions when
the interests of the Chief and those of the Force would be in such conflict

460 Rul'ngs

as to require separate representation. I also bear in mind that it is my in-
tention to grant standing to the Niagara Region Police Association, and that
that Association represents all of the nearly 700 members of the Force with
the exception of approximately 27 Senior Officers and two Deputy Chiefs.

Mr. Fedorsen and Mr. Shoniker have been retained, in addition to
Mr. Ratushny, to represent the Board and the Chief respectively. They state
that they can see no problem of conflict in their respective representations,
in spite of the fact that they practice law in partnership, and that, before
being retained, they advised the Board of Commissioners that the Law So-
ciety has been consulted, and that the Society saw no conflict. This rein-
forces my assumption that instances of conflict would not be frequent, and
when present, not very serious, so that the necessity of participation by four
counsel, two representing the Board and one representing the Chief and one
the Force, would be even less frequent. Mr. Shoniker advised that The Hon-
ourable John Wintermeyer has been retained by the Board as an additional
Senior counsel throughout the Inquiry to advise on certain matters. Since
the Board, in its wisdom, and with knowledge of the matters to come before
the Inquiry, has seen the necessity of retaining separate counsel for the
Board, the Chief and the Force, I do not consider I should deny them the
right to appear when required, so long as those counsel ensure that there is
no duplication of effort. As already indicated, I intend to grant full standing
to the Niagara Region Police Association, and in considering whether coun-
sel for the Force should participate in any phase of the Inquiry, it should be
borne in mind by Force counsel that the counsel for the Police Association
will presumably cover almost all of the matters affecting the Force.

Counsel for the various parties, including Inquiry counsel, will be
expected to liaise with one another regarding the matters to be covered from
time to time, and as to the role each will assume in examination and cross-
examination, so that there will be no duplicative or unnecessary appear-
ances. Accordingly, the participation of the Force and the Chief will be lim-
ited to those matters which will not be covered by other counsel. It is hoped
that, with the co-operation of counsel, arguments over the application of
such limitations may be kept to a minimum.

I have no hesitation in fmding that the Niagara Region Police Asso-
ciation should be granted standing. Each of the 12 terms of reference affects
the Association members directly or indirectly, and their co-operation and
input is essential. Their interest in the matters under investigation requires
representation. Standing is accordingly granted to the Niagara Region Police
Association.

Rulings 461

James A. Gayder was a Deputy Chief of the Force from its for-
mation on January 1, 1971, until January 1, 1984, when he was appointed
Chief Officer. On March 4, 1987, he resigned from the Force. He has been
the target of a number of allegations of mismanagement and misconduct,
which will be investigated by this Inquiry. He requires to be represented
and is granted standing.

Cor VanderMeer is a Sergeant of the Force. He is the source of
many of the allegations against Mr. Gayder, and was part of the police team
carrying out an extensive internal investigation in 1987. He is the subject
of a disciplinary charge as the result of his allegedly leaking to the media
the report of that investigation. As an accuser, he has a direct and substan-
tial interest in a number of the terms of reference, namely Numbers 2, 3, 7,
11 and 12. He requires separate representation and is granted standing, li-
mited to matters, in which he was involved, arising under the above listed
terms of reference. His counsel will be expected to liaise with other counsel
to ascertain when his appearance may be required in relation to those mat-
ters.

The Ontario Police Commission and Ontario Provincial Police con-
ducted investigations included in term of reference N°. 8. They thus have
a direct and substantial interest in the Inquiry's investigation of those
investigations, and will be granted standing. It is understood that they will
be represented by a single counsel, who will liaise with other counsel as to
the time when matters in relation to term of reference N°. 8 will be heard.

Mark DeMarco, Boris Petrovici and John Leonard, private citizens
of the Region of Niagara, applied for status in person. It being apparent that
their interest in the Inquiry pertained to private complaints they had made
arising out of their unsatisfactory relationships with individual police of-
ficers, they were advised that they did not qualify for standing, but that they
would be interviewed by Inquiry investigators and would be called as wit-
nesses if their evidence appeared to be relevant to the Inquiry.

It was made clear to those present, and I reiterate it, that the above
rulings are not cast in stone and are subject to revision on further appli-
cation if circumstances change as a result of unforeseen events or of infor-
mation not presently available.

All parties appearing, with the exception of the Ontario Police Com-
mission and Ontario Provincial Police, applied for funding as well as stan-
ding. All claimed their presence at the hearings, or at the relevant parts

462 Rulings

thereof, was essential. They agreed that the Commission had no jurisdiction
to grant funding, but asked that the Commission should request total fun-
ding from the Solicitor General or the Attorney General. Both the Board
and the Police Association stated they had received assurance from the So-
licitor General that "the government will pay" the costs of the parties. They
were advised by me that the Attorney General, in response to a query by
me, had written the Commission indicating that "there is no provision for
funding parties appearing at the Inquiry and no authority for the Commis-
sioner to authorize such. Normally, where funding is to be provided, pro-
vision for it is made in the Inquiry's Order in Council."

The parties, nevertheless, reiterated their request. The Board sub-
mitted that there is an indirect burden, financial and otherwise, imposed on
the parties by co-operating with Commission counsel and staff in preparing
for the hearings, and it is unfair that the entire addition financial burden for
representation before the Inquiry should be borne by the citizens of the Nia-
gara Region alone. It pointed out that many of the terms of reference tran-
scend purely local concerns, and could lead to recommendations of general
application to other regions of the Province. These submissions were adop-
ted by counsel for the Force and Chief.

The Police Association pointed out that it had only 650 to 670
members, including civilians, and that to finance representation at hearings
probably continuing for several months would impose so intolerable a bur-
den on the members that they might decide they could not afford represen-
tation, or perhaps could finance only partial representation.

Counsel for Mr. Gayder and for Sergeant VanderMeer submitted
that their clients simply did not have the funds to provide adequate re-
presentation.

In considering these applications, I have applied the following
criteria:

(1) Has the applicant a direct and substantial interest in the
proceedings, i.e. has he qualified for standing?

(2) Does he need to be represented separately from other parties
having standing?

Rulings 463

(3) In addition to his direct interest, is he liicely to make such
a substantial contribution to the Inquiry that his participation
is necessary for a full and complete investigation?

(4) Has he demonstrated a committal to the interest he repre-
sents?

(5) Does he not have sufficient resources to generate the funds
required to adequately represent that interest?

Applying these criteria to the Board, I find that it qualifies on all but
the last, namely, sufficiency of resources. Obviously, the Region which
funds the Board has the required resources. I appreciate Mr. Ratushny's
submission, that it is unfair to expect the Region, through the Board, to
fund a substantial part of this Inquiry, when the resulting recommendations
may be of some use to the other regions. However, it was the Board which
insisted on the institution of the Inquiry, in the face of governmental resis-
tance, because of the particular situation in the Niagara Region, and it could
be argued that it would be unfair to burden the rest of the Province with the
cost of the Board's participation in addition to the very heavy costs inevi-
tably attendant on the staffing of the Commission and the lengthy investi-
gations of past investigations as demanded by the Board. In any event, sym-
pathetic as I might be to the Board's position, I must face the reality of the
Attorney General's advice to me that there is no provision for funding of
any party. If I have any hope of persuading the Ministry to financially as-
sist some of the impecunious parties, that hope would be put at great risk
were I to recommend funding for not only the parties with limited financial
resources, but also for the several counsel retained by the Board.

I accordingly decline to request the Department of the Attorney Ge-
neral to fund the Board, the Chief, or the Force, but I will not discourage
such funding should these parties wish to make their own submissions to
that Department.

I have no hesitation in recommending to the Attorney General that
full funding be provided for Mr. Gayder and Sergeant VanderMeer for those
parts of the hearings which consultation with Commission counsel deter-
mines to affect their interests. They satisfy all the criteria, and their partic-
ipation is essential to the completeness of the Inquiry.

464 Rulings

I will also recommend at least partial funding for the Police Asso-
ciation. They satisfy all the criteria, although they may have sufficient re-
sources to provide a portion of their costs of participation in the hearings.
I understand from their counsel that the membership numbers between 650
and 670 members, including civilian personnel, and that they have no fund
available for Inquiry expenses. Costs of providing experienced counsel, plus
other expenses for hearings that may well last several months, would inevi-
tably result in a very heavy special assessment upon individual members.
It does not seem fair to expect such contribution from members, the great
majority, perhaps all, of whom have done nothing to cause the problems
that have resulted in the appointment of this Commission of Inquiry. Never-
theless, their participation and co-operation is absolutely essential. As al-
ready pointed out, the Association has a substantial interest in virtually all
of the phases of the Inquiry and its members can presumably provide more
knowledge of the various matters comprising the terms of reference than
can any other source. They will be expected to contribute their time and ef-
fort in providing this information to the Commission investigators. I accord-
ingly will strongly recommend to the Attorney General and Solicitor Gener-
al that funding, to the extent of at least two-thirds of their reasonable costs
of representation at the Inquiry, be provided by the Department. Provision
for taxation of those costs, or those of any other parties funded by the gov-
ernment, according to a tariff to be arranged, can be provided by the Com-
mission.

Rulings 465

Ruling of December 13, 1988:
Disclosure of Mr. Gayder's interview

{Orally) This is an application by the Niagara Regional Board of Police
Commissioners, for disclosure to it of a transcript of a lengthy interrogation
of James A. Gayder, the former chief of the Niagara Regional Police Force,
by investigators employed by this Commission of Inquiry.

At a procedural hearing held in the early days of the Inquiry, the
Board, as well as the Force, the present chief, the Police Association as well
as Mr. Gayder, and one Sergeant VanderMeer, were all granted standing to
take part in these hearings as their interests might appear.

As a matter of courtesy and in the hope of expediting the hearings,
Mr. Kelly, counsel for the Commission, has from the outset, provided all
parties with transcripts or summaries of interviews between Commission in-
vestigators and prospective witnesses, as well as copies of previous investi-
gations and inquiries, and supporting documents of the reports of those in-
quiries, to the extent of five or six large boxes of such material.

To the best of my knowledge, such complete disclosure has seldom,
if ever, been given in similar proceedings.

It has been apparent from the outset that the Board of Police Com-
missioners has taken an adversary approach concerning a number of alle-
gations of misconduct against ex-Chief Gayder. Upon Mr. Gayder being re-
quested to arrange an interview with Commission investigators, counsel for
Mr. Gayder refused to allow such an interview.

Following negotiations between Mr. Gayder's counsel and Commis-
sion counsel, it was fmally agreed that such an interview would be gran-
ted, provided Commission counsel would give an undertaking, that the mat-
ters discussed in the interview would not be disclosed to anyone other than
the investigators and Commission counsel.

Correspondence was exchanged between Mr. Kelly and the Board
counsel about this, and I will refer to that later.

Mr. Kelly gave the undertaking as the only means of obtaining the
interview, which he considered essential in order to allow the investigators
to learn what Mr. Gayder alleged to be the origins of a number of weapons,
allegedly found in the possession or control of Mr. Gayder; such possession,

466 Rulings

allegedly, being improper, as well as many other matters they wished to en-
quire about.

Without such information, the investigators would have had to wait
until after Mr. Gayder gave evidence before they could check out his story,
which would probably have resulted in a lengthy adjournment of the hear-
ings while the alleged sources of the weapons were located and interviewed,
and other matters revealed in his evidence were researched.

Following the undertaking being given, the investigators were al-
lowed to interview Mr. Gayder. Although I don't believe I, as Commis-
sioner, was intended to be excluded from knowing the contents of the inter-
views, nevertheless, so that there could be no question that the undertaking
is being honoured, I have not asked for, nor received any knowledge of the
contents of the interview.

Commission counsel has announced that he intends to call as wit-
nesses, a number of persons who were mentioned by Mr. Gayder as sources
of weapons, but that they will be testifying before Mr. Gayder is called in
order to lay the proper groundwork for examination of Mr. Gayder, as well
as, in fairness, letting him know the evidence against him, so that he will
have an opportunity to answer it.

This application arose during the hearings, as a result of a question
to one of the investigators who interviewed Mr. Gayder. Mr. Shoniker,
counsel for the Board, asked him if he knew how a certain handgun came
into the possession of the Police Force, and the investigator replied that he
knew the answer, but the information would have to be obtained from ano-
ther witness.

Mr. Kelly explained that this was because the information came
from the interview with Mr. Gayder, and the investigator was bound by the
undertaking not to disclose. Mr. Kelly undertook to call Mr. Gayder in due
course, at which time tne information could be elicited from him. Mr. Sho-
niker, however, stated he could not go on because without Mr. Gayder's
statement, he was inhibited in fully cross-examining witnesses, and this ap-
plication resulted.

1 wish to thank Mr. Shoniker for supplying me with copies of the
cases he cited, and for fairly providing precedents that might support the
other side of the argument.

Rulings 467

The first case cited by Mr. Shoniker, and he candidly admitted, it
could be interpreted as being contrary to his interests, was Slavutych v. Ba-
ker et al, [1973], 38 C.R., at p. 306. A decision of the Supreme Court of
Canada which sets out the principle of privilege.

It involved the use made by the Board of Governors of a University
in dismissing one of its professors for allegedly false allegations against
another professor, which allegations were set out in an assessment of the
other professor, solicited by a department head from the professor who was
eventually dismissed. It was requested that the reply be returned in an enve-
lope marked "confidential." The assessment was, however, disclosed to an
arbitration board, and the dismissal of the author of the assessment fol-
lowed. The Court held that due to the confidential marking on the envelope,
the letter was inadmissible in the arbitration proceedings. The Court adopted
the fundamental conditions necessary for the establishment of privilege
against disclosure set out by Wigmore on evidence, third edition, 1961, vol.
8, paragraph 2285 as follows:

1) The communications must originate in a confidence that
they will not be disclosed.

2) This element of confidentiality must be essential to the full
and satisfactory maintenance of the relation between the
parties.

3) The relafion must be one which in the opinion of the com-
munity, ought to be sedulously fostered.

4) The injury that would enure to the relation by the disclosure
of the communications, must be greater than the benefit
thereby gained for the correct disposal of litigation.

I have no difficulty in finding that condition 1 has been satisfied;
that is that Mr. Gayder's interview and the transcript thereof, originated in
a confidence that it would not be disclosed.

I also find that the second condition has been satisfied; that is that
the element of confidentiality is essential to the operation of investigations
such as this one and, in particular, to further interviews with Mr. Gayder of
which this was intended to be only the first of several.

468 Rulings

As to the third condition, surely, it is in the interest of the com-
munity that such confidential interviews be carried out, if they assist in pre-
paring for a judicial inquiry.

As to the fourth condition, since Mr. Kelly is in possession of the
information sought by this application, and is just as capable as any of the
other parties, to use the information for the benefit of the inquiry, and since
disclosure of the information in violation of the undertaking would not only
destroy the chances of further interviews with Mr. Gayder, but would inhi-
bit future investigations, in general, and perhaps lower the public's respect
for the administration of justice, I find this condition has also been fulfilled.

Accordingly, on the authority of Slavutych v. Baker, the transcript
of the interview is inadmissible.

It can be put no better than the quote from Lord Denning, adopted
by the Supreme Court of Canada at p. 313 of the report, as I understand it,

"The essence of this branch of the law, whatever the origin of it
may be, is that a person who has obtained information in confi-
dence, is not allowed to use it as a springboard for activities,
detrimental to the person who made the confidential communi-
cation."

A second type of privilege has been recognized by the Supreme
Court of Canada in Solicitor General of Canada et al v. the Royal Commis-
sion of Inquiry into the confidentiality of health records in Ontario et al,
[1981], 23 C.R. (3d), at p. 338.

The issue in this case was the existence of a police-informer privi-
lege to protect the identity of informers.

At p. 355, Chief Justice Laskin says: "It is recognized, and I have
already alluded to this, that merely because information is confidential does
not ordinarily preclude its disclosure in evidence when commanded in a ju-
dicial proceeding in which it is relevant. A breach of confidence may, of
course, give rise to an action for breach of contract or it may have a tort as-
pect, as where trade secrets are concerned, but no such considerations arise
here. The recent judgment of this Court in Slavutych, supra, shows that con-
fidence may be protected by denying resort to information elicited in confi-
dence, at least where it is sought to use the information against the person
providing it. The present case is not concerned with confidential information

Rulings 469

as such but rather with a claim of privilege in which, as is common to all
such claims, confidence is a key element.

What Slavutych v. Baker et al (1975), 55 D.L.R. (3d) 224, [1976]
1 S.C.R. 254, 38 C.R., 306, established is that the categories of privilege
are not closed.

The Court speaking through Mr. Justice Spence in the Slavutych
case, was of the opinion that the four-fold test propounded in Wigmore on
evidence, provided a satisfactory guide for the recognition of a claim of pri-
vilege.

It is unnecessary, however, to invoke the test here. No doubt can be
cast upon the existence of a police-informer privilege to protect from dis-
closure, the identity of informers whose assistance is important in the inves-
tigation and detection of crime. The rationale is clear enough. Were it not
so, such sources of aid to the police would dry up. The information which
informers may provide is one thing and is, of course, intended to be used
and disclosed. Their identity is something else, unless they choose to reveal
themselves, or are otherwise revealed."

I consider that by analogy, the special privilege could be applied to
the present situation where if confidentiality is not guaranteed, the source
of information would dry up.

In addition to the decided cases, in arriving at my decision, I have
taken into account the following considerations:

Firstly, the applicant submits that refusal to recognize his "right" to
disclosure is a denial of natural justice. I was not provided with any juris-
prudent or precedent that there is such a right to disclosure in an inquiry
under the Public Inquiries Act, and I know of none. But I am aware that it
is the general practice for Commission counsel to supply parties having
standing with summaries of the evidence he expects to lead.

Very full disclosure of the other evidence gleaned by the Commis-
sion, apart from that of Mr. Gayder, has been granted as a matter of cour-
tesy, but that courtesy has not hardened into a right; and I am not persuaded
that counsel have the right to the transcript of Mr. Gayder's interview, or
for that matter, the transcript of the interview of any witness.

470 Rul-ngs

While considering the principle of natural justice, it occurs to me
that Mr. Gayder would have a much greater cause to complain of a denial
of natural justice if, after having been enticed by an undertaking of non-
disclosure into giving information he could not have been compelled to
give, that undertaking is breached, and the contents of his interview are dis-
closed.

Secondly, Mr. Ratushny, general counsel for the Board, was advised
by a letter from Mr. Kelly dated September 13, that the only way he could
obtain permission to interrogate Mr. Gayder was to agree to certain con-
ditions.

The correspondence went like this: On September 9, 1988, Mr. Ro-
land, the then-counsel for Mr. Gayder, wrote to Mr. Kelly stating, in part,
and I quote the relevant parts,

"James Gayder is prepared to be interviewed by you or your staff
prior to the presentation of his testimony to the Inquiry. Mr. Gay-
der is willing to cooperate with Commission counsel, and to submit
to such an interview upon the following conditions:

1) The Government of Ontario indicates that his expenses for
a legal representation are to be paid by it;

2) The interview is to be off the record. As I am sure you are
aware, such interviews in public inquiries are traditionally
treated as off the record. The purpose is to assist Commis-
sion counsel in its work so that he may present the evidence
in a thorough and orderly manner. Mr. Gayder is willing to
provide you with such assistance on the understanding that
it is not to be used for any other purpose.

In particular, we are not prepared to participate in a transcribed
pre-inquiry in which Mr. Gayder's unsworn evidence is then circu-
lated to all counsel. Mr. Gayder will give his evidence on any topic
once at the Inquiry. You and your staff are not to reveal the con-
tents of the interview to any other party or person."

Following receipt of that letter on September 13, 1988, Mr. Kelly
wrote to Mr. Ratushny, and I quote the relevant parts.

Rulings 471

"As I indicated at our informal meeting of September 6, I will pro-
vide disclosure of the documents to be introduced, a list of the
names of witnesses to be called, and the hoped-for order in which
they are to be called, together with the gist of their evidence.

The disclosure of the last of these matters is, of course, subject to
any conditions placed on the Commission with respect to the inter-
viewing of prospective witnesses."

On October 4, 1988, Mr. Ratushny replied to Mr. Kelly,

"In your letter dated September 13, 1988, you indicated that the dis-
closure which you would provide of the gist of the evidence of your
witnesses would be:

'Subject to any conditions placed on the Commission with respect
to the interviewing of prospective witnesses.'

This position raises potentially serious questions about both the
manner in which your investigation is being conducted, and the ef-
fectiveness of disclosure in ensuring that the public hearings will be
conducted in a thorough, as well as an expeditious manner.

Please let us know immediately, which witnesses were interviewed
subject to 'conditions placed on the Commission' and what those
conditions are."

On October 13, 1988, Mr. Kelly wrote to Mr. Ratushny.

"Your letter of October 4, 1988, questions the existence of
conditions which may have been placed on the Commission
concerning the interview of witnesses. Counsel for Mr. Gay-
der has refused to allow Commission investigators or coun-
sel to interview his client except on the following con-
ditions:

1) That the Government of Ontario agrees to pay the legal ex-
penses of Mr. Gayder at a rate acceptable to his counsel;

2) That an interview is to assist Commission counsel in pre-
senting Mr. Gayder's evidence in a thorough and orderly

472 Rulings

manner, and the contents of the interview are not to be re-
vealed to any other person - to any other party or persons.

We have no power to compel Mr. Gayder, or for that matter any-
one else, to take part in an interview with Commission counsel or
investigators.

Faced with this position, we have one of two choices: a) Not to
interview Mr. Gayder; or b) interview him on those conditions.
We thought it appropriate that we interview him on that basis in
order to have an understanding of his position.

The matter is somewhat hypothetical since the issue of funding
was not resolved until Wednesday, October 12, and as a result,
counsel for Mr. Gayder has refused to let us interview him on
other matters except for the Parnell tire question, the Parnell paint
job, and the silver tea service."

That, then, is the correspondence on the subject.

A public hearing was held on October 17 which Mr. Ratushny and
other Board counsel attended, as well as the other counsel involved; and at
that hearing, many matters were discussed, but no protest was made concer-
ning Mr. Kelly's proposed conditional interview with Mr. Gayder, although
the correspondence was discussed, and the correspondence concerning the
conditional interviews was filed by Board counsel as an exhibit. The inter-
views, subject to the non-disclosure undertaking, then proceeded on No-
vember 3, following by some two weeks the hearing on October 17.

Mr. Gayder having been persuaded to give his interview on the basis
of an undertaking of which Board counsel was notified well before the in-
terview was proceeded with, without any protest from the Board, it would
seem to me that the Board is now estopped from attacking the undertaking.

Mr. Shoniker argues that the letter of October 4, viewing with alarm
the mention of conditions, is such a protest. But the request for further in-
formation contained in that letter, and which further information was given
on October 13 without any further dissent, negates that submission, and
would leave the impression that the proposed course might be acceptable,
and the following silence, even at the hearing of October 17 and for two
weeks thereafter, could well be taken as consent.

Rulings 473

Thirdly, many of the counsel on this Inquiry, and there are ten or
eleven of them, seem to have lost sight of the fact that this is an Inquiry
into the operation and administration of the Niagara Regional Police Force,
and not a trial of criminal charges against particular individuals. An inquiry
under the Public Inquiries Act is not an adversarial process, although an
observer of the Inquiry up till now might be excused for thinking so.

This Inquiry has two very capable counsel whose role is to bring out
under Oath, all information relevant to the terms of reference, and to dis-
play it to the public as well as to me as Commissioner.

Counsel for parties granted standing may question witnesses and
tender evidence, if they so wish in order to call attention to their particular
interests or points of view, but this is merely supplementary to the evidence
provided by Commission counsel.

Commission counsel represent the public, not any particular interest,
and the public relies on them to ensure that an inquiry is full and complete.
They have full knowledge of all the information assembled by the investi-
gators, including the interview with Mr. Gayder. They are in a position to
bring out all the evidence pertinent to the issues without favour to any par-
ty, and I have full confidence that they will do so.

Mr. Shoniker has on several occasions, pronounced his admiration
for Mr. Kelly's competence and fairness, and for the expertise and
thoroughness of the Commission investigators, so it would seem that he
agrees with me.

If after hearing Mr. Gayder' s evidence, when he is eventually called
to testify, counsel can satisfy me that there is pertinent information that
should have been elicited from some previous witness which Mr. Kelly fail-
ed to bring out, and which counsel could not ask about because he did not
have access to Mr. Gayder' s interview, I have already advised him that such
witnesses will be called, and I repeat that assurance.

Fourthly, one of the first moral lessons we learn as children is "a
promise is a promise;" that is, that it must be honoured. And as lawyers,
that an undertaking is sacred and inviolable. There may be extraordinary
circumstances such as a life and death situation where an undertaking must
be broken, or where the person giving the undertaking has no right to give
it. That is not the case here.

474 Rulings

Mr. Kelly, representing this Commission of Inquiry called by The
Queen, represented by the Lieutenant Governor, thus giving the status of a
Royal Commission, has given a solemn undertaking that if Mr. Gayder
would assist the Commission in allowing the Inquiry investigators to inter-
rogate him, the information so obtained would be used only for the pur-
poses of their investigations to allow them to contact and interview persons,
to check on a story, and to investigate avenues they might not have other-
wise known about. They, that is Mr. Kelly and the Commissioners — and
the investigators, for their part, would not disclose that information to any
other person.

I am not prepared to order Mr. Kelly or the investigators to breach
that firm undertaking. In my view, to do so, would bring the administration
of justice into disrepute in the eyes of the public.

Fifthly, although it is not as important a consideration as those I
have already mentioned, I must bear in mind the effect on further interviews
with Mr. Gayder, and on future Commissions of Inquiry, should I hold that
an undertaking not to disclose is not inviable. It is in the interest of justice
that information not otherwise obtainable, should be able to be obtained
subject to reasonable conditions guaranteed to the reluctant witness.

As I have already noted for similar reasons, the Supreme Court of
Canada has consistently held that guarantees of non-disclosure of the
identity of informers are proper, despite vigorous attacks on the ground that
it inhibits cross-examination as to the reliability of the informant.

Mr. Brady raised an objection to the giving of an undertaking of
confidentiality, on the ground that nowhere in the Public Inquiries Act is
such an undertaking authorized.

Section 17, subsection (1) of the Act, provides simply that, a Com-
mission may in writing appoint a person to make an investigation, relevant
to the subject matter of the inquiry it is conducting. No direction as to the
mode of investigation is given. Not even the taking of a statement is ex-
plicitly authorized.

The means of investigation are left up to the Commission. The fact
that there is no express authorization for a particular method of
investigation, does certainly not of itself, preclude whatever method of
investigation the Commission may adopt.

Rulings 475

One of the counsel asked the rhetorical question, "Who is controlling
the evidence, Mr. Gayder or Mr. Kelly?" I can only assume that the sugges-
tion arose out of the heat of battle and without due thought.

Evidence is information sworn to under Oath in Court. When Mr.
Gayder is called as a witness, counsel can be assured that he will not be
controlling the evidence. All relevant evidence will be brought out.

What we are talking about in this application is information, not evi-
dence. Mr. Gayder has a constitutional right to give no information until he
is sworn in as a witness. He has the right to remain silent. It is an imme-
morial right that lawyers will defend to the death, and I would be surprised
to hear a suggestion that there is something improper about it.

It has been amply established that had no undertaking of
confidentiality been given, no interview with Mr. Gayder would have been
forthcoming, and could not have been forced from him, and no one, not
even Commission counsel, would have the information so eagerly sought
by the applicant.

The bottom line, so far as I am concerned, is that no one has ex-
plained, although given every opportunity, how the interests of the inquiry
or, indeed, of any of the parties including the applicant, would have been
advanced had Commission counsel refused Mr. Gayder's condition.

That, however, would be the inevitable result at a ruling against the
sanctity of an undertaking of confidentiality been in effect on November 3
before that interview was undertaken.

For the above reasons, I dismiss the application.

476 Rulings

Ruling of February 27, 1989: Journalistic privilege
- the compellability of Mr. McAuliffe

(Orally) This is an application by tlie Canadian Broadcasting Corporation
to quash a subpoena served on Gerry McAuliffe, a CBC reporter, requiring
him to give evidence at this Inquiry, and to produce documents, tapes, and
writings, etcetera, in his possession or control relating to communications
with James A. Gayder between 1982 and 1987.

On, or about, July 3, 1984, CBC radio made a broadcast heard
throughout the Niagara Peninsula, and perhaps a wider coverage, alleging
irregularities within the Niagara Regional Police Force. From the lead-in or
narrator of the broadcast, it appears that such broadcasts had been con-
tinuing for some time in the past. The material parts of the broadcast are as
follows; the lead-in announcer states:

"The Chief of the Niagara Regional Police Force, Jim Gayder, has
been under investigation for a year now by the Solicitor General's
department. The probe stems from a series of stories by CBC radio
news. Chief Gayder has been breaking the guns laws to make it
easier for local businessmen and friends to buy handguns.

There has been a new development. The CBC has obtained copies
of RCMP documents that show Chief Gayder owns 60 restricted
handguns. He says he got many of them from his friends. Gerry
McAuliffe has more on the story."

And then Mr. McAuliffe came on.

"The Chief of the Niagara Force says he collects stamps, beer
cans, and guns. Jim Gayder says no one has ever questioned him
about his beer cans or his stamps, but his guns are a different
matter. Chief Gayder has been the man in charge of firearm
registrations in the Niagara peninsula for more than a decade, and
he has other gun related duties as well. The police gather up about
a 150 handguns and rifles every year.

They come from a variety of sources; murder cases, armed rob-
beries, suicides, people caught with un-registered weapons confis-
cated by the police, and guns from people who just want to get rid
of them so they turn them over to the police department for dis-

Rulings 477

posal. Some of the guns are junk, others are expensive collector
items.

Jim Gayder says he never acquired any of his guns from the po-
lice department. He says his 60 registered handguns are mostly
junk, and he says he got them from friends for just a few dollars
each.

Copies of RCMP documents obtained by the CBC indicate Chief
Gayder' s guns to be worth thousands of dollars. Many of them are
high-powered weapons, 9 millimetre Mausers, U.S. Army guns,
Colt .45's, .38's, and assorted others. The documents show that 13
of the guns were originally registered to the old Welland Police
Department; they are now registered to Chief Gayder."

That is the material part of that broadcast, and then two days later
on July 5, 1984, there was a follow-up broadcast, and the material parts of
that are as follows. The narrator or lead-in stated:

"The Police Chief from the Niagara Region says a new policy was
introduced five years ago to tighten control of guns confiscated by
the police. Chief Gayder says guns are now chopped up, then mel-
ted down at a local smelter, but members of the Force say that if
there is a new policy they haven't been told about it. Gerry Mc-
Auliffe has this report."

Then Mr. McAuliffe comes on:

"There is a good reason rank-and-file members of the Force are
unaware of the department's gun policy; it's never been put in
writing. Superintendent Frank Parkhouse says the order was a
verbal one, and made known only to the Force's senior admin-
istrators. The handling of guns by Niagara Regional Police has
become a public issue twice in the last year. Chief Jim Gayder
told CBC radio news he has ignored the stringent requirements of
the Criminal Code when registering guns for his friends and local
businessmen.

One gun, he supposedly checked out for one businessman, was
found by the CBC to be stolen. Chief Gayder gave the stolen gun
back to the man without registering it. That meant that the busi-
nessman was then in possession of an unregistered firearm; that

478 Rulings

is a criminal offense that carries a sentence of up to five years in
jail."

Tiien the broadcast goes on referring to another person who is not
a police officer.

It is, I suggest, rather significant that the broadcast takes credit for
causing the Solicitor General to call an Ontario Police Commission investi-
gation, which accords with the submission of Police Commission counsel,
that Mr. McAuliffe's broadcasts were responsible to a large degree for the
present inquiry, and therefore Mr. McAuliffe should be required to give evi-
dence.

In any event, apparently as a result of the CBC broadcasts, and ru-
mours of irregularities in the operation of the Niagara Regional Police For-
ce, and the resulting public agitation, the Niagara Regional Police Commis-
sion in the fall of 1987 requested the Solicitor General of Ontario to initi-
ate a public inquiry. On March 25, 1988, the Lieutenant Governor in Coun-
cil ordered that a Commission be issued to me "to inquire, report upon, and
make recommendations with respect to the operation and administration of
the Niagara Regional Police Force since its creation in 1971," with parti-
cular regard to 1 2 areas of reference.

One of these related to improprieties or misconduct on the part of
members of the Force. And another related to the propriety, efficiency, and
completeness of any investigation into the Niagara Regional Police Force
since its creation, which would include the Ontario Police Commission in-
vestigation mentioned earlier.

Two of the paragraphs of the preamble to the Lieutenant Governor's
order give some indication of the effect media reports and rumours, and
broadcasts such as those of the CBC, have had on the public's perception
of their Police Force.

The Order in Council reads at its commencement: "On the recom-
mendation of the undersigned, the Lieutenant Governor, by and with the
advice and concurrence of the Executive Council, orders that; whereas
concern has been expressed in relation to the operation and administration
of the Niagara Regional Police Force, and whereas the expression of such
concerns may have resulted in a loss of public confidence in the ability of
the Force to discharge its law enforcement responsibilities, and whereas the
Niagara Regional Board of Commissioners of Police has asked the

Rulings 479

government of Ontario to initiate a public inquiry into the operation and
administration of the Force, and whereas the government of Ontario is of
the view that there is a need for the pubHc and members of the Force to
have confidence in the operation and administration of the Force," and then
it goes on to order the inquiry. It sets out the rather long series of specific
references.

With that baci<ground Mr. Keily, as Commission counsel, served
upon Mr. McAuliffe the subpoena earlier referred to. It is not an oppressive
or wide-ranging subpoena. It follows the usual form, and simply requires,
as such subpoenas normally do, that the witness produce documents, tapes,
relating to the subject of his evidence; namely, communications with James
Gayder.

Mr. Kelly stated that during his submissions on this application that
his purpose in calling Mr. McAuliffe, as a witness, was to ascertain whether
Mr. McAuliffe had any additional information that would assist this Com-
mission in carrying out its duties as set out in the terms of reference, par-
ticularly in relation to Mr. Gayder' s alleged improper possession of hand-
guns, and specifically in relation to the information he had obtained from
Mr. Gayder in the course of any interviews he had with him leading up to
his broadcasts.

Mr. Kelly stated that he did not intend to ask Mr. McAuliffe to dis-
close sources of his information. Indeed, the source of the information he
intended to inquire about was already known; that is, it was Mr. Gayder.
Nor can there be any question of confidentiality. CBC counsel does not sug-
gest there is, and Mr. Gayder's counsel has specifically stated that there was
none in relation to his client.

I take it to be common ground amongst all counsel here, including
I believe CBC counsel, that as the law of Canada presently stands in re-
lation to communications between a journalist or reporter and a person he
interviews, apart from interlocutory applications and libel and slander ac-
tions, there is no common law privilege giving the interviewer the right: a)
to refuse to be sworn, b) to refuse to give evidence once sworn, and c) to
refuse to disclose sources, and as well that there is no such statutory pri-
vilege unless section 2, sub s. (b) of the Canadian Charter of Rights and
Freedoms can be so interpreted.

The relevant parts of section 2 of the Canadian Charter of Rights
and Freedoms reads as follows:

480 Rulings

Everyone has the following fundamental freedoms; (b) freedom of
thought, belief, opinion, and expression including freedom of the
press and other media of communications.

Mr. Henry submits that section 2, sub-section B, was intended to en-
sure the integrity of the journalistic process, and that includes the jour-
nalist's privilege of non-disclosure of information received from any source,
as well as identification of the source itself. He argues that otherwise a
member of the media might be perceived as an "investigative arm of autho-
rity," and that this might cause prospective sources of information to be re-
luctant to give information to "an investigative journalist." As well, con-
cern, re future disclosure, might affect the way the reporter frames his
questions, and affect his decision as to retention or destruction of docu-
ments he obtains, and might even affect the accuracy of his reporting should
he decide that it is unwise to make notes for fear of being forced to disclose
them.

In the abstract, this argument has some appeal, although I am some-
what concerned about the suggestion that a reporter, such as Mr. McAuliffe,
would consider imperiling the accuracy of his reports by not taking notes
in order to frustrate later attempts to make him disclose them, or that he
might selectively edit his notes for the same reason.

If, as Mr. Henry submits, a thought not written down is a thought
potentially forgotten, the question arises did Mr. McAuliffe not write down
some admissions, or some exculpatory statements, he received from Mr.
Gayder for fear he might later have to produce his notes, and thus he might
have forgotten parts of what he heard. If there is such a likelihood, surely
Commission counsel and Mr. Gayder's counsel should be allowed an oppor-
tunity to probe Mr. McAuliffe' s recollection of important information he
may have temporarily forgotten, because they were omitted from his notes.

This application has been argued on the basis of examining Mr. Mc-
Auliffe in relation to his two broadcasts of July 3 and 4, 1984; portions of
which I have already read, concerning Mr. Gayder's alleged breach of gun
laws. There were many other broadcasts by Mr. McAuliffe imputing mis-
conduct and criminal activity to members of the Niagara Regional Police
Force in areas other than guns, which undoubtedly played a large part in
creating a loss of public confidence in the Force, and were probably partly
responsible for the calling of this Inquiry.

Rulings 481

I have what purports to be transcripts of 20 of these, and there may
be more. It may be that they will be relevant to other phases of this Inquiry,
and that any ruling I make on this application will affect counsel's right to
examine Mr. McAuliffe in relation to them. At least one of the allegations,
which names no names, was so general as to blacken the reputation of the
whole Force.

For example, one broadcast which apparently occurred, according to
the contents of it, the day after Mr. Gayder resigned as Chief stated:

"There were instances of policemen selling extra brand-new
uniforms, shirts, boots, gun belts, and billy clubs to any one with a
buck."

There were several more such allegations which I do not wish to
repeat at this stage.

If Mr. Henry's submissions are correct, then Mr. McAuliffe cannot
be asked to give any further information he may have as to such alleged
criminal conduct. And the mandate of this Inquiry, under reference N°. 8,
to investigate and report upon misconduct on the part of members of the
Force will be frustrated; and this and other damning indictments of the
Force which were publicly broadcast by the CBC will be left hanging in the
air in the minds of the public.

Nevertheless, in spite of the potential damage to this Inquiry if it is
unable to investigate Mr. McAuliffe' s allegations and other information by
calling him as a witness, I must now consider whether there is a special pri-
vilege in Canadian law that protects Mr. McAuliffe from being required to
support his allegations under oath.

Mr. Henry refers to Pacific Press Ltd. and the Queen et ai, 37 CCC,
(2d) at p. 487. And Descoteaux et al. v. Mierzwinski and the Attorney Gen-
eral of Quebec et al, 70 CCC, (2d), at p. 385, which cases set out that a
search warrant should not be issued unless the applicant establishes first
whether or not a reasonable alternative source of obtaining the information
was available, and second if available that reasonable steps have been taken
to obtain it from the alternative source.

This same submission was put forward in Re Canada Post
Corporation and the Canadian Union of Postal Workers, 19 LAC, (3d), at
p. 361; where the arbitrator, Professor K. P. Swan, rejected it because both

482 Rulings

of the cases quoted dealt with the issuances of search warrants, which are
significantly different from subpoenas. I adopt his reasoning without
repeating it here.

As Chief Justice Nemetz, as he then was, said at p. 487 of the
Pacific Press case, referring to search warrants:

"From time immemorial common law courts have been zealous in
protecting citizens from the unwarranted use of this extraordinary re-
medy."

In my view, a subpoena does not fall into that category.

In any event, Mr. Parkhouse, the only alternative source apart from
Mr. Gayder himself as to the interview that led to the broadcasts in
question, has already given evidence and it contradicts in some areas Mr.
McAuliffe's broadcast statement; particularly, that "Mr. Gayder stated that
he has never acquired any of his guns from the police department," at least
in so far as Mr. Gayder said (according to Mr. Parkhouse) that he had
acquired guns from the Welland Police Department.

Since one of the fundamental questions in this phase of the Inquiry
is whether Mr. Gayder did acquire guns from the police department, and if
so whether the acquisition was proper, this conflict cries out for a resolution
by the cross-examination of all three participants. Since, Mr. Gayder is the
target of the allegations by Mr. McAuliffe, it would not only be unfair to
force Mr. Gayder to give evidence without knowing what Mr. McAuliffe's
evidence might be should Mr. McAuliffe be required to give evidence later,
but since Mr. Gayder's credibility is bound to be called into question, this
Inquiry should first have the benefit of Mr. McAuliffe's evidence which is
apparently different from that of Mr. Parkhouse, and quite possibly from
that of Mr. Gayder's.

The only two Canadian cases dealing with section 2(b) of the
Charter in relation to privileges of journalists, to which I have been referred
by counsel, both hold that that section does not aid journalists who resist
attempts to force them to divulge information gained during their investi-
gations.

In Re Canada Post Corporation and the Canadian Union of Postal
Workers, which I have already referred to. Professor Swan stated at p. 372:

Rulings 483

When one reviews the jurisprudence in this country, in the United
Kingdom and, perhaps more relevant to the situation in Canada after
the Canadian Charter of Rights and Freedoms, in the United States,
whatever may be the dicta in specific cases there is simply no gen-
eral privilege for journalists, no right for members of the journalistic
profession to decline either to attend as a witness in a particular pro-
ceeding or to refuse to answer a particular question simply by reason
of their employment as journalists.

At p. 373, Mr. Swan also quotes from Lord Denning in the Attorney
General v. Mulholland, 1963, 2 Q.B. 477, where he says:

"Take the clergyman, the banker or the medical man. None of these
is entitled to refuse to answer when directed to by a judge. Let me
not be mistaken. The judge will respect the confidences which each
member of these honourable professions receives in the course of it,
and will not direct them to answer unless not only is it relevant but
also it is proper and, indeed, necessary question in the course of
justice to be put and answered. A judge is the person entrusted, on
behalf of the community, to weigh these conflicting interests — to
weigh on the one hand the respect due to confidence in the pro-
fession and on the other hand the ultimate interest of the community
in justice being done or, in the case of a tribunal such as this, in a
proper investigation being made into these serious allegations. If the
judge determines that a journalist must answer, then no privilege
will avail him to refuse."

Professor Swan goes on to say at p. 377:

"As I read these cases, it is an appropriate interpretation of s. 2(b)
of the Charter that before a subpoena issued to a journalist qua
journalist can constitute a prima facie breach of the freedom of the
press, there must be a demonstration of some affirmative harm or
danger to the institutional interests of the press, rather than merely
inconvenience or annoyance to individual journalists."

As to section 2(b) of the Charter, he says at p. 375:

"Given the way in which s. 2(b) is written, I am of the view that it
should be seen as a broad right to intellectual freedom, and not as
a special concession to any class of individuals. Nor do I see that
broad proposition in any way cast in doubt by any of the important

484 Rulings

cases which have dealt with the freedom of the press since the
inception of the Charter. I think that all of those cases have treated
press freedom as a part of a much broader freedom belonging to
everyone: a freedom to be informed, a freedom to inquire, and a
freedom to express the outcome of that information and that in-
quiry."

I have read at some length from Professor Swan's ruling in the
Canada Post case, because he says it much better than I could. I agree with
his observations, and they were agreed with by the Alberta Court of
Queen's Bench, and the Court of Appeal of Alberta in Re Moysa and
Labour Relations Board et al., 28 D.L.R, (4d), p. 140; where the Queen's
Bench held that there is no privilege at common law, or under section 2(b)
of the Charter, justifying a journalist's refusal to testify, not only as to
information received during an interview, but even as to disclosure of
sources. The decision was upheld by the Alberta Court of Appeal, and the
reasoning of the Queen's Bench was adopted, and a further appeal to the
Supreme Court of Canada is expected to be heard in the near future.

The trial judge, at p. 147, after referring to Professor Swan's inter-
pretation of section 2(b) in the Canada Post case, which I quoted a moment
ago, says:

"Viewed in that light, compelling a reporter to testify could scarcely
be regarded as infringing upon her rights to think, believe, express
herself and have opinions, including the use of the press and other
media of communication for those purposes."

The court goes on at p. 148:

I am inclined to believe that s.2 of the Charter gives everyone free-
dom to use the press and other media of communication to express
their thoughts, beliefs and opinions and to have their thoughts,
beliefs and opinions freely informed through the agency of the press
and other media of communication. The fact that I as an individual
may be compelled by a duly authorized tribunal to breach confiden-
tiality in the interests of the due administration of justice does not
impinge upon my freedom to think as 1 like, to believe what I want,
to have such opinions as I want, nor to express myself as I wish.
Nor does it make me any the less free to have access to the press
and other media of communication in the exercise of those four fun-
damental freedoms.

Rulings 485

Even if the press enjoys special status within s. 2 as a class, and I
hold that it does not, its members enjoy no privilege, qualified or
otherwise, to refuse to testify, even as to their sources, before the
board.

The Alberta Court of Appeal at 43 D.L.R., (4d), at p. 159, in agree-
ing with the trial judge quoted the provisions of s. 2(b) of the Charter of
Rights, and went on to say at p. 160:

"The declaration does not advance the appellants claimed immunity
to testimonial compulsion here. The freedom expressed has been
held to protect and guarantee expression of thought, belief, and
opinions for all Canadians including the press and other media.
Beyond that we think that even the most liberal and purposive appli-
cation of the wording in s. 2(b) could not even by necessary intend-
ment create the exclusionary enclave pursued by the appellant in this
case."

As I have observed that case has been appealed in the Supreme
Court of Canada and should be heard next month, but at the moment that
is the law as it exists in Canada in my opinion.

I adopt the reasoning and conclusions of these cases, but I also con-
sider that because of the importance of freedom of the press and the pos-
sible "chilling effect" that such rulings might have on the fiow of infor-
mation to the media, a journalist should only be required to testify as to in-
formation gained by him if the information expected to be elicited is highly
important to the inquiry, and this should be considered on a case by case,
or situation by situation, basis.

The peculiar nature of the present Inquiry must be appreciated in
considering the importance of its search for information. All the cases
quoted were in an adversarial forum, where the search for information was
to further the interests of a particular party, and was only incidental to the
main issues.

To the contrary, the very essence of this inquiry, as its name implies
and as its Order in Council mandates, is to "inquire into and report upon,
and make recommendations with a respect to" some twelve items of refer-
ence. It is a very different animal from a trial or an arbitration. It is not for
the benefit of a few litigants; it is to inquire into and investigate on behalf
of the public.

486 Rulings

If it is limited in its investigations by a claim of privilege, that pri-
vilege must be affirmatively established and be of overwhelming importance
to the person claiming it. I have heard no evidence of great harm that will
ensue if Mr. McAuliffe is required to testify, beyond a matter of a breach
of some journalistic principle.

Mr. Henry says Mr. McAuliffe is willing and anxious to testify in
order to assist this Inquiry, but he owes a greater allegiance to the group he
represents, the journalists, in upholding their claimed privilege of non-
disclosure. If their claim is that they have a blanket privilege to such effect,
I point out that no court has accepted such a proposition.

If I am wrong, and section 2(b) of the Charter does grant them such
a privilege, then in the present case I would have held that under section 1
that privilege is subject to a reasonable limit requiring Mr. McAuliffe to
disclose any information he has received which is relevant to the references
I am required by Order in Council to inquire into, and that that limitation
meets the proportionality test set out in the Oakes case to which Mr. Henry
referred.

Professor Ratushny, as an Officer of the court and of this Inquiry,
has stated that at a December 1988 meeting between Mr. McAuliffe and his
counsel and the counsel having status at this Inquiry, Mr. McAuliffe stated
that he had relevant information of wrongdoing within the Niagara Region-
al Police Force, which went far beyond the broadcast material, and it was
much more than the Inquiry investigators knew about. I take that then as
valid evidence, it coming from Professor Ratushny.

It has been stated many times by all counsel that the main purpose
of this Inquiry is to once and for all ferret out and report upon all matters
of misconduct within the Niagara Regional Police Force, and to avoid the
widely circulated criticism of several past investigations that they were not
efficient, complete, and open to the public according to the public view.

The public now being aware that Mr. McAuliffe has stated that he
has further information of wrongdoing not yet disclosed, irreparable harm
will be done to the image of this Inquiry if this information is left un-
investigated. If Mr. McAuliffe has no such information, he need only say
so under oath. If he has such information, he cannot refuse to disclose it,
and by doing so discredit this Inquiry. There can be no even balance be-
tween the interests of the public in ferreting out wrongdoing though this
Inquiry, and Mr. McAuliffe's real or claimed privilege in keeping it secret.

Rulings 487

Mr. Henry asks "where is the proof of the necessity of examining
Mr. McAuliffe," the necessity, of course, is that the unique nature of this
Inquiry requires that the public be satisfied that every source of information
of possible wrongdoing has been explored, or if you will, that no stone has
been left unturned.

Mr. Henry has also asked that this Inquiry give respect to the journa-
listic process. As the Inquiry Commissioner, I think I have throughout the
several months this Inquiry has been in existence, shown respect for the
journalistic process, and for the many representatives of the media. I have
allowed TV coverage. I have granted interviews whenever asked. I have ar-
ranged for a transcript of each days proceedings to be available to the me-
dia as soon as it is available to me. And to date, I have received no com-
plaints from any journalist, although I have had to limit the number of mi-
crophones, and cameras, with a view to not interrupting the proceedings of
this Inquiry. But this respect should work both ways; it is not a one-way
street.

I have already indicated how, because of the wide public coverage
these proceedings receive due at least in part to the co-operation we have
given television, radio, and the press, the image of this Inquiry will be har-
med if some important avenue of investigation is left untapped. And I ask
Mr. McAuliffe and the Canadian Broadcasting Corporation to show respect
for, and co-operation with, this Inquiry in sharing with us whatever rele-
vant information they may have to further the interests of the Inquiry.

Surely the interests of the public, which have been referred to so
often in argument, justify temporarily suspending the journalist's sacred
principle of non-disclosure in order to assist this public Inquiry, and if that
were done I am sure that Mr. McAuliffe's colleagues would understand.

In arriving at their decision, I would ask CBC counsel and Mr.
McAuliffe to consider the impression that will be left on the watching,
listening, or reading public if it appears that the publicly-funded CBC is, on
a matter of principle, frustrating the effects of this publicly-funded Inquiry
to investigate every possible avenue of information about wrongdoing.

If, in spite of my ruling, Mr. McAuliffe feels obliged to refuse to
take the oath and to give evidence, then that is going to be the result. I am
sure that to the public, as it apparently is to counsel other than CBC
counsel, and certainly as it is to me that, it is unbelievable that one public

488 Rulings

body would refuse to co-operate with another public body in serving the
interests of that same public.

I rule that the subpoena will not be quashed, and that there is no pri-
vilege protecting Mr. McAuliffe from being sworn as a witness and from
giving evidence. I do appeal to the parties to try to work out some compro-
mise that will protect both the integrity of this Commission and the integrity
of the media.

My own view is that despite the lack of any privilege, the question
of compelling journalists to testify has to be considered on a case to case,
and situation to situation, basis; just as judges now do in the case of
psychiatrists, priests, and others. The same course could be followed if Mr.
McAuliffe is sworn and answers some questions, but refuses to answer
others. And also, in assisting him in that, I suggest that his notes could be
edited in conjunction with his counsel and Commission counsel to eliminate
all references that may be personal thoughts, or that may not be strictly
relevant to the purposes of this inquiry.

Rulings 489

Ruling of October 11, 1989: Conflict of interest - Mr. Brady's
capacity to appear before this Commission

{Orally) I have decided that because of the pubHc interest in this Inquiry
that although the submissions in connection with what I am about to give
reasons on was held in camera, that my reasons for my ruling should be gi-
ven in public, so that the public can realize or perhaps understand to some
extent at least as to what went on in the absence of the public and the me-
dia.

This Inquiry is about to enter on a new phase, that is, under
reference N°. 8 of the Order in Council: To inquire into and report upon the
propriety, efficiency, and completeness of the investigation carried out by
an Internal Investigation Team of the Niagara Regional Police Force.

This team was set up in, I believe, February of 1987, or thereabouts,
by Acting Chief John Shoveller following the resignation of former Chief
of Police, James Gayder, with the object of investigating wrongdoing or
misconduct within the Force, as Chief Shoveller expressed it.

Acting Deputy Chief James Moody was placed in charge and he
added to his team: Staff Sergeant Joseph Newburgh, Sergeant Cor
VanderMeer, Sergeant Gerald Melinko, Constable George Onich, Ms Carol
Berry, and Ms Billie Hockey.

Sergeant VanderMeer was granted standing at the outset of this
Inquiry, and is presently represented by Ms Karen Dunlop.

A few weeks ago, Ms Faye McWatt applied for standing for the
other members of the Internal Investigation Team. This was granted, and
Ms McWatt was retained as counsel for those members, other than Sergeant
VanderMeer.

Mr. Ronald Brady has represented the Niagara Regional Police Asso-
ciation since these hearings commenced in November of 1988.

At the opening of the hearing yesterday, Ms McWatt applied for an
order removing Mr. Brady as counsel for the Police Association, for at least
the duration of the present phase, on the grounds of conflict of interest. The
alleged conflict arises out of the fact that Mr. Brady has, in the past but
since the Internal Investigation Team was formed, acted as counsel for

490 Rulhgs

Sergeant Melinko and Constable Onich in unrelated legal matters, during
which time he received confidential information relating to the internal
inquiry.

It is common ground that the Police Association is interested in in-
quiring into the propriety, efficiency, and completeness of the internal in-
quiry, since the Force's reputation may be affected; and that Mr. Brady as
its counsel would be allowed to examine witnesses, including members of
the Internal Investigation Team.

Upon Commission counsel raising the question of whether Mr.
Onich and Mr. Melinko wish to give evidence in camera, Ms McWatt
(representing them) submitted that this would be preferable since Mr. Onich
and Mr. Melinko would feel more comfortable that way. I accordingly
requested that only the parties and counsel should remain in the hearing
room, and that the cable television should be shut off, and of course that the
other media should leave the hearing room.

Had I been aware that both Mr. Onich and Mr. Melinko would
refuse to reveal what they told Mr. Brady, I would not have ordered the
proceedings to be held in camera, and I do not consider that I am breaching
the rules of the in camera proceedings by revealing that they confined
themselves to stating that they considered they had given Mr. Brady con-
fidential information, which he would not reveal, concerning their relation-
ship with other members of the Internal Investigation Team. For the pur-
poses of explaining my ruling, it is essential that I do refer to what they
said. Had there been matters of a very confidential or personal nature re-
vealed by them, I certainly would not have been able to reveal them at this
time.

Mr. Onich' s information to Mr. Brady, according to his evidence,
was in relation to his defense on a charge of shop-lifting (that has been
mentioned elsewhere here), and consisted of explaining to Mr. Brady the
stress of the internal investigation, his role in it, and his past history, and
"to some degree," in his words, the role of other team members and his
relationships to them. He refused to give any further details in that regard,
because he had assumed that that information was given in confidence to
Mr. Brady and would never have to be disclosed.

On being asked by his counsel specifically whether he thought the
information could be used in cross-examination by Mr. Brady, he hesitated

Rulings 491

and then agreed that that was possible. What that information was, was not
disclosed as I have stated.

Mr. Melinko stated that in 1985 his wife was involved in a motor
vehicle accident, and she consulted Mr. Brady in that regard. Mr. Melinko
accompanied her to make a claim, in connection with her injuries, under the
Family Law Reform Act.

Ms McWatt has asked me to point out that in referring to this matter
during preliminary submissions by counsel, before the television was shut
off, that I inadvertently referred to the consultation with Mr. Brady as being
in connection with a domestic dispute. There was of course no domestic
dispute, and in fact Mr. Melinko was lending comfort and support to his
wife by joining her in her consultation, and by making his claim under the
Family Law Reform Act which does provide for such claims. And while it
relates to a large extent to matters of domestic dispute, it also gives spouses
and other dependents certain rights in the event that a spouse is injured in
an accident, as the result of negligence on the part of some other person,

Mr. Melinko's evidence, which I feel did not justify in camera pro-
ceedings, was that on one of the attendances on Mr. Brady that Mr. Brady,
knowing that Mr. Melinko was a member of the Internal Investigation
Team, remarked that the investigation should be conducted by an outside
agency since he (that is, Mr. Brady) had some reservations about, at least,
one of the members of the team. Mr. Melinko replied that he considered
them all to be "honest and competent." He said it was a very short
conversation, but he felt a little uncomfortable about talking about the
investigation team at all, since he was a member of it.

He refused to answer further questions in that regard, and stated that
he resented any of his conversation with his counsel being repeated, either
here in camera or elsewhere.

Ms McWatt, in her submissions, stated that she had no problem re-
garding Mr. Brady taking part in this phase in relation to Mr. Onich or Mr.
Melinko — am I correct in that? — since Mr. Brady had given her an under-
taking not to cross-examine either Mr. Onich or Mr. Melinko; but her con-
cern was for the other members of the Internal Investigation Team whom
Mr. Brady might examine and use information received from Mr. Onich in
that regard. That was my understanding, Ms McWatt.

492 Rulings

MS McWATT: I believe, your Honour, that I didn't have such a
complete undertaking with respect to Sergeant Melinko. I did have an
undertaking with respect to Constable Onich. But basically no, not with re-
spect to Sergeant Melinko. I believe submissions would still be made on
Sergeant Melinko.

MR. COMMISSIONER: Yes.

MS McWATT: And my position was ...

MR. COMMISSIONER: I meant to refer to that, that so far as Ser-
geant Melinko was concerned, I think, Mr. Brady interrupted you at that
point and said that his undertaking as far as Mr. Melinko went was that he
would not cross-examine him, but that he might make submissions in that
regard. Am I correct in that?

MS McWATT: I believe so, your Honour.

MR. COMMISSIONER: Yes. Miss McWatt submitted that that
would be a breach of Mr. Onich's solicitor/client privilege if other members
of the team were examined or cross-examined by Mr. Brady, since Mr.
Onich had given the information to Mr. Brady in the expectation that it
would not be used in any way, and referred to the Law Society of Upper
Canada's rules of professional conduct, rule five, and the commentary num-
ber twelve respecting rule five. I shall be referring to those later. Ms
McWatt was unable to refer me to any jurisprudence as to the disquali-
fication of a lawyer from using confidential information received from a
client in an unrelated matter involving third parties.

Although not directly involved in this application, Mr. Shoniker, for
the Board of Police Commissioners, and Mr. Fedorsen, for Chief Shoveller,
and Ms Dunlop, for Sergeant VanderMeer, requested permission to take
part. And in the absence of any objection, and in the interests of receiving
all the help that I could get in arriving at a proper decision, I acceded to
those requests.

The thrust of their arguments, as I understand them, was mainly on
the appearance of unfairness in allowing Mr. Brady to examine other
members of the Internal Investigation Team, when Mr. Onich and Mr.
Melinko felt that he might be assisted by information that they had given
to him (Mr. Brady) in confidence.

Rulings 493

Mr. Shoniker quoted from a number of texts outlining the principle
of solicitor/client privilege and urged that there was an interest to be pro-
tected, namely that of a client's expectation of the preservation of confi-
dential disclosures, which should outweigh the problem of delay in proceed-
ing with these hearings due to Mr. Brady's removal and the briefing of ano-
ther counsel.

Ms Dunlop adopted the foregoing arguments, stating that although
Mr. Brady had undertaken not to examine Sergeant VanderMeer, because
of past associations with him, nevertheless Sergeant VanderMeer would feel
uncomfortable when Mr. Brady was examining other Internal Investigation
Team members.

MS DUNLOP: Your Honour, I believe we sorted that out last night,
and I told Mr. Kelly, at least through Mr. Collins, about this. I indicated
that — and I think Mr. Brady can confirm this — my position is as was ori-
ginally set forward by Mr. McGee that I have no other concerns, other than
the fact that Mr. Brady is not cross-examining Sergeant VanderMeer be-
cause of their long previous association.

But I still urge the arguments that are put forward by Ms McWatt,
Mr. Shoniker, Mr. Fedorsen with reference to the rest of the members of the
team. But I certainly am not arguing at this point that there would be any
effects on Sergeant VanderMeer.

MR. COMMISSIONER: I see. Thank you, I don't think I got the
word that you had changed that. You did mention that, I think; did you not?
in your submissions to me that you would ...

MS DUNLOP: I did, but we also indicated that we would have a
conference after your ...

MR. COMMISSIONER: I see, I didn't know about the conference,
and of course I wasn't in on it.

I agree with the submissions that I should not give great weight to
the probability of delaying these hearings for perhaps several weeks while
a new Police Association counsel familiarizes himself with the mountain of
documents, briefs, and transcripts pertaining to this phase. While it is a fac-
tor to be considered, expedition of the proceedings can never outweigh the
principles of fairness or the perception of fairness.

494 Rulings

There are two distinct principles in issue in this application, although
they are closely inter-related. One is the conflict of interest, and the other
is the solicitor/client privilege.

The Law Society of Upper Canada, as I have mentioned, has esta-
blished rules of professional conduct which govern the conduct of lawyers.

Rule four states as follows:

The lawyer has a duty to hold in strict confidence all information ac-
quired in the course of the professional relationship concerning the
business and affairs of his client, and should not divulge any such
information unless he is expressly or impliedly authorized by his
client or required by law to do so.

Rule five:

The lawyer must not advise or represent both sides of a dispute and
save after adequate disclosure to, and with the consent of, the client
or a prospective client concerned, he should not act or continue to
act in a manner when there is or there is likely to be a conflicting
interest. A conflicting interest is one which would be likely to affect
adversely the judgement of the lawyer on behalf of his or her loyalty
to a client or prospective client, or which the lawyer might be
prompted to prefer to the interests of a client or prospective client.

There then follows a commentary on rule five; commentary number
twelve, which is in effect an explanation or exposition of it, I suppose. That
commentary twelve is as follows:

A lawyer who has acted for a client in a matter should not thereafter
act against him (or against persons who were involved in or
associated with him in that matter) in the same or any related matter,
or when he has obtained confidential information from the other
party in the course of performing professional services. It is not,
however, improper for the lawyer to act against a former client in a
fresh and independent matter wholly unrelated to any work he has
previously done for that person, and where such confidential
information is irrelevant to that matter.

The traditional test as to whether a solicitor should not be allowed
to take part in a judicial hearing is set out in the decision of the English
Court of Appeal in Rakusen v. Ellis et al {\9\2), 1 Chancery Division, 831,

Rulings 495

which established the "probability of real mischief test." At p. 815, the
quote is from the Master of the Roles, Cozen-Hardy:

In my view, however, we must treat each of these cases not as a
matter of form, not as a matter to be decided upon the mere proof
of a former acting for a client; but as a matter of substance. We
must come to a conclusion before we allow any special jurisdictional
over solicitors to be invoked, and we must be satisfied that there is
real mischief and real prejudice which in all human probability will
result if the solicitor is allowed to act.

This test has been adopted in Canada in a number of decisions, in-
cluding Mercator Ent. Limited (1978), 29 N.S.R. (2d) at p. 703. "Ent." is
short for Enterprises I assume. It went on to hold that the onus is on the
applicant to show that confidential information has been transmitted and
that, in fact, there has been prejudice and mischief.

More recently, however, some Ontario courts have applied a less ri-
gorous test and require only that the applicant show a "probability of mis-
chief or "the appearance of professional impropriety;" and they refer in
their judgements to the concept of fairness.

In Re. Regina and Speid (1983), 43 O.R. (2d) at p. 596, Mr. Justice
Dubbin as he then was, now Associate Justice of Appeal, states:

In assessing the merits of a disqualification order, the court must ba-
lance the individual's right to select counsel of his own choice,
public policy, and the public interest in the administration of justice,
and basic principles of fundamental fairness. Such an order should
not be made unless there are compelling reasons. This clearly is
such a case, and to do otherwise would result in real mischief or real
prejudice.

That was referring to the facts of that case, which was, as I recall it,
a lawyer having represented a man who was charged with murder and
against whom the action was withdrawn or dismissed, then proceeded to act
for, I believe, the common law-wife; both of them having been charged
with infanticide of a daughter.

The lawyer had acted in the first instance for the infant's mother,
that charge, I believe, had been withdrawn. He then proceeded to act for the
common-law, I believe, husband, when the mother was called as a Crown

496 Rulings

witness, and it was held that on those facts there was clearly real mischief
or real prejudice was probable.

The second principle to be considered is a client's privilege of com-
pelling non-disclosure by his solicitor of confidential communications made
by the client to the counsel. A long line of cases has established that,
amongst other conditions. To establish such a privilege, the communication
must be for the purpose of giving or receiving professional advice. It must
be made in order to elicit professional advice from a lawyer based on his
expertise in the law. If it was made in a personal capacity, such as casual
conversation, rather than being referable to the professional relationship, no
privilege will attach.

And in that relation I should refer to Sopinka and Lederman's
edition of the "Law of Evidence in Civil Cases."

It should be pointed out that this solicitor/client privilege refers to
the client's privilege of preventing his solicitor from disclosing privileged
information. And that there is no suggestion here that Mr. Brady will be
disclosing such information to others. The privilege is on'y related to the
first principle, that is, of establishing that Mr. Brady has a conflict of
interest, and because he has information covered by the solicitor/client
privilege which he might use - or that he might use that information to
examine the other members of the Internal Investigation Team, and that
therefore he should not be allowed to continue to act in this phase of our
hearings.

Mr. Brady has stated that he recalls no such information, if it was,
in fact, given to him. And, of course, I accept his statement as an officer of
the court, but nevertheless that is not the end of the matter.

In spite of my repeated request to all counsel to provide me with ju-
risprudence to support the submission that the solicitor/client privilege can
somehow inure to the benefit of others with whom the client may be associ-
ated, none has been offered, and I have found none.

The submissions seem to resolve themselves into an argument that
for Mr. Brady to examine some of the applicants, or the applicant's co-
members of the Internal Investigation Team, after having discussed the ap-
plicants associations with them gives an appearance of unfairness that
would erode the public's confidence in the administration of justice, and
would leave the applicants with a feeling of betrayal.

Rulings 497

Unfortunately, the applicants appear to have assumed that all com-
munications with their lawyer are privileged, and further that it would be
improper for the lawyer to appear in an adversary position in a completely
unrelated matter; which unrelated matter would have to do with third parties
about whom the applicants had given the lawyer information in their subjec-
tive belief that it was all confidential.

As mentioned, I am aware of no jurisprudence for this effect, and I
do not believe that it was ever intended that the solicitor/client privilege
should be so extended. I am not prepared to so extend it. And I do not
believe that once the public is aware of the background that there will be
any perception of unfairness on the part of the public if Mr. Brady is
permitted to examine the four members of the Internal Investigation Team
referred to.

I must also bear in mind that the Police Association will find that it
is no simple thing if they are required to forego the solicitor of their choice,
and force them to retain and brief a solicitor of secondary choice who is un-
familiar with this phase or the onus of evidence already received over the
last eleven months; much of which may be relevant to the internal investi-
gation, although I won't know that until I've heard it.

The right to counsel of one's choice is a fundamental principle and
is not one likely to be interfered with. Further I am not at all convinced that
I should accept the subjective impression of Mr. Onich or Mr. Melinko,
however honestly given by them, that the information that they gave Mr.
Brady was given for "the purpose of giving or receiving professional ad-
vice" (to use Sopinka and Lederman's words), or that the information was
such as to be of any use to Mr. Brady in his examination of the team mem-
bers.

I do not have the information, because of their refusal to give me
that information, and the onus is on the applicants to show that: a)
confidential information has been given by them to Mr. Brady, and that
there has been, or will be, prejudice and mischief if he is allowed to
continue; or b) that to allow him to proceed would be manifestly unfair, or
would bring the administration of justice into disrepute.

I am not so convinced, and accordingly I am dismissing the appli-
cation.

498 Rulings

Ruling of October 23, 1989: Conflict of interest -
Mr. Brady's capacity to appear before this Commission

(Orally) This is an application by Mrs. Denise Taylor and the Board of
Commissioners of Police to prohibit Ronald Brady, counsel for Niagara Re-
gion Police Association, from appearing for the Association during the
phase of this Inquiry which will be dealing with an investigation carried out
by an Internal Investigation Team of the Niagara Regional Police Force in
1987.

I have already outlined the circumstances surrounding that investi-
gation in my ruling of October 11, 1989, arising out of a similar appli-
cation by several members of the Internal Investigation Team.

Mrs. Taylor is the present Chairman of the Board of Commissioners
of the Niagara Regional Police Force. She was appointed a member by an
Order in Council dated January 16, 1986, and was elected Chairman of the
Board early in 1987. The ground upon which this application is based is
conflict of interest on the part of Mr. Brady in connection with Mrs. Taylor.

Mr. Brady is a partner in the law firm of Bench, Keogh of St. Catha-
rines. Mr. John Crossingham is also a partner in that firm. Mrs. Taylor at
one time was a next door neighbour of Mr. Crossingham and the Taylor and
Crossingham families became, and still are, very close friends, meeting so-
cially in one or other of their homes at least once or twice a week.

Mr. Crossingham is a municipal and corporate lawyer with
admittedly little knowledge of police or criminal law, but after her
appointment to the Commission, Mrs. Taylor, during these social occasions,
frequently asked Mr. Crossingham for advice regarding procedural matters
involving Police Commission problems.

A few days after Mrs. Taylor's appointment, Mr. Crossingham men-
tioned to her that one of his law partners, Ron Brady, was the lawyer for
the Niagara Region Police Association and was the most knowledgeable
area lawyer regarding police matters. He asked whether she would like to
talk to him and she agreed she would.

At p. 48 of vol. 1 14 of the transcript of evidence, Mr. Crossingham
gives his version of what transpired as follows - he was being examined at
that time by Mr. Miller. He said:

Rulings 499

"... since I knew that Ron had certain knowledge of some of
the problems on the Force and as he acted for the Police
Association, I thought that it would be a wise idea for her to
talk to Ron and to get an idea of that side of the picture.

Q. "That side" being what?

A. The Police Association, what input they might have because
they would obviously be dealing with Denise, and also the
rumours and some of the matters and concerns that I knew had
been raised to Ron.

Q. Where did this discussion take place? Let's start with that.

A. Probably in the Taylor home, either in the living room or
dining room."

And then further down on p. 49,

"Q. What did you tell her about Mr. Brady's status?

A. She knew that Ron acted for the Police Association. I mean,
that wasn't a matter that I had to belabour or point out or
emphasize. That was understood."

Mrs. Taylor's version of the arrangement is set out in vol. 1 1 1 of the
transcript at p. 44, and this was in answer to a question by Mr. Shoniker.
She said:

"He ..."

meaning Mr. Crossingham,

"... indicated that he was aware that I had been appointed to the
Police Commission and that — he said that he didn't know if I was
aware or not but his partner, Ron Brady, was very familiar with
the Niagara Regional Police Force and in fact had acted frequently
for the Niagara Region Police Association and that, in his opinion,
Ron Brady was the best versed of all members of the bar in Nia-
gara with respect to the Police Act.

500 Rulings

And he suggested that it would be a good idea for me to sit down
with him at some point in time, if I was willing, and talk to him
about some of the background with respect to the Force and the
Police Act.

And when he said this, he said, 'would you be interested in meet-
ing with him? I think you should.' And I said, 'Certainly, I
would,' and he said, 'Fine, I'll set up such a meeting'."

I might say that in outlining the evidence on this application, which
was given over the course of some four days, I intend to quote rather exten-
sively from the transcript which sets out the evidence more accurately than
I might do by way of paraphrasing it. Mr. Kelly has also pointed out a
number of relevant passages which I am taking into consideration without
repeating them, unless I do so inadvertently.

On January 22, 1986, a week after her appointment as
Commissioner, Mr. Crossingham met Mrs. Taylor in Bench, Keogh's
offices and took Mrs. Taylor to Mr. Brady's office where he introduced her
to Mr. Brady and then left them to discuss police matters. The meeting
lasted an hour or more.

Mrs. Taylor says that Mr. Brady started off by saying:

"I don't know why I'm doing this. I feel a bit uncomfortable, but
I hear you're sincere and dedicated and therefore I'll talk to you
and tell you things about the Police Force because I don't think
you realize what you ended up getting yourself into."

And then he went to say something to the effect that you're out of
your depth because of the serious problems in the Force.

At vol. Ill, p. 64, Mrs. Taylor in answering a question by Mr.
Shoniker said:

"Well, he made reference to the fact that he was - had represented
frequently the Police Association in legal matters and that he was
prepared to provide me with information but it was to be provided
in the strictest of confidence and it was only on the understanding
that I would not quote him and that I would not divulge the infor-
mation that I was giving him - or at least the source of the infor-
mation that I was getting from him.

Rulings 501

Q. And —

A. And I agreed."

The meeting proceeded with Mr. Brady outlining some of the
problems he was aware of, and at p. 124 of that same vol. Ill, Mrs. Taylor
was asked by Mr. Fedorsen:

"After he gave you the information, did you ask his advice as to
what you were supposed to do with the information?

A. He had, I guess, volunteered his advice on what I should do
with the information because as I mentioned, part way
through when he had given me some of the information, I
had verbally blurted out (more or less thinking out loud). 'I
don't know what 1 am going to do with this information,' or
'I don't know what I should do with this information.' And
his response was 'I'm not providing you with this infor-
mation so that you will do something with it. I don't want
you to do anything about it. You shouldn't be doing any-
thing with this information. I am telling you, because you
don't realize how serious this matter is, how deep the cor-
ruption is, and if you try to do something about it you won't
get anywhere.'

Q. When you heard that advice, did you think you were getting
at that point advice from a lawyer, or from somebody on the
street, in your own mind?

A. I certainly knew he was lawyer. I don't think, quite honest-
ly, Mr. Fedorsen, that I turned my mind to whether or not
I was getting a legal opinion from a lawyer. He was ad-
vising me not to do anything about it."

And at p. 79 of the same volume, during Mrs. Taylor's evidence, she
was asked by Mr. Shoniker:

"Q. All right. Did you speak to him about what happens at
Board of Commission meetings at an administrative level?

A. No, I - well, the only thing that I know of a procedural, ad-
ministrative nature that he brought to my attention was that

502 Rulings

with respect to the Complaints Procedural ByLaw that we
had as a Board, and indicated that we had some serious
problems with that, and he alerted me to them. One in parti-
cular.

Q. How did this meeting end on or about the 22 of January?
When I say, how did it end, I mean to ask you what words
were exchanged as you left, if you can recall those words,
what understandings you felt you had, if you had those
understandings?

A. I think it was repeated again that it was - the discussion had
taken place in complete confidence, and I don't recall too
much about how it ended specifically."

It is apparent from Mrs. Taylor's evidence that the confidential infor-
mation being given, was given from Mr. Brady to Mrs. Taylor, since as she
said, after less than a week as a Commissioner, she had no information to
impart.

At p. 174 of vol. Ill, she is asked the question:

"Did you ask him about it or did he just start talking about it?

A. All I - well, perhaps I could just clarify something for you,
Mr. Miller. You have used the word discussion many times.
I wouldn't phrase it that way. I wouldn't describe it as a
discussion. It was a dialogue primarily one way, and it was
from Mr. Brady to me. I had very little to say."

And at p. 107 of the same volume - at this point she is being asked
questions by Mr. Kelly, and after he had asked her, and he had already read
this, about the question of solicitor and client privilege, she had said:

"It really didn't enter my mind whether it was privileged or not."

And she was asked the question:

"In terms of your chat with Mr. Brady on January the 22, or
whatever day it was, in 1986, was this a matter of Brady dis-
closing matters that he thought were confidential to you, as op-

Rulings 503

posed to you disclosing matters that you thought were confi-
dential to him?

A. Oh, I really didn't have anything of a confidential nature
that I could have disclosed if I had wanted to at that point.
I was a matter of days on the Board. I had really had no-
thing to tell him."

Subsequently, on the advice of two unnamed lawyers, Mrs. Taylor
passed along all the information she had received from Mr. Brady to
Sergeant VanderMeer in October or early November, I believe, of 1986, and
repeated in some less detail to Inspector Newburgh and Sergeant Vander-
Meer in February of 1987, when the Internal Investigation Team was
launched.

Sergeant VanderMeer was called to outline his relationship with Mr.
Brady. He stated that Mr. Brady had acted as his solicitor from time to time
over a period of some years, I believe, and on one occasion he had Sergeant
Peressotti, a fellow Niagara Regional officer, and they together had attended
on Mr. Brady for advice as to whether they would be subject to Force disci-
plinary action if they assisted a secret Ontario Provincial Police investi-
gation into allegations of wrongdoing involving members of the Niagara
Regional Police Force and others, without Peressotti and VanderMeer first
notifying their superior officers of their assistance to that investigation.

On being assured by Mr. Brady that the most they would get would
be a slap on the wrist because the probative value would outweigh the
prejudicial value of what they were doing, they told Mr. Brady some details
of the Ontario Provincial Police operation and requested his assistance as
a go-between in delivering to the Ontario Provincial Police a package con-
taining audio tapes and memoranda re the operation.

Mr. Brady agreed. The sealed envelope was delivered to him, and
Sergeant Joyce, the Ontario Provincial Police officer in charge of the
investigation, picked it up from Mr. Brady in Mr. Brady's office. Sergeant
Joyce, who should know, states that this was Mr. Brady's only involvement
in the investigation.

It seems to me that referring to Mr. Brady's gratuitous action in
passing along a sealed envelope to assist a secret investigation by an outside
police agency was a public duty he could not have refused, and to refer to
his action as making him a "major player," as apparently Mr. Stephen Sher-

504 Rulings

riff told Mrs. Taylor had been the case, and that he was thus in a position
of conflict of interest, is a submission that I cannot accept.

Mr. Brady charged no fee for the advice to Peressotti, nor for the de-
livery of the package. Sergeant Peressotti says he later passed on to Ser-
geant Melinko and Constable Onich of the Internal Investigation Team, Mr.
Brady's advice regarding the probative value outweighing the prejudicial
value and it was submitted that this was another position of conflict.

Another witness that was called was Ted Johnson, the Administrator
of the Niagara Regional Police Association, and he testified that following
Mrs. Taylor's appointment to the Police Commission, he asked Mr. Brady
whether he knew Mrs. Taylor, and Mr. Brady indicated that although he
didn't know her personally, he was meeting with her very shortly thereafter.

Mr. Johnson stated he was interested in the personality of the new
Commissioner and asked Mr. Brady to discuss with her the Association's
concern regarding the Citizens' Complaint Procedure to find out what her
position on that was and to give him some details of her background, her
likes and her dislikes.

In February of 1987, following Chief Gayder's suspension by the
Board of Police Commissioners, Acting Chief Shoveller, as already men-
tioned, ordered an internal investigation into wrongdoing in the Force. Ser-
geant VanderMeer was effectively in command of the Team and Constable
Onich and Sergeant Melinko were amongst the members.

In the fall of 1987, the Attorney General, or his Department, ruled
that the Internal Investigation Team's Report on wrongdoing in the Force
revealed no reasonable and probable cause for charges to be laid. The Board
of Police Commissioners was dissatisfied with this and demanded a Judicial
Inquiry. This Inquiry resulted.

The phase of the Inquiry we are attempting to get started will look
into the operation of the Internal Investigation Team.

Mr. Shoniker, on behalf of the Board and Mrs. Taylor, submits that
on the evidence Mr. Brady stands in the position of having had a limited
solicitor-client privilege in relation to Mrs. Taylor arising out of her as-
sociation with his partner, Mr Crossingham, and Mr. Brady's meeting with
her on January 22, 1986. He submits that this places Mr. Brady in a po-

Rulings 505

sition of conflict in relation to Mrs. Taylor and that Mr. Brady should not
be allowed to cross-examine her on this phase of the Inquiry.

He submits that the fact that neither Mr. Brady nor Mr. Crossingham
billed her for legal fees is not important. I agree that it is not an overriding
factor, but it is certainly a factor to be considered. Lawyers in a strict so-
licitor-client relationship seldom render services for which they expect to
be held responsible without charging a fee. Nevertheless, a solicitor-client
relationship can certainly arise without fees being expected or paid, depen-
ding on all the circumstances.

Mr. Shoniker states unequivocally that he accepts the fact that Mr.
Crossingham passed none of Mrs. Taylor's information, given to him, Mr.
Crossingham, on to Mr. Brady, and that he makes no submission that there
was any breach of confidence or mischief in that respect.

If I understand Mr. Shoniker's submission, it is based on the ap-
pearance of a conflict or conflicts arising out of Mr. Brady's January 22,
1986, meeting with Mrs. Taylor and also his involvement, as already out-
lined, with Sergeant VanderMeer, Constable Onich, Sergeant Melinko of the
Internal Investigation Team, and Sergeant Peressotti, who is not such a
member.

Mr. Shoniker refers to Commentary 13 on Rule 5 of the Law
Society Rules of Conduct, which was extensively referred to in the former
application by Sergeant Melinko and Mr. Onich and others:

"A lawyer who has acted for a client in a matter should not there-
after act against the client in the same or any related matter, or
when the lawyer has obtained confidential information from the
party in the course of performing professional services."

Mr. Shoniker emphasizes the confidential information part. It is ob-
vious that no confidential information was received by Mr. Brady from Mrs.
Taylor. Mrs. Taylor herself makes it clear that she had no information, con-
fidential or otherwise, to impart.

Mr. Shoniker does, however, submit that Mr. Brady received confi-
dential information from Sergeant Peressotti and Sergeant VanderMeer in
relation to the Ontario Provincial Police investigation.

506 Rulings

It is true that Sergeant VanderMeer stated he felt betrayed by the
fact that he considered that Mr. Brady had earlier encouraged him to seek
out wrongdoing in the Force, and then he had later heard that Mr. Brady
had accompanied Mr. Johnson of the Police Association to see the Attorney
General in order to protest the manner in which the Internal Investigation
was being carried out, although there is no direct evidence that that meeting
occurred. But assuming for the moment that it did, I am not satisfied that
it represents a conflict on the part of Mr. Brady, and certainly not one that
Mrs. Taylor can complain about.

In any event, because of his association with Sergeant VanderMeer
in other matters, Mr. Brady has undertaken not to cross-examine Sergeant
VanderMeer and, for that matter. Constable Onich, or Sergeant Melinko,
apart from making some submissions regarding the latter.

In addition, I have already found that Mr. Brady has no conflict in
relation to Constable Onich and Sergeant Melinko, nor can I see that Ser-
geant Peressotti's action in telling Constable Onich and Sergeant Melinko
about Mr. Brady's advice concerning the probative value out-weighing the
prejudicial value can establish some conflict between Mr. Brady and them.
And I think it's significant that that was not suggested by their counsel in
her earlier application on their behalf.

Mr. Shoniker submits that there is proof of conflict in that Mr.
Brady, "walked into the meeting with Mrs. Taylor on January 22, 1986,
with an agenda from the Police Association." He submits that for Mr. Brady
to "spy" on Mrs. Taylor without advising her of his "agenda" from the
Association was unethical and a conflict.

A request from the Police Association administrator to Mr. Brady
to discuss with the new board member the Association's concern about the
Citizens' Complaint procedure and to afterwards let him know what the new
member was like is not what I think of as an agenda, and it seems to me
to be a perfectly natural action on the part of both Mr. Johnson and Mr.
Brady. Mr. Brady did tell Mrs. Taylor that the Police Association saw prob-
lems relating to the Citizens' Complaint procedure and she was well aware
that Mr. Brady felt some discomfort in talking to her while representing the
Association, but nevertheless he told her he felt he should apprise her of
some of the Force problems.

I do not find it unnatural or unethical that he failed to tell her that
Mr. Johnson was interested in finding out what the new member was like.

Rulinfis 507

Surely, it is almost predictable that impressions about a new face on the
Board would be sought out by the persons the Board employs. It probably
happens with every new employer and I just don't see what possible breach
of duty or confidence can be ascribed to that. To characterize this as
"spying" is to inflate the situation out of all rational proportion.

I have considerable difficulty with the further submission that there
is a conflict on Mr. Brady's part because Mrs. Taylor, in spite of Mr.
Brady's repeated assertions that the information he gave was in strict
confidence, nevertheless gave that information, as well as information from
other sources, to Sergeant VanderMeer and later, in lesser detail, to Inspec-
tor Newburgh.

The submission is that this might have affected the manner in which
the internal investigation was conducted and accordingly it would be unfair
for Mr. Brady to cross-examine Mrs. Taylor in the internal investigation
phase. Mrs. Taylor was, of course, not a member of the Internal Investi-
gation Team.

How Mr. Brady can be in conflict of interest in relation to Mrs.
Taylor because she passed information given her in strict confidence by Mr.
Brady is a leap in logic I simply cannot follow. It is true that she says she
considered it wasn't a breach of confidence so long as she did not disclose
the source to be Mr. Brady.

There is nowhere in her evidence the slightest suggestion that Mr.
Brady suspected she would pass on this information to VanderMeer who,
in any event, states that he already had that information apart, perhaps, from
some information about one Augustino. The fact is that on Mrs. Taylor's
evidence, Mr. Brady told her he did not want her to do anything with the
information and warned her against using it.

I cannot see how Mr. Brady can be blamed, therefore, for having
somehow affected, if there was an effect, upon the internal investigation.

The Police Association has made it very clear that it is insisting on its right
to select a counsel of its choice and that choice is Mr. Brady. I have in my
ruling on the Onich, Melinko, etcetera, an application of a week ago cited
what I consider to be the relevant law on disqualification and I shall not re-
peat it except to again quote Mr. Justice Dubin's observation in Regina v.
Speid:

508 Ruiings

"In assessing the merits of a disqualification order, the court must
balance the individual's right to select counsel of his own choice,
public policy and the public interest in the administration of jus-
tice and basic principles of fundamental fairness. Such an order
should not be made unless there are compelling reasons."

There has not been shown to me any information received by Mr.
Brady from Mrs. Taylor that would give Mr. Brady any unfair advantage
in cross-examining Mrs. Taylor. Nor was there shown to be any information
given by Sergeant Peressotti or Sergeant VanderMeer to Mr. Brady that
would give such an advantage even if such a fact were relevant on an appli-
cation in relation to Mr. Brady's relationship with Mrs. Taylor. To use the
language of the decided cases, I am at a loss to "find any real mischief or
real prejudice which in all human probability will result" if Mr. Brady is
allowed to act.

Nor do I see any unfairness arising out of Mr. Brady continuing to
act since the evidence does not disclose any confidential information that
Mr. Brady received from Mrs. Taylor which might be used against her.

It has been urged upon me that if enough connections between Mr.
Brady and members of the Force can be shown, even though no one
connection is very telling in relation to conflict of interest, nevertheless, the
sheer weight of a number of such connections can somehow amount to
proof of a conflict or, as someone said, that Mr. Brady had too many irons
in the fire and this might give a poor impression to the public.

That is a novel assessment that I do not accept. As Mr. Kelly might
say, "A half a dozen swallows don't make a summer."

In considering what evidence is admissible or compellable in an In-
quiry such as this, it must be born in mind that very different considerations
apply than those in a regular trial. Hearsay, rumours and allegation that
would never be allowed in a trial must be considered for what they are
worth in an Inquiry.

The rules of civil procedure, the rules set out in the Law Society's
Professional Conduct handbook and in the Canadian Bar Association's Code
of Professional Conduct were formulated for private litigation where there
is no obligation to volunteer information to an opposite party.

Rulings 509

A Commission issued under the Public Inquiries Act to seek out in-
formation for a public purpose and in a matter of public concern is a very
different forum. There is also, of course, a fundamental difference when we
consider conflict in relation to a witness rather than a party. There are no
parties here.

Nevertheless, I consider that the rules I have referred to do provide
guidelines that I should keep in mind. Nevertheless, all Government mini-
stries, boards, agencies and Commissions are required in express terms un-
der the Order in Council to assist the Commissioner, that is, myself, to the
fullest extent.

Such Commissions include Police Commissions and Commissioners
and members of the force which the Police Commission administers.

In a public inquiry there is an obligation on all witnesses to tell
what they know of the subject matter regardless of their allegiances. If Mr.
Brady is in a better position because of his special knowledge to bring out
information important to this Commission, then that is an advantage to the
Commission.

It is clear, however, from Mrs. Taylor's evidence that she did not
contribute to his knowledge because on January 22, 1986, she was too new
at the job to have any knowledge to impart. How then can Mr. Brady be in
a position of conflict so far as Mrs. Taylor is concerned?

If Mrs. Taylor has information that is relevant she is duty-bound to
volunteer it as a member of the Police Commission regardless of the fact
that she may feel that Mr. Brady should not be permitted to ask her about
it.

There must be a compelling reason to deprive the Police Association
of the counsel of its choice and I find no such reason. I see no advantage
in the cross-examination of Mrs. Taylor which Mr. Brady has obtained
through his meeting with her, no appearance of unfairness if he is permitted
to continue to act for the Police Association, and I find no conflict of in-
terest in relation to the applicant, and the application is accordingly dis-
missed.

510 Riilini^s

Ruling of February 20, 1990: Production of documents -
Board minutes and tapes

{Orally) Counsel for James Gayder has applied for an order for production
of all minutes of the Board of Police Commissioners from the date of the
calling of this Inquiry to the present time, and all recordings, documents
and tapes of any Board meetings, notes made by the Board members, copies
of three legal opinions given to the Board in the fall of 1987, all corre-
spondence in connection with this Inquiry, and for the filing as ordinary ex-
hibits of Exhibits 49A to 49F, which are the internal investigation briefs
which were given to the Attorney General in October of 1987.

There appears to be no objection to having the latter briefs made
ordinary exhibits without restriction as to access and in accordance with the
Inquiry policy of openness, I so order.

As to the production of the other items, leaving aside for the
moment those referred to in Paragraph 5, that is, the three legal opinions,
Mr. Collins and Mr. Pickering have argued very persuasively that the appli-
cation has nothing to do with disclosure since the Order in Council speci-
fically requires the Board to assist this Inquiry to the fullest extent and
accordingly it is bound by Executive Order to produce whatever documents,
etcetera, I, as Commissioner, on the advice of Commission counsel who
know what is involved, consider to be relevant to this Inquiry.

They point out that there is no limitation in the Order in Council as
to matters arising since the Order in Council was issued.

I agree with those submissions and in view of the repeated assur-
ances by all counsel that everyone is interested in getting at the truth
regardless of who it may hurt, and of leaving no stone unturned so that all
questions may be answered once and for all, I am somewhat confused as
to why we have spent more than two days arguing about the right to with-
hold information under solicitor and client privilege.

vSo far as the production of those items I referred to is concerned, I
am assisted as to the form of the Order for Production of those items
through Dr. Ratushny's statement during his submission of last Wednesday,
February 14, 1990, which is at pp. 167 and 168 of the transcript, wherein
he says:

Rulings 51 1

"I understand that the arrangement was that without waiving solicitor
and client privilege, Mr. Shoniker was prepared to sit down with Mr.
Kelly and to go over any items of interest to him in the minutes."

And I interjected and asked, "The minutes since?," and he said,
"Since February," presumably February 1988, since that was what we were
referring to. He said:

"Everything - to go everything with him and if there was some do-
cument which Mr. Kelly judged should be introduced, Mr. Shoniker
then would discuss that with him and go and discuss that with the
Board to see what position the Board would take with respect to any
particular document."

This procedure, in general, commends itself to me as a very practical
solution, subject to Mr. Shoniker's objection of yesterday that it should not
include any matters which he states to be covered by solicitor and client
privilege.

I am by no means sure that a Board specifically covered by the
Order in Council and the injunction therein to assist the Inquiry to the
fullest extent has a right to claim privilege in the same way as ordinary
witnesses may under Section 7 of the Public Inquiries Act, nor am I satis-
fied, if there is a right of the Board to claim privilege in spite of the Order
in Council, that the privilege as claimed must be honoured without ques-
tioning its foundation.

It is my recollection of the law that if the privilege is challenged, it is up
to the judge, or other finder of fact in law, to examine the grounds for the
alleged privilege by examining the document in question and make a fin-
ding of privilege or no privilege.

However, I was unable to find the jurisprudence on that question last
night, and since it will presumably be some time before counsel have occa-
sion to examine the minutes, etcetera, in question, I am reserving my de-
cision on the issue of production of the minutes upon which privilege is
claimed.

But in accordance with Dr. Ratushny's proposal, and one that ap-
parently had been put forward some time before his proposal, as to the
other productions, I order that the materials referred to in the applications.
Paragraphs 1 to 4, including notes of the Commissioners which have not yet

512 Rulings

been produced, because some of them have, shall be produced to Commis-
sion counsel and that they, or one of them, and counsel for the Board, or
one of them, examine the material for relevancy and what is relevant will
then be made available to other counsel and may be referred to at this In-
quiry.

If counsel cannot agree as to whether any material is relevant, the
issue will be referred to me for a decision. I do not consider it necessary to
order production of the correspondence referred to in Paragraph 6 of the ap-
plication. I shall in due course rule as to how an objection to produce on
the ground of privilege is to be handled.

In any event, the procedure I have outlined should reduce any risk
of other parties engaging in a fishing expedition and of the hearings being
unnecessarily extended.

I probably should point out that had there not been the offer of the
above compromise, I would have been unwilling to make an order restric-
ting this Inquiry to matters arising only up to the date of the Order in
Council.

A good deal of evidence has been led without objection as to im-
provements in procedures and policy of the Force instituted in the past two
years. One of the Board members requested and was granted permission to
speak at some length on the innovations and improvements made over the
last couple of years.

At the workshops attended and participated in by Board members
and counsel, the consultants all reported on recent and present conditions.
Surely, I am not expected to ignore all that information.

As a further example, the new Police Services Act, 1989, will prob-
ably be in force by the time my report is completed. It provides, amongst
other innovations, for a completely new and compulsory public complaints
procedure to be instituted by all forces and that matter falls directly within
one of our terms of reference.

It would simply make no sense to ignore that legislation and proceed
to make useless recommendations amending the Niagara Regional Police
Force's existing public complaints policy on the ground that this Inquiry is
prevented from considering anything after March 25, 1988, the date this In-
quiry was brought into being.

Rulings 513

There remains the interesting issue of soUcitor and client privilege
in relation to the three lawyers' opinions referred to in Paragraph 5 of the
application.

In Solosky v. The Queen, already referred to and to be found at
[ 1 98 1 ] SCR. 82 1 , at p. 835, Mr. Justice Dickson quotes Master of the Roles
Jessel's definition of privilege:

"The object and meaning of the rule is this; that as, by reason of the
complexity and difficulty of our law, litigation can only be properly
conducted by professional men, it is absolutely necessary that a man,
in order to prosecute his rights or to defend himself from an
improper claim, should have resource to the assistance of
professional lawyers, and it being so absolutely necessary, it is
equally necessary, to use a vulgar phrase, that he should be able to
make a clean breast of it to the gentleman whom he consults with
a view to the prosecution of his claim, or the substantiating of his
defence against the claim of others; that he should be able to place
unrestricted and unbounded confidence in the professional agent, and
that the communications he so makes to him should be kept secret,
unless with his consent (for it is his privilege, and not the privilege
of the confidential agent), that he should be enabled properly to
conduct his litigation."

Later on the same page, Mr. Justice Dickson, as he then was, points
out that there are exceptions to the privilege. Where the communication is
not intended to be confidential, privilege will not attach.

On p. 839 of the same report, he goes on to point out that the
concept of privilege has been broadened recently and states:

"One may depart from the current concept of privilege and approach
the case on the broader basis that (i) the right to communicate in
confidence with one's legal adviser is a fundamental civil and legal
right, founded upon the unique relationship of solicitor and client

In Descoteaux v. Mierzwinski, which was referred to by Mr. Du-
charme, to be found at 70 CCC (2d) at p. 385, the Supreme Court of
Canada approves of the statement I just read and points out that once the
privilege is established, if the privilege conflicts with another person's

514 Rulings

rights, the conflict should be resolved in favour of protecting the
confidentiality.

It can thus be seen that the privilege, if established, is an important
one to be protected, but it is the client's privilege and the client can waive
that privilege if he wishes to do so.

Counsel for Mr. Gayder and Commission counsel raised the question
as to whether the privilege has in fact been established, that is, whether the
opinions obtained were in fact intended to be confidential or were intended,
if favourable, to be used to publicly support the Board's position.

They point to a Board minute of October 22, 1987, which reads as
follows:

''BE IT RESOLVED THAT:-

THAT WE HIRE TWO (2) solicitors to independently assess this re-
port and the recommendations made by members of the Attorney
General's Ministry as soon as possible and that they report back to
this Board as to whether or not they support the recommendations
from the Attorney General's Ministry and that they be privy to all
documentation sent to said Attorney General's Ministry by the Inter-
nal Investigation Unit:

and

that we request that should we make a decision to release this
publicly, what format would they recommend we use to release this
information;"

Mr. Shoniker handed me copies of his letters dated October 27,
1987, on behalf of the Board.

Am I to refer to these matters other than as instructions to counsel?

MR. SHONIKER: I'm sorry, your Honour, I don't know what you
mean.

MR. COMMISSIONER: The letters that you gave me? It's just a
question of whether I quote from them. They are purported to be
solicitor-client communications.

Rulings 515

MR. SHONIKER: Oh, for the purposes of your Honour considering
your ruling, of course, save and except the identity ...

MR. COMMISSIONER: I've got them to hand back to you when
I've finished.

MR. SHONIKER: Thank you, your Honour.

MR. COMMISSIONER: These letters are addressed to the three-
counsel to be retained and are headed, "Privileged Solicitor-Client
Communication." They are approximately identical in format and infor-
mation, and they request the three solicitors to give an opinion on matters
set out in the letters and Paragraph 5 of the letter, which doesn't refer to
instructions, because I won't refer to those, states:

"Solicitor-client privilege is being requested between you and Fedor-
sen/Shoniker. You should know that Fedorsen/Shoniker have been
retained as counsel to the Board of Commissioners of Police for the
Niagara Region. Our client has expressly directed that neither col-
lectively nor individually do they wish to meet with you or know of
your identity prior to the tendering of your opinion. Quite simply,
they are interested in your objective view.

Further, I am instructed that a decision has been received by Niagara
Regional Chief of Police, John E. Shoveller, that no criminal charges
will be laid against James A. Gayder in connection with any of the
evidence or allegations which you are reviewing. Consequently you
can be assured that your opinion will not be used to support any
effort to prosecute Mr. Gayder pursuant to the Criminal Code of
Canada. Further, having resigned from the Niagara Regional Police
Force on March 4, 1987, Mr. Gayder cannot be prosecuted pursuant
to the Police Act.

You should also know that subsequent to the receipt and review of
your opinion, our client may be issuing a public statement. I am in-
structed to assure you that your identity will not be made known in
such a statement should it be issued.

Further, you should know that our client may be urging the Province
of Ontario to call for an inquiry into the activities of James A.
Gayder. Should this request be made and should an inquiry be
ordered, it is not beyond the realm of possibilities that your opinion

516 Rulings

would be made known to others. Although I cannot conceive of a
situation wherein the focus of an Inquiry, should it be ordered,
would go beyond an analysis, investigation and evaluation of Mr.
Gayder's activities, neither we nor our client would have any control
over the parameters."

It is obvious from those letters that the Board, through its solicitors,
intended to create a solicitor-client privilege with each of the three lawyers.
However, as Mr. Pickering points out, one does not create such a privilege
simply by calling it one. There must be an expectation of confidentiality.

On the basis of the letters and the Board resolution of October 22,
1987, there could be a question whether the opinions obtained were in fact
intended to be confidential or, rather, depending on whether the opinions
confirmed the Board's views, were intended to be used to quote the Board's
resolution to "make the Board's position public in the near future."

The question of confidentiality may also be called into question by
the Board's action in sending Sergeant VanderMeer to deliver the five
volumes of the Internal Investigation Team's briefs to the three lawyers,
apparently with a view to his explaining the briefs to them individually over
a period of several hours, and his memo to Deputy Chief James Moody of
October 30, 1987, mentions that:

"Mr. Black -- ,"

that is one of the lawyers.

" — and I met from 1400 to 1 800 hours. We discussed and examined
most of the relevant material."

And later he says:

"Mr. Black said he would be completing his report over the
weekend and that he wants me to attend at his office on Monday,
November 2, 1987, at 1400 hours. At that time he wishes me to
review the contents of the report to ensure that he has stated the
evidence accurately."

Subsequently, it appears from other evidence that Sergeant
VanderMeer gave considerable information to Sergeant Melinko regarding

Rulings 517

the contents of his discussion with the lawyers. Confidentiality thus seems
questionable, as submitted by the AppHcant and Commission counsel.

However, rather than making a finding as to whether there actually
was a privilege, I wish to consider the question of waiver of the solicitor
and client privilege as claimed. Sopinka and Lederman in their Law of
Evidence in Civil Cases, in discussing such waivers, state at p. 182: "Two
essential requirements must be present in order for waiver to be established.
The holder of the privilege must possess knowledge of the existence of the
privilege which he is foregoing and also a clear intention of waiving the
exercise of his right of privilege. Although waiver may be expressly given,
such cases are few. More frequent are those cases in which the waiver is by
implication only. If the holder of the privilege makes a voluntary disclosure
or consents to disclosure of any material part of a communication, then
there will be a waiver."

The resolution of October 22, 1987, mentions the possible future
publication of the Board's position. On October 26, 1988, Mrs. Denise Tay-
lor delivered a three-page statement of the Board to the Regional council
outlining the history of the Inquiry and the events leading up to it.

The statement commenced:

"Thank you for the invitation to meet with you today. Although the
Board of Commissioners of Police had asked for an informal in ca-
mera meeting, we have re-thought our position and have concerns
that the public should have access to information. We would like
this to be an open and public session."

It then briefly set out the history of the laying of Police Act charges
against Mr. Gayder, his suspension, the discovery of a cache of 550 pro-
hibited weapons, Mr. Gayder' s resignation and the appointment of the In-
ternal Investigation Team. It then goes on to say:

"In June 1 987, the Special Investigative Unit presented a six-volume
report to Douglas C. Hunt, the Assistant Deputy Attorney General
for Ontario. It was anticipated that Mr. Hunt would advise as to the
appropriate charges to be laid. As the Board understands it, the Nia-
gara Regional Police Force did not receive a response until October
15, 1987, when Mr. Hunt stated that, in law, there existed no reason-
able and probable grounds to lay criminal charges in connection with
the six-volume report. Shortly thereafter Chief Shoveller referred the

518 Ridings

matter to the Board for its consideration. The Board retained coun-
sel and was advised to seek three independent opinions from senior
counsel with experience in the field of criminal law. By early No-
vember, 1987, the Board was in receipt of these independent legal
opinions which held, to varying degrees, that there existed ample
evidence upon which various criminal charges could have been laid.
It was at this time that the Board voted unanimously to request that
the Solicitor General for Ontario appoint a Judicial Public Inquiry."

And then it goes on for two or three pages to explain other matters.

In Smith v. Smith, [1958] O.W.N, at p. 135, Senior Master Marriott
states at p. 136:

"... the plaintiff Thomas Smith by filing an affidavit setting out the
gist of the conversations had between himself and his former soli-
citor thereby waived any privilege he may have had respecting such
conversations.

There was a dearth of authority on the point in our Courts, but in
Wigmore on Evidence, (3d) at p. 214 of the supplement, recent
American authorities are cited for the proposition that where a client
voluntarily testifies as a witness to confidential communications
made by him to his attorney, he thereby waives the privileged
character of such communications and then both he and his attorney
may be fully examined in relation thereto. This appears to be a
proper and logical conclusion that should be applied and followed
here. It seems to me that it would be most unfair to allow the
plaintiff to base his application for relief on information he alleges
was given to him by a solicitor, and then obtain privilege for such
communication and thus prevent the defendant from checking the
accuracy of the plaintiffs statement."

Along the same line, the Ontario Court of Appeal in Harich v.
Stamp, 27 O.R. (2d) 395, at p. 400, stated:

"In my respectful view, having regard to the evidence which had al-
ready been given, the learned trial Judge erred in holding that there
has been no waiver of the solicitor-client privilege. Reference may
usefully be made to McConnick on Evidence, (2d) (1972), p. 194:

Rulings 519

Waiver includes, as Wigmore points out, not merely words or
conduct expressing an intention to relinquish a known right but
conduct, such as a partial disclosure, which would make it unfair
for the client to insist on the privilege thereafter."

It may be concluded from the resolution of the Board of October 22,
1987, that the Board in requesting opinions from the three counsel at least
contemplated the possibility of using them to publicly state the Board's po-
sition on the Attorney General's report regarding criminal charges against
Mr. Gayder.

By publicly quoting what the Board took to be the gist of those opi-
nions, stated to be in consensus "to varying degrees," the Board waived any
solicitor-client privilege it may have had and thereupon made it necessary
in the interests of fairness, as set out in the cases quoted, to allow Mr.
Gayder's counsel the opportunity of checking the accuracy of the public
statement and of the information upon which the opinions were based.

I accordingly order that the opinions of the three counsel referred to
in the statement of October 26, 1988, being Exhibit 50A, be produced and
that counsel be permitted to examine witnesses as to the information upon
which those opinions were based.

520 Rulings

Ruling of March 5, 1990: Production of documents -
Board minutes and tapes

(Orally) In my ruling of February 20, 1990, upon Mr. Pickering's motion
for production, amongst other items, of certain minutes of the Board of
Commissioners of Police for reasons then given, I ordered that the minutes
be produced for inspection by Board counsel and Commission counsel, with
the proviso that if they could not agree on relevancy the issue would be
referred to me for decision.

In regards to matters on which there might be a claim of solicitor
and client privilege, I suggested that the same procedure commended itself
to me, that is, for me to examine the grounds for the alleged privilege by
examining the minutes or document in question and there upon to make a
finding of privilege or no privilege.

But I reserved decision on the issue until I had an opportunity to
confirm what I thought was the jurisprudence in that regard.

There are remarkably few reported cases on the point and those that
do exist concern mainly the merits of the privilege which is claimed, taking
it for granted that the procedure would be similar to that in other situations
where the question of admissibility is raised, that is, that the judicial officer
will privately read the document in question, decide whether it discloses pri-
vilege, and if necessary and practical, edit any privileged portions.

In Mancao v. Casino et al 4 CPC, p. 161, Mr. Justice Steel, on
appeal from a Master's decision on a claim of solicitor and client privilege,
said at p. 163:

"If the parties cannot agree as to the proper editing thereof, the
Master shall edit them so as to remove any comment or remark
that may be personal."

In Mercaldo v. Poole, 13 CPC, p. 129, in a similar appeal from a
Master, Mr. Justice Steel made a similar ruling pointing out that he had
read the letter in question and re-sealed it and decided that it was not
privileged and remitted it to the master to edit it and the edited letter was
then to be produced to the Applicant.

Casey v. The Queen, 30 CCC (3d) 498 is a 1986 decision of the Su-
preme Court of Canada concerning a claim of Crown privilege on certain

Rulings 52 1

cabinet documents. At p. 510 of that report, the Court quoted with approval
from a House of Lords' decision in Conway v. Rimmer, where it held that
the documents in question should be produced for inspection and if it was
found that disclosure would not be prejudicial to the public interest, or that
the possibility of such prejudice was insufficient to justify them being
withheld, disclosure would be ordered.

It stated that it was the Court that must determine the balance to be
struck between the public interest and the proper administration of justice
and the public interest in withholding certain documents or other evidence.
The Supreme Court of Canada then ordered disclosure of the documents for
the Court's inspection.

I recognise that the principles applied to Crown privilege are some-
what different from those applicable to solicitor and client privilege, but the
same procedure should apply for examining the documents to determine the
nature and extent of the alleged privilege.

While, as I said in my ruling of February 20, I am not sure that a
Board specifically covered by the Order in Council constituting this Inquiry
has a right to claim privilege, if there is such a right, it is on the decided
cases subject to this Tribunal's inspection of the document in question to
determine if it is in fact privileged.

I accordingly order that upon production of the materials referred to
in my ruling of February 20, as set out on p. 7 of vol. 160 of the transcripts
of evidence of this Inquiry, if counsel for the Board claims solicitor and
client privilege the issue will be referred to me for a decision and I will, if
necessary, privately inspect the document in question in order to assist me
in my decision as to its privileged nature and as to whether its weight and
relevancy is sufficient to justify its production.

I have no intention of interfering with the confidentiality of the
Board's internal administration unless the material is so directly relevant to
the conduct of this Inquiry that its relevancy outweighs the prejudice to the
Board's interest in maintaining its privacy. Such material, or such parts of
it as may be ruled admissible by me, shall then be produced and made avai-
lable for use in this Inquiry.

522 Rulings

Ruling of July 8, 1991: Production of documents -
Board minutes and tapes

(Orally) I believe that the last time we were here that we proceeded with
Mr. Pickering's motion regarding production of certain tapes. I reserved my
decision on that, and accordingly I will deliver my ruling now.

Because the motion was made in camera, and then the examination
of certain tapes were made in completely private sessions, I will be going
into some detail about the proceedings because I had undertaken to publicly
set it out after being in camera, so long as I did not reveal anything that
should not be made public. Quite frankly on that, I don't think there was
anything that occurred that I needed to avoid mentioning in public.

On February 14, 1990, David Pickering (counsel for James Gayder)
brought on a motion for an order directing the production, amongst other
items, of all minutes of the Niagara Regional Board of Commissioners of
Police, both public and confidential, from February 1987 up to the time of
that motion, as well as all recordings by tape or otherwise of such meetings.

The Board refused to produce the materials and following argument
on February 20, 1990, 1 ruled that materials (referred to above) be produced
by Board counsel to Inquiry counsel for examination by both of them as to
relevancy. I ruled that if these counsel could not agree as to the relevancy
of certain material, the issue was to be referred to me for a decision.

On March 5, 1990, as a result of a further application to me, as I re-
call it, I further ruled that if Board counsel claimed solicitor and client
privilege in relation to any item I that I had ordered to be produced, and
Commission counsel did not agree with that claim, then the issue would be
referred to me for a decision, in the same way as that regarding relevancy.

There was considerable delay in the production of some of the tapes
in question, since it appeared that some tapes that were requested had either
never existed, or had been lost. In particular. Commission counsel was ask-
ing for tapes of the Board meetings of October 22, and November 5, 1987,
and August 18, 1988. A number of letters and telephone calls were ex-
changed between counsel for the Board and counsel for the Commission.

Eventually, on February 7, 1991, tapes for October 22, 1987, and
three of the four tapes (I believe tapes N°. 1, 2, and 4 of the November 5,
1987, meetings) were turned over to the Inquiry investigators for delivery

Rulings 523

to Commission counsel, with the information that the middle tape of the
November 5, 1987, meeting could not be located and that as far as could
be ascertained, the tape for the August 18, 1988, meeting had either been
mislaid or had never existed, because the meeting may not have been taped.

Following an exchange of letters and telephone calls between coun-
sel. Board counsel on March 19, 1991, advised Commission counsel that
several other tapes that had been requested were available, and suggested
that he and Commission counsel sit down and examine for relevancy of the
contents of the tapes that were available. Commission counsel replied that
there was little point to this until the missing tape of November 5, 1987,
and the missing tapes from the August 18, 1988, meeting were located
which would enable him to consider the relevancy of all the tapes as a
whole. However, with the date for final submissions fast approaching, and
the missing tapes not having been located, on April 22, 1991, Commission
counsel wrote to Board counsel advising of the portions of the available
tapes and minutes which he wished to produce at the Inquiry hearings, and
reserving his rights regarding the missing tapes if they did turn up and if
there were in fact such tapes.

On April 27, 1991, Board counsel orally advised Commission coun-
sel that he was seeking further instructions from the Board of Commis-
sioners of Police. Eventually Board counsel advised that the Board objected
to the production of any of the materials requested. On June 25, 1991,
Commission counsel and Board counsel appeared before me in camera.
Commission counsel applied for a ruling as to the admissibility of the
available tapes and minutes that he wished to produce in public.

The first of these was a tape entitled "Denise R. Taylor, '87/04/06,
Statement Gayder events '86 and '87." This was a lengthy taped statement
made by Denise Taylor, apparently sometime early in 1987. At the outset
Mrs. Taylor is heard stating that it is a draft of a report that she intended
to submit to the Niagara Falls Chamber of Commerce. I have listened to the
tape and obviously that part of it was not part of her statement on the date
in question, and her statement was apparently recorded over a previous re-
port she had dictated regarding the Niagara Falls Chamber of Commerce
statement she wished to make.

The tape, as I heard it, is apparently Mrs. Taylor's recollections, ex-
periences, and impressions relating mainly to James Gayder during her first
year as Board member. It is almost a duplicate of the typed will-say state-
ment of Denise Taylor, which commences:

524 Rulings

"The following is a statement made by myself, Denise Taylor, at the
request of Sergeant VanderMeer ..."

And it goes on, in very, very similar and sometimes identical state-
ments to those that were contained in the tape I have just referred to. That
will-say statement is found as Exhibit 314.

As a matter of fact, at the very beginning of the tape after the re-
marks about the Niagara Falls Chamber of Commerce, there is a great jum-
ble of noises and voices. Obviously the tape was being set up for a state-
ment, and Sergeant VanderMeer' s name is clearly heard. At intervals during
Mrs. Taylor's statement, a voice in the background can be heard, the voice
resembling that of Sergeant VanderMeer. In Sergeant VanderMeer's note
book for February 20, 1987, which is filed as Exhibit 317B, at p. 1 1, he has
written: "Note: re. possible taping of Denise's story."

Accordingly, I can only conclude that the tape formed the basis for
the statement produced as Exhibit 314, that is, the will-say statement.

Mr. Shoniker, on behalf of the Board, objects to the production of
the tape because it was made privately and not for Board purposes, and is
privileged as being made in contemplation of litigation for the purposes of
instructing counsel. When asked how the Board could claim solicitor and
client privilege (which is a very personal privilege) on behalf of Mrs.
Taylor, Mr. Shoniker stated that although Mrs. Taylor purposely did not at-
tend the meeting which instructed Mr. Shoniker against the production of
the tapes, nevertheless, she had given permission to the Board to claim her
privilege.

I am by no means satisfied that one can assign such a personal pri-
vilege, but in view of my other conclusions, it is not necessary to come to
a decision in that regard.

When asked what litigation was contemplated that gave rise to the
claim of privilege, Mr. Shoniker simply replied that the issue had not been
addressed when he received instructions from the Board. I received no fur-
ther information in this regard, and under the circumstances I can find no
basis for a claim of solicitor and client privilege. I am satisfied the tape was
made as the basis for the will-say statement prepared by Sergeant Vander-
Meer and filed as Exhibit 314, and that, to my mind, was not prepared for
the purpose of litigation. The taped statement is relevant for the same rea-
son the will-say statement, itself, is relevant (there was never any argument

Rulings 525

about that) as being background information about the circumstances that
led up to the filing of Police Act charges against then-Chief James Gayder,
which was an important part of the reason for the subsequent call for this
inquiry. I accordingly rule that the tape in question and the transcript of it
be produced and made an Exhibit in this Inquiry.

The second item in issue is an extract from the transcription of a
tape of the Board's in camera meeting of October 22, 1987. The Internal
Investigation Team had prepared a critique of the comments made by off-
icials from the Attorney General's department concerning the Internal
Investigation Team's six-volume report, which had been filed with the At-
torney General's department, and is also tiled as an Exhibit here. Copies of
the critique, which is now filed as Exhibit 56, were distributed at the
October 22, 1987, Board meeting and Chief Shoveller was asked to explain
it and answer questions about it, which he did.

Mr. Shoniker for the Board, in his argument, objected that the tran-
script was not relevant, and its contents were outside the jurisdiction of this
inquiry.

During the course of this Inquiry, it has been apparent that the
Board was extremely upset by the conclusions reached by the personnel at
the department of the Attorney General, to the effect that criminal charges
against Mr. Gayder were not warranted, to the extent that it commissioned
opinions from three separate lawyers who were asked to examine the Attor-
ney General's conclusions. After receiving these opinions, the Board called
for this Commission of Inquiry.

There have been questions raised in the media as to the necessity for
this Inquiry, and a good deal of evidence has been admitted in that regard.
I consider that the Board's discussions of the critique which has already
been the subject of considerable evidence is quite relevant to a consider-
ation of the circumstances resulting in the calling of this Inquiry. Such a
consideration is within the Inquiry's mandate to report on the factors which
caused the public to lose confidence in the Force. I assume that Mr. Shon-
iker's reference to lack of jurisdiction refers to the examination of the
transcripts of in camera meetings of the Board. I have already ruled in my
February 20, 1990, ruling that that is within my jurisdiction and I accor-
dingly order that the transcript of the Board's October 22, 1987, meeting,
pages one to 47 (which is all that were applied for by Commission Coun-
sel), be admitted in evidence.

526 Rulings

The third transcript in issue is that portion of a May 28, 1987, meet-
ing contained in the Board transcript of that meeting, pp. 12 to 23. This
portion of the transcript covers Acting Chief Shoveller's update, requested
by the Board, of the progress of the Internal Investigation Team during its
first three months of operation, and of a meeting held with the Attorney
General. Mr. Shoniker submits that this is not relevant, and is beyond my
jurisdiction. The Internal Investigation Team investigation has been
extensively covered in evidence, and I consider the Board's attitude in that
regard as relevant in the context of what prompted its later request for an
inquiry, in order that I may better determine how the problems disclosed
may be prevented or minimized in future. So I rule that pp. 12 to 23 of the
May 28, 1987, transcript be admitted into evidence.

The fourth matter in issue is that Commission counsel proposes to
put on the record a statement to the effect that the three available tapes
from the meeting of November 5, 1987, reveal:

1) that a letter dated October 27, 1987, to the three lawyers
referred to earlier, was read and approved by the Board.

2) that the Greenspan/Humphrey opinion gave the Board
concerns and it was accordingly decided to closely question
Sergeant VanderMeer as to documented facts to show prior
ownership of Gayder's guns which would be so clear as to
remove the case from prosecutorial discretion.

3) the balance of the discussion consisted in reading and
commenting on two of the opinions, and that the only
subjects discussed were Gayder, and guns, and property.

I have looked at the transcript of those tapes, and I am satisfied that
most of it is not relevant. But I am satisfied that the statements just read
fairly summarize the relevant portions of the three tapes of the November
5, 1987, meeting and as I recall Mr. Shoniker did not argue otherwise. For
the reasons I have given in relation to issues N°. 2) and 3), I rule that the
statements are relevant and within my jurisdiction and that they may be put
on record as part of the evidence.

In addition to the above. Commission counsel proposed to put in as
in camera evidence, an extract from the transcript of the May 28, 1987,
Board meeting, pp. 34 and 56, relating to the trip to the Attorney General's
department made by representatives of the Police Association to protest the
manner in which the Internal Investigation Team's investigation was being
conducted. He also proposes to put in, as in camera evidence, an extract

H Idlings 527

from the transcript of the tape of the October 22, 1987, Board meeting, pp.
48 to 107, relating to a restructuring of the senior ranks of the Force.

I consider that a good deal of the information contained in these ex-
cerpts are within my mandate, and that it is relevant. But it is so inter-
twined with personnel information, that should not be made public, that I
concur with Commission counsel's recommendation that it be admitted as
in camera evidence, and I so rule. Only portions, of course, of those tran-
scripts relating to matters concerning this Inquiry may be referred to by any
counsel, and not the balance of those transcripts that deal with other per-
sonnel information.

528 Rulings

Ruling of April 30, 1990: Ability of the Inquiry to examine
potentially criminal conduct - the impact of the Starr v. Houlden

decision

{Orally) Based on the decision in Starr et al. v. Houlden, delivered by the
Supreme Court of Canada on April 5, 1990, counsel for Sergeant Vander-
Meer has requested a ruling on the effect of that decision on the present In-
quiry and particularly on the phase of this Inquiry investigating the manner
in which the Internal Investigation Team, of which Sergeant VanderMeer
was a member, carried out its investigation in 1987.

In essence, his submission is that the investigation of the Internal In-
vestigation Team's conduct has turned into a Preliminary Inquiry as to his,
that is VanderMeer's, possible criminal conduct, namely. Obstruction of
Justice in failing to disclose in the Internal Investigation Team's report to
the Attorney General that, to his knowledge, the so-called Sacramento gun
could not be the same gun as that found in ex-Chief Gayder's closet.

The identity of that gun was said to be a key feature of the Internal
Investigation Team's case against Mr. Gayder.

Accordingly, he submits that the 5mrr decision prohibits such an in-
vestigation by this Inquiry. Some other counsel have supported this sub-
mission and have gone further to subm.it that the Starr decision prohibits
this Inquiry from any fmding of misconduct that might show criminality.

It has been apparent throughout this Inquiry that from the inception
of the Niagara Regional Police Force on January 1, 1971, the Force has
been beset by rumours, wide-spread throughout the Niagara Peninsula as
well as within the Force itself, of police misconduct, illegal conduct, in-
appropriate conduct, negligence, mismanagement, illegal wiretapping and
connections with organized crime.

Several investigations by outside police agencies resulted without
charges being laid and the public's confidence in the Force deteriorated
considerably over the years. Press releases setting out the conclusions of the
investigations were issued but the reports themselves were not made public.

In early 1987, then-Chief Gayder retired following the laying of
three and the drafting of several other police charges against him and for
some seven or eight months thereafter an Internal Investigation Team of the
Force investigated the possibility of criminal charges against the ex-Chief.

Rulings 529

Six or seven volumes of evidence and submissions were delivered
to the Attorney General who, in October 1987, advised that his department
did not consider there was sufficient evidence to lay charges, that is,
criminal charges.

The Board of Police Commissioners then petitioned the Solicitor
General for a Public Inquiry and an Order in Council ordering the present
Inquiry was issued on March 25, 1988.

At the outset, it might be useful to quote the preamble to the present
Inquiry's Order in Council, and to summarize the terms of reference. The
Order in Council orders that:

"Whereas concern has been expressed in relation to the op-
eration and administration of the Niagara Regional Police
Force and whereas the expression of such concerns may
have resulted in a loss of public confidence in the ability of
the Force to discharge its law enforcement responsibility
and whereas the Niagara Regional Board of Commissioners
of Police has asked the government of Ontario to initiate a
public inquiry into the operation and administration of the
force and whereas the government of Ontario is of the view
that there is a need for the public and members of the force
to have confidence in the operation and administration of
the force and whereas it is considered desirable to cause an
inquiry to be made of these matters which are matters of
public concern, now therefore pursuant to the provision of
the Public Inquiries Act, R.S.O. 1980, Chapter 41 1, a Com-
mission be issued appointing the Honourable Judge W.E.C.
Colter who is, without expressing any conclusion of law re-
garding the civil or criminal responsibility of any individual
or organization, to inquire into, report upon and make
recommendations with respect to the operation and admin-
istration of the Niagara Regional Police Force since its
creation in 1971, with particular regard to the following;"

It then proceeds to set out 12 particular areas to be examined in ad-
dition to the general mandate already expressed, and I will attempt to sum-
marize them.

They concern such matters as hiring and promotional practices, stor-
age and disposal of seized property, policies regarding the use of police re-

530 Rulings

sources for private purposes, inappropriate management procedures, rela-
tions between the Force and the Board of Pohce Commissioners, reporting
relationships between senior officers and the Board, internal reporting re-
lationships within the Force, public complaints procedures, the propriety,
efficiency and completion of any other investigations into the activities of
the Niagara Regional Police Force (of which there have been several) by
other police agencies, the action taken to correct problems identified by
such investigations, the morale of members of the Force, whether the
January 1, 1971, amalgamation of the area forces had beneficial results, re-
lations with the news media and policies relating to release of information
to the media, and the twelfth and last item I will quote in full since I will
be referring to it later:

"Improprieties or misconduct on the part of members of the
Forces or other police agencies arising out of the matters
herein enumerated."

Unfortunately, because the Starr decision is only three weeks old,
I do not have the assistance of an analysis of the Supreme Court of Can-
ada's ratio decidendi, which I am sure will be forthcoming from many legal
authors in the near future.

Early in his judgement, delivered by Mr. Justice Lamer on behalf
of the majority of the Supreme Court of Canada, he pointed out the
limitations on a Provincial Inquiry. At p. 20 of his judgement he stated:

"At the outset, it is worth noting that this Court has con-
sistently upheld the constitutionality of Provincial Commis-
sions of Inquiry and has sanctioned th'e granting of fairly
broad powers of investigation which may incidentally have
an impact upon the federal criminal law and procedure pow-
ers. At the same time, however, this Court has consistently
held that the power of the provinces to establish Commis-
sions of Inquiry is not constitutionally unlimited."

One of the limitations he referred to is that a province cannot create

an Inquiry that in substance serves as a substitute police investigation and
Preliminary Inquiry with compellable accused in respect of a specific crim-
inal offence, thus putting the Commissioner, "in a similar position as a
judge conducting a Preliminary Inquiry under Section 535 of the Criminal
Code.''

Rulings 53 1

The judgement refers to the Supreme Court of Canada decision in
Faber v. The Queen [1976] 2 SCR 9, where the Court held that the invest-
igation of crime was only incidental to the predominant aspects of an in-
quest which were within the jurisdiction of the province, such as satisfying
the public as to the cause of death, making the public aware of factors
which put human life at risk and reassuring the public that the Government
is acting to ensure that the guarantees relating to human life are duly
respected.

Mr. Justice Lamer then says that the Court in Faber correctly exam-
ined the Coroner's Inquest, both in terms of purpose and effect, and con-
cluded that it was not an improper invasion into criminal law and criminal
procedure, having a primary purpose other than the investigation of whether
a specific crime was committed.

Mr. Justice Lamer also referred to the Attorney General (Que) and
Keable v. the Attorney General (Can.), [1979], 1 SCR 218, which involved
a Provincial Inquiry into various illegal acts allegedly committed by police
forces, including the RCMP, as well as specific acts of illegal entry, barn
burning and theft, but no individuals were named.

Mr. Justice Lamer, noting that the Keable Court upheld the constitu-
tionality of the Inquiry, stated at p. 25 of his judgement:

"I also note that in Keable, the terms of reference of the
Commission empowered it to investigate such specific 'il-
legal or reprehensible acts' so that it could make recom-
mendations to ensure that those acts would not be repeated
by the RCMP in the future. In that light, while the Commis-
sion no doubt was empowered to inquire into certain potent-
ially illegal activity, the inquiry's focus was on the more
general issue of RCMP methods of investigation and wrong-
doing in that context, a matter within Provincial juris-
diction."

He then quoted Mr. Justice Estey in the Keable case as follows:

"The investigation of the incidents of crime or the profile
and characteristics of crime in a province, or the invest-
igation of the operation of Provincial agencies in the field
of law enforcement, are quite different things from the in-
vestigation of a precisely defined event or series of events

532 Rulings

with a view to criminal prosecution. The first category may
involve the investigation of crime generally and may be un-
dertaken by the invocation of the Provincial Inquiry statutes.
The second category entails the investigation of specific
crime, the procedure for which has been established by par-
liament and may not be circumvented by Provincial action
under the general inquiry legislation, anymore than the sub-
stantive principles of criminal law may be so circumvented."

Mr. Justice Lamer then goes on at the bottom of p. 26:

"The key, according to Estey J., was where to draw the line.
While the Province is within its jurisdiction to investigate
allegations or suspicions of specific crime with a view to
enforcement of the criminal law by prosecution of particular
individuals, it must do so in accordance with federally des-
cribed criminal procedure and not otherwise as, for example,
by the Inquiry process. Estey J. fleshed out this position in
the following way, at p. 258:

Where the object is in substance a circumvention of the pre-
scribed criminal procedure by the use of the enquiry tech-
nique with all the aforementioned serious consequences to
the individuals affected, the Provincial action will be in-
valid as being in violation of either the criminal procedure
validly enacted by authority of s. 91(27), or the substantive
criminal law, or both. Where, as I believe the case to be
here, the substance of the Provincial action is predominant
and essentially an enquiry into some aspects of the criminal
law and the operations of Provincial and municipal police
forces in the Province, and not a mere prelude to prosec-
ution by the Province of specific criminal activities, the
Provincial action is authorized under s. 92(14)'."

Mr. Justice Lamer then at p. 28, sums up the decisions as laying
down that the Inquiry process cannot be used by a Province to investigate
the alleged commission of specific criminal offences by named persons,
since to do so would be to circumvent the criminal procedure which is
within the exclusive jurisdiction of Parliament.

Rulings 533

He then speaks of the dangers pointed out by Mr. Justice Martin of
the Ontario Court of Appeal in Hojfman-LaRoche Ltd [1981], 33 OR (2d)
694:

"What is important is that a finding or a conclusion stated
by the Commissioner would be considered by the public as
a determination and might well be seriously prejudicial if a
person named by the Commissioner as responsible for the
deaths in the circumstances were to face such accusations in
further proceedings. Of equal importance, if no charge is
subsequently laid, a person found responsible by the Com-
missioner would have no recourse to clear his or her
name...

"Further, it is a reasonable inference that a person intends
the natural consequences of his acts and such a finding as
that referred to against a nurse, in this case, would leave
nothing further to be said to amount to a conclusion
forbidden by the Order in Council."

Mr. Justice Lamer then considers the most recent decision of the Su-
preme Court of Canada in O'Hara v. British Columbia [1987] 2 SCR 591,
holding that a Provincial Inquiry investigating alleged injuries sustained by
a prisoner while in custody at a police station was constitutional. Crown
counsel had ruled that lack of identification of the alleged assailant pre-
vented criminal charges. A Police Act hearing had dismissed the complaint
for lack of evidence. The Province then by Order in Council instituted a
Commission of Inquiry:

"To enquire into and report on all matters associated with
the alleged injuries sustained by Michael Albert Jacobsen...
and upon results of the internal police inquiry investigations
and hearings following complaint by Mr. Jacobsen under the
Police Act, and whether all relevant evidence was properly
adduced and truthfully given at these inquiries and hearings.
In particular, the Commission is directed to inquire, invest-
igate and report on (a) all factors surrounding the detention
of Jacobsen at the Vancouver Police Station on September
30, 1983, particularly the reason for and the period of de-
tention, (b) whether Jacobsen sustained injuries while de-
tained in Police custody, and if so, the extent thereof, the
person or persons who infiicted them, the reason for so in-

534 Rulings

flicting them and the time and place the injuries were sus-
tained, (c) whether any member of the staff of the Vancou-
ver Police Force or any other person contributed to, or had
or acquired knowledge of, Jacobsen's injuries, and if so,
who were they, where and to what extent did each contrib-
ute to the injuries, or have or acquire such knowledge, (d)
whether any police officer who had knowledge of perpetra-
tion of assault (if any) on Jacobsen took steps to protect him
from injury, and if not, why not, and (e) all records of inter-
nal disciplinary investigations, legal proceedings and other
inquiries which took place as a consequence of complaints
by Jacobsen under the Police Act or by civil action against
the Vancouver Police Force, and whether in the opinion of
the Commissioner evidence was falsified, not adduced or
suppressed at any of these investigations, proceedings and
inquiries, and if so, to what extent and, where appropriate,
by whom."

It is interesting to compare these terms of reference, referring to
specific wrongdoing, with the very general terms of this present Inquiry as
earlier quoted.

The police officers involved in the O'Hara Inquiry applied for an
order declaring the Order in Council ultra vires the Province, and the trial
and appeal judgements dismissing the application were further appealed to
the Supreme Court of Canada.

Mr. Justice Lamer comments on the Supreme Court of Canada
judgement, and then goes on to distinguish that case on the facts from the
situation in the Starr Inquiry. I intend to quote at some length from Mr.
Justice Lamer' s observations on the O'Hara decision.

Commencing at p. 30 of his judgement, Mr. Justice Lamer states:

"Finally, my analysis of judicial precedent ends with the re-
view of the most recent decision of this Court in this area,
O'Hara v. British Columbia. This case concerned a Provin-
cial Inquiry investigating alleged injuries sustained by a pri-
soner while in custody at a police station ... The Chief Jus-
tice delivered the majority judgement of this court
upholding the constitutionality of the inquiry.

Rulings 535

In so doing, he explicitly recognized, at p. 607 that:

'A Province must respect federal jurisdiction over criminal law and
criminal procedure.'

The Chief Justice agreed with the decision of Legg J. of the British
Columbia Supreme Court who held that s. 92(14) authorizes a
Province to establish an Inquiry to investigate and report on alleged
wrongdoing committed by members of a police force under its
jurisdiction."

In this respect he went on to hold at pp. 607-08 that:

"Section 92(14) not only authorizes the establishment of Provincial
Commissions of Inquiry in certain circumstances, but also grounds
Provincial jurisdiction over the appointment, control and discipline
of municipal and Provincial police officers."

Furthermore, at pp. 610-11, the Chief Justice expanded on the
grounds for holding the Inquiry to be within Provincial competence
by placing the discussion in the context of general division of
powers of adjudication:

"A matter may well fall within the legitimate concern of a Provin-
cial legislature as pertaining to the administration of justice, and
may, for another purpose, fall within the scope of federal jurisdic-
tion over criminal law and procedure ... Such is the case in the pre-
sent appeal ... A Province has a valid and legitimate constitutional
interest in determining the nature, source and reasons for inappro-
priate and possibly criminal activities engaged in by members of po-
lice forces under its jurisdiction. At stake is the management of the
means by which justice is administered in the province. That such
activity may later form the basis of a criminal charge and thus en-
gage federal interest in criminal law and criminal procedure, does
not in my view, undermine this basic principle ... The present In-
quiry is aimed at getting to the bottom of an incident of police mis-
conduct which has undermined the proper administration of justice.
The federal authorities have no jurisdiction over the discipline of the
police officers who are the subject of the Inquiry ... The Inquiry is
mandated to investigate alleged acts of wrongdoing for purposes dif-
ferent from those which underlie criminal law and criminal proce-
dure. The purpose of the Inquiry is not to determine criminal

536 Riflings

responsibility. As such it is no different from a Coroner's Inquiry,
the constitutionaHty of which was affirmed by this Court in Faber,
supra'."

Mr. Justice Lamer continues at p. 31:

"In my view, this passage from the judgment of the Chief Justice
reconciles to a large extent the cases that have gone before in this
area, while adhering to well established principles of adjudication
in the context of division of powers, the comments of the Chief Jus-
tice recognize that there may be a 'double aspect' to a Commission
of Inquiry. There will be cases, however, where the Court is able to
identify a predominant feature that outweighs the competing, inci-
dental aspect.

In Keable, for example, while the Commission was empowered to
investigate certain alleged criminal acts committed by police forces,
its focus was on methods of police investigation, improprieties in
relation thereto, and recommendations for ensuring that reprehen-
sible acts were not repeated.

Similarly, in O'Hara, the Chief Justice identified, at p. 610, the
'management of the means by which justice is administered in the
province' as the predominant feature of the inquiry.

Additionally, the Chief Justice in O'Hara, while upholding an In-
quiry into a specific incident, the conclusions of which may have
led to criminal charges, explicidy made clear that the Inquiry was
intra vires the Province because it did not serve to affix criminal
responsibility to a particular individual. Rather, it was more
generally concerned with police misconduct. Of some note is the
fact that in O'Hara a hearing under the Police Act in relation to the
incident at issue exonerated the police of any wrongdoing. There
was no on-going independent police investigation into possible
criminal charges.

Finally, and in my view an element of the decision that is of great
importance, is the following caveat found at pp. 611-12:

'A Province may not interfere with federal interests in the
enactment of and provision for a uniform system of criminal justice
in the country as embodied in the Criminal Code. An Inquiry en-

Rulings 537

acted solely to determine criminal liability and to bypass the
protection accorded to an accused by the Criminal Code would be
ultra vires of a province, being a matter relating to criminal law and
criminal procedure. This limitation on Provincial jurisdiction is an
acknowledgement of the federal nature of our system of self-
government.'

This limitation is reminiscent of the language used by Dickson J.
(as he then was) in Di lorio and that of Estey J. in his concurring
reasons in Keable.

In sum then, the decision in O'Hara speaks as much to the limit-
ations on Provincial Commissions of Inquiry as it does to their
breadth. The judgment is a clear affirmation of the view that the
pith and substance of a Commission must be firmly anchored to a
Provincial head of power, and that it cannot be used either pur-
posely or through its effect, as a means to investigate and determine
the criminal responsibility of specific individuals for specific
offences."

In view of the approval of the O'Hara majority decision by both the
majority and minority judgements of the Supreme Court in Starr, I propose
to refer to some further comments of the Chief Justice in the (9'//«ra judg-
ment. In doing so, for purposes of continuity, I may repeat some of the
above quotations.

At p. 602 of O 'Hara, the Chief Justice quotes Mr. Justice Legg, the
trial judge, as follows:

"In my respectful opinion, when the text of the whole Order
in Council is examined in the context of the surrounding
circumstances, the Inquiry which is authorized by the Order
in Council may be fairly categorized as one which in pith
and substance is an Inquiry into the administration of justice
in the province."

And further, at p. 603, the Chief Justice quotes Justice Legg as
saying:

"I agree with counsel for the Attorney General that the
Commission of Inquiry appointed by the Order in Council
is a recommendatory not an adjudicative body. It will report

538 Rulings

findings to the Lieutenant-Governor in Council. It will make
no determination as to guilt or innocence or civil or criminal
liability. It cannot terminate the employment or otherwise
discipline any person. Nor will its report necessarily lead to
any subsequent proceedings against anyone. That being so,
it cannot be said that the Inquiry will deprive any person of
liberty or security of the person."

The Chief Justice also, at p. 603, quotes from Mr. Justice Seaton's
judgement in the British Columbia Court of Appeal:

"There was something very wrong at the Vancouver Police
Station that night. Justice cannot properly be administered
until what happened in this case is discovered, because only
then can steps be taken to ensure that it does not happen
again. As well, public confidence in the administration of
justice is threatened by what has happened here. A public
Inquiry is necessary so that the public will know that this
matter is being dealt with. Incidental to the inquiry, evi-
dence might be discovered that would lead to charges being
laid. That possibility does not make the Inquiry ultra vires.
I agree with Mr. Justice Legg. I would dismiss the appeal."

At p. 605, the Chief Justice approves of the above remarks in the
following words:

"Legg J. of the British Columbia Supreme Court indicated
the general nature and effect of major cases on point, and in
my opinion, correctly concluded that, despite parliament's
exclusive jurisdiction over criminal law and criminal pro-
cedure, s.92(14), authorizes a Province to establish an
Inquiry to investigate and report on alleged wrongdoings
committed by members of a police force under its juris-
diction, and to enable such an Inquiry to conduct com-
pulsory examinations of witnesses. I agree with the
judgments of the British Columbia Courts."

At pp. 607-08 of the 0'//ara judgement, the Chief Justice, referring
to the Constitution Act, 1867, says:

"Section 92(14) not only authorizes the establishment of
Provincial Commissions of Inquiry in certain circumstances.

Rulings 539

but also grounds Provincial jurisdiction over the appoint-
ment, control and discipline of municipal and Provincial
police officers. Such was recognized unanimously by this
Court in Keahle (2d). Beetz J. at p. 79 stated this principle
in the following terms:

The mandate of respondent commissioner is concerned not
with the powers, duties and capacities of peace officers as
determined by the criminal law, but with the manner in
which they were in fact exercised in the circumstances des-
cribed in the mandate. These are matters which fall within
the administration of justice and which cover the discipline
of police forces and their members... By the same reason-
ing, a Province can investigate the allegedly illegal or
reprehensible behaviour of a police force within its consti-
tutional jurisdiction, as well as the allegedly illegal actions
of any police officer'."

The Chief Justice at p. 607 warns of the limitations on the prov-
ince's powers which were later emphasized in the Starr decision. He points
out:

"It is true that the authority to establish such an Inquiry is
not without limits. A Province must respect federal jurisdic-
tion over criminal law and criminal procedure. For example,
a Province may not compel a person charged with a crim-
inal offence to testify as a witness before a Provincial
Inquiry into the circumstances giving rise to that charge ...
Nor may a Province enact legislation enabling a police off-
icer to summon a suspect before an official and submit the
suspect to a compulsory examination under oath with res-
pect to his involvement in a crime solely for the purpose of
gathering sufficient evidence to lay criminal charges ...
Despite these limitations, however, the jurisprudence of this
Court leaves little doubt, if any, that a Province in certain
circumstances may endow Provincial Commissions of In-
quiry with coercive investigatory powers."

He continues at p. 610:

"A certain degree of overlapping is implicit in the grant to
the provinces of legislative authority in respect of the ad-

540 Rulings

ministration of justice and in tiie grant to parliament of
legislative authority in respect of criminal law and criminal
procedure. A matter may well fall within the legitimate con-
cern of a Provincial legislature as pertaining to the admin-
istration of justice, and may, for another purpose, fall within
the scope of federal jurisdiction over criminal law and pro-
cedure ... A Province has a valid and legitimate constitu-
tional interest in determining the nature, source and reasons
for inappropriate and possibly criminal activities engaged in
by members of police forces under its jurisdiction. At stake
is the management of the means by which justice is admin-
istered in the province. That such activity may later form
the basis of a criminal charge and thus engage federal inter-
est in criminal law and criminal procedure, does not, in my
view, undermine this basic principle.

As the Attorney General of British Columbia submits, the
present Inquiry is aimed at getting to the bottom of an
incident of police misconduct which has undermined the
proper administration of justice. The federal authorities have
no jurisdiction over the discipline of the police officers who
are the subject of the inquiry. There is no federal involve-
ment in the actions of the Vancouver Police Force. The In-
quiry is mandated to investigate alleged acts of wrongdoing
for purposes different from those which underlie criminal
law and criminal procedure. The purpose of the Inquiry is
not to determine criminal responsibility ... As stated, there
are limits to a province's jurisdiction to establish an Inquiry
and equip it with coercive investigatory authority. Broadly
speaking, those limits are two-fold in nature. First, a Prov-
ince may not interfere with federal interests in the enact-
ment of and provision for a uniform system of criminal jus-
tice in the country as embodied in the Criminal Code. An
Inquiry enacted solely to determine criminal liability and to
bypass the protection accorded to an accused by the Crim-
inal Code would be ultra vires of a province, being a matter
relating to criminal law and criminal procedure."

Mr. Justice Lamer sums up these limitations at p. 33 of the Starr
judgement as follows:

Rulings 541

"In sum then, the decision in O'Hara speaks as much to the
limitations on Provincial Commissions of Inquiry as it does
to their breadth. The judgment is a clear affirmation of the
view that pith and substance of a Commission must be firm-
ly anchored to a Provincial head of power, and that it can-
not be used solely, either purposely or through its effect, as
a means to investigate and determine the criminal responsi-
bility of specific individuals for specific offences."

Applying the principles of the jurisprudence to the Starr case, Mr.
Justice Lamer concludes at pp. 33 to 34:

"In my view, the Commission of Inquiry before this Court
is, in pith and substance, a substitute police investigation
and Preliminary Inquiry into a specific offence defined in
S.121 of the Criminal Code, alleged to have been committed
by one or both of the named individuals, Patricia Starr and
Tridel Corporation Inc. That is not to say that an Inquiry's
terms of reference may never contain the names of specific
individuals. Rather it is the combined and cumulative affect
of the names together with the incorporation of the Criminal
Code offence that renders this Inquiry ultra vires the Prov-
ince. The terms of reference name private individuals and
do so in reference to language that is virtually indisting-
uishable from the parallel Criminal Code provision. Those
same terms of reference require the commissioner to invest-
igate and make findings of fact that would in effect estab-
lish a prima facie case against the named individuals suf-
ficient to commit those individuals to trial for the offence in
s.121 of the Code. The net effect of the inquiry, although
perhaps not intended by the province, is that it acts as a
substitute for a proper police investigation, and for a
Preliminary Inquiry governed by Part XVIII of the Code,
into allegations of specific criminal acts by Starr and Tridel
Corporation. While public officials are involved within the
scope of the inquiry, the investigation of them is defined in
terms of whether they had dealings with Ms Starr or Tridel
Corporation, and is therefore incidental to the main focus of
the commissioner's mandate ...

I note, once again, that a unique aspect of this Inquiry is
that the appellants, Ms Starr and Tridel Corporation, are

542 Rulings

named in the terms of reference. This fact alone distin-
guishes the present case from the other cases this Court has
had to decide. Furthermore, there seems to be a complete
absence of any broad policy basis for the inquiry."

Referring to remarks by the Law Reform Commission of Canada
that investigatory Commissions supplement institutions of government by
performing tasks which these institutions may do less well, he says at p. 36:

"This observation is certainly pertinent in the context of
many Inquiries. In Keable and O'Hara, for example, both
Commissions of Inquiry dealt with police misconduct, a
matter that the criminal process may have difficulty dealing
with because of the potential for conflict of interest."

In coming to his conclusion that the Starr Order in Council
encroached upon the Federal Government's exclusive jurisdiction in
criminal law, and so was ultra vires the Province, he states at pp. 37 to 38:

"In my view, there are two key facts whose combined and
cumulative affect, lead me to the conclusion that this
Inquiry is in effect a substitute criminal investigation and
Preliminary Inquiry.

First, the only named parties are two private individuals,
one being a corporation, who have been singled out for in-
vestigation. Unlike O'Hara, where the named individual
was the victim of alleged misconduct, the present Inquiry
names individuals who are the alleged perpetrators of the
misconduct.

Second, the investigation of these two named individuals is
in the context of a mandate that, as recognized by the Court
of Appeal for Ontario, bears a 'striking resemblance' to
s.l21(l(B)) of the Criminal Code."

He continues at p. 40:

"It is not necessary for the commissioner to make findings
of guilt in the true sense of the word for the Inquiry to be
ultra vires the Province. It suffices that the Inquiry is in
effect a substitute police investigation and preliminary in-
quiry into a specific allegation of criminal conduct by
named private citizens. In my view, the investigation the

Rulings 543

commissioner is asked to undertake, and the findings of fact
he will make as a result of his investigation, place him in a
similar position as a judge conducting a preliminary inquiry
under s. 535 of the Criminal Coder

At p. 42, he states:

"There is no doubt that a number of cases have held that
inquiries whose predominant role is to elucidate facts and
not conduct a criminal trial are validly constituted even
though there may be some overlap between the subject mat-
ter of the Inquiry and criminal activity. Indeed, it is clear
that the fact that a witness before a Commission may subse-
quently be a defendant in a criminal trial does not render
the Commission ultra vires the province. But in no case
before this Court has there ever been a Provincial Inquiry
that combines the virtual replication of an existing Criminal
Code offence with the naming of private individuals while
ongoing police investigations exist in respect of those same
individuals."

At p. 45 he continues:

"What a Province may not do, and what it has done in this
case, is enact a public inquiry, with all its coercive powers,
as a substitute for an investigation and preliminary Inquiry
into specific individuals in respect of specific criminal
offences ... In short, the present Inquiry circumvents the
prescribed criminal procedure for conducting a police
investigation and a preliminary inquiry."

He, accordingly, pronounces the Order in Council to be ultra vires
the Province.

I must now attempt to extrapolate from the jurisprudence the prin-
ciples which govern my jurisdiction under the Order in Council authorizing
this Inquiry. In my view, the principles are set out in the two most recent
Supreme Court of Canada decisions referred to above, namely, O'Hara and
Starr, and I must decide what principles are relevant to the situation re-
ferred to explicitly or inferentially in the terms of reference directed to me.

544 Rulings

An analysis of the judgement in Starr convinces me that all
members of the court have confirmed the principles set out in O'Hara,
although the majority has distinguished them from those applicable to Starr
due to the factual differences between the two cases, and those principles
exemplify what may be done and may not be done constitutionally.

In my respectful view, the principles to be derived from the two
cases are as follows:

1 . The pith and substance of a Provincial Commission must be
firmly anchored to a Provincial head of power.

2. A Commission may have a "double aspect."

A matter may fall within Provincial jurisdiction as pertaining to the
administration of justice, and may also fall within the scope of Federal
jurisdiction over criminal law and procedure.

3. In deciding whether the terms of reference of a Commission
of Inquiry, which have a "double aspect," fall within
Provincial or Federal jurisdiction, one must attempt to
identify a predominant feature that outweighs the competing
incidental aspect. For example, a province has a legitimate
constitutional interest in determining the nature and reasons
for inappropriate conduct of members of police forces under
its jurisdiction.

That the uncovering of such conduct may later form the basis of a
criminal charge, and thus impinge on Federal jurisdiction over criminal law
and procedure, does not oust Provincial jurisdiction, provided the predom-
inant feature of the Inquiry is the management of the means by which jus-
tice is administered in the province.

4. In deciding what is the predominant feature of an inquiry,
the Order in Council as a whole, but with particular
attention to the preamble and the circumstances leading to
the Inquiry, should be examined to ascertain whether there
is a broad policy basis for the inquiry rooted in a Provincial
head of power.

In my view, the O'Hara and Starr decisions stand side by side, both
being judgements of Canada's highest court, neither being in conflict with

Rulings 545

the Other because of their different factual foundations, and each providing
rules which govern a particular type of Inquiry.

A commissioner of a Provincial Inquiry, by applying the principles
set out above, must come to a conclusion as to whether the Inquiry in ques-
tion falls within the description of the O'Hara Inquiry or the Starr Inquiry.
If it falls within that of the O'Hara Inquiry, the Inquiry may proceed, ap-
plying the O'Hara rules. If it or parts of it fall within that of the Starr In-
quiry, it or those parts of it are unconstitutional as falling within Federal
jurisdiction.

Submissions by several counsel have been to the effect that the
Starr Inquiry and the present Inquiry are sufficiently similar that the present
Inquiry is prohibited from making any findings other than on broad general
policies. Therefore, before applying the principles I have set out above, I
should point out what I conceive to be some fundamental differences bet-
ween the two Inquiries:

1. At p. 3 of his judgement, Mr. Justice Lamer quotes an ex-
cerpt from the Premier's statement announcing the Inquiry
as follows:

"I give you my personal assurance that those whose perfor-
mance has been found wanting will be discovered, those
who have erred will be punished, and those who have bro-
ken the law will be prosecuted."

At p. 36 he refers to this quote as forming part of his rea-
sons for concluding that the Inquiry is a substitute for a criminal invest-
igation. In the present Inquiry, no one in authority has made any suggestion
of criminal prosecution arising out of the findings of the Commission.

2. At p. 34, Mr. Justice Lamer, as quoted earlier, notes a
unique aspect of the Starr Inquiry to be the naming of two
individuals in the terms of reference, which fact alone, "dis-
tinguishes the present case from the other cases the court
has had to decide."

At p. 33, as already quoted, he states:

546 Rulings

"It is the combined and cumulative effect of the names, to-
gether with the incorporation of the Criminal Code offence,
that renders this Inquiry ultra vires the Province."

Further, at p. 38, as quoted earlier, he states that in his view, two
key facts lead him to conclude that the Inquiry is a substitute criminal in-
vestigation because:

1. Unlike O'Hara, two individuals are singled out for invest-
igation as alleged perpetrators of the misconduct.

2. The wording of the mandate for the investigation of these
two individuals bears a striking resemblance to the section
of the Criminal Code making the alleged misconduct a
criminal offence.

In the terms of reference of the present Inquiry neither of such
factors is present.

3. At p. 34 of his judgement, Mr. Justice Lamer states:

"Furthermore, there seems to be a complete absence of any
broad policy basis for the Inquiry."

In the terms of reference of the present Inquiry, the broad policy
basis is clearly set out in the preamble, which was quoted earlier, to the
effect that there has been concern over the loss of public confidence in the
operation and administration of the Niagara Regional Police Force and that
it is desirable to inquire into these matters of public concern.

While the mandate of this Inquiry, as set out earlier, may be intimi-
dating in its breadth and scope, it does not, in my view, justify in any way
a fmding such as that in the Starr decision at p. 45, that the Province has
enacted this Public Inquiry as a substitute for an investigation and prelim-
inary inquiry into specific individuals in respect of specific criminal of-
fences, or to circumvent the procedure provided in Part XVIII of the Crim-
inal Code.

A caveat may, however, be appended in relation to term of reference
N°. 12, which refers to improprieties or misconduct, and to this I shall re-
turn later.

Rulings 547

4. Mr. Justice Lamer appears to attach some significance to the

fact that there was an ongoing police investigation separate
from that of the Inquiry. There was no such ongoing invest-
igation here.

I accordingly conclude that the circumstances surrounding the pre-
sent Inquiry are readily distinguishable from those found by Mr. Justice
Lamer to apply to the Starr Inquiry. The present Inquiry is much closer in
its circumstances to those attending the O'Hara Inquiry, and I conclude that
the remarks of Chief Justice Dickson in that case, which I have already
quoted, apply to the present Inquiry.

Applying the principles I referred to earlier, I fmd that the pith and
substance of this Inquiry is, "the management of the means by which justice
is administered in the Province," and that this is a matter in which the Prov-
ince has a valid and legitimate constitutional interest under s. 92(14) of the
Constitution Act.

Although the terms of reference may have a double aspect, falling
within Provincial jurisdiction over administration of justice as well as, in-
cidentally, within Federal jurisdiction over criminal law and procedure, the
predominant feature of the terms of reference, the preamble and the circum-
stances surrounding the calling of the Inquiry, is the Province's interest in
the management of the means by which justice is administered in the Nia-
gara Region.

I accordingly fmd the Order in Council to be constitutional.

That, however, is not the end of the matter. Counsel for Sergeant
VanderMeer has submitted that the manner in which the Inquiry has exam-
ined the operations of the Internal Investigation Team which investigated
alleged wrongdoings by ex-Chief Gayder while he was in office, amounted
to a Preliminary Inquiry into alleged criminal conduct of his client.

A good part of the several months spent in examining the methods
employed by the Internal Investigation Team has focused on whether the
Team, effectually headed by Sergeant VanderMeer, knew or should have
known that a series of briefs authored by Sergeant VanderMeer and deliv-
ered to the Attorney General, contained a number of errors, mis-statements
or overstatements tending to show improper or criminal conduct on the part
of ex-Chief Gayder.

548 Rulings

Much attention has been concentrated on a handgun which the brief
stated to have been found in Mr. Gayder's possession and to have been pre-
viously stolen. Just prior to the delivery of the briefs to the Attorney Gen-
eral, at least one of the members of the Internal Investigation Team learned
that the gun had not been stolen and, according to him, told Sergeant Van-
derMeer. This has been denied under oath by Sergeant VanderMeer.

Counsel submits that the manner in which Commission counsel has
presented the evidence in this regard, has indicated an intention to allege
Obstruction of Justice on the part of Sergeant VanderMeer.

Commission counsel submits that that evidence is only part of an
examination of the manner in which some investigators have operated, thus
perhaps reflecting on the policies of senior management, and that he has no
intention of suggesting criminal conduct on the part of any member of the
investigation team.

He submits that the internal investigation, and the manner in which
it was conducted, is clearly relevant to the mandate of this Commission and
was partially responsible for its being called for by the Board of Police
Commissioners and others.

Any suggestion of criminal conduct would, of course, be improper
since I am specifically enjoined from making any finding of criminal res-
ponsibility, and I am satisfied that no such suggestion will be made.

There has, however, been evidence that members of the Force per-
ceive some of the Internal Investigation Team members to be guilty of bias,
intimidation and improper investigative techniques employed while inter-
viewing various Force members, and I consider that a review of the me-
thods used by the Internal Investigation Team forms part of my mandate to
ascertain whether there has been a loss of confidence in the Force and to
make recommendations to correct any defects in policy, training or methods
of selecting investigators, and that that is justified within the principles laid
down in O'Hara.

Other counsel have submitted that Starr precludes me from invest-
igating the recurrent rumours that organized crime has infiltrated the Force
since it might involve evidence of criminal wrongdoing on the part of in-
dividuals. I simply do not agree.

Rulings 549

If this Inquiry is to restore public confidence in the Force, such a
rumour must be investigated and the pubhc must be told whether it is true
or false. If an incident of such investigation is the discovery of criminal
conduct, that incident falls squarely within the principles set out in O'Hara,
that is the purpose of the investigation is not to determine criminal res-
ponsibility but to get to the bottom of alleged police misconduct, and the
incidental criminal aspect does not undermine the basic principle of exam-
ining the management of the means by v^hich justice is administered.

The same observation applies to any other areas of investigation
where the possibility of uncovering criminal conduct is incidental to the
predominant purpose of investigating the manner in which justice is admin-
istered by the Niagara Regional Police Force.

I earlier referred to a caveat concerning reference N°. 12, relating
to improprieties or misconduct on the part of Force members arising out of
the other terms of reference. I am, of course, prohibited by both the Order
in Council and the Public Inquiries Act from expressing any conclusion of
law regarding criminal responsibility.

Although O'Hara was approved by the court in Starr and O'Hara
allows Provincial Inquiries to investigate matters within Provincial juris-
diction despite the fact that matters disclosed might later form the basis of
a criminal charge, the great concern shown in Starr over the coercive nature
of an Inquiry's methods of obtaining evidence persuades me that great care
should be taken to avoid whenever possible the naming of names in my re-
port.

Commission counsel, in his submissions, stated that he has no inten-
tion, under terms of reference N°. 12, of embarking upon a series of mini-
trials to ascertain whether any members of the Force or other police agen-
cies have committed improprieties or misconduct. So far as I am aware, no
such course of action was ever contemplated and would be contrary to the
spirit of the Starr ruling.

In the course of carrying out the mandate of the Order in Council,
it may at times be impossible to avoid incidental identification of some per-
son involved in undesirable practices in the administration of the Force, but
no persons will be unnecessarily identified and no conclusions of law re-
garding civil or criminal responsibility will be made.

550 Rulings

Accordingly, it is my intention that this Inquiry should proceed in
accordance with the principles I have set out above.

Rulings 551

Ruling of September 3, 1991: Ability of the Inquiry to make findings
of misconduct - the Notice requirements of s.5(2) of the Public
Inquiries Act - Sergeant VanderMeer's motion

This is a motion by Cornelis VanderMeer for an order that no allegations
of misconduct against him will be received in fmal argument and no fm-
dings of misconduct will be made against him in the Commission's report,
or, in the alternative, that I state a case to the Divisional Court.

Mr. Rowell, counsel for Sergeant VanderMeer, raised a number of issues
involving evidence received over the two full years of hearings, and since
most of them were also included in parallel motions by the Board of Police
Commissioners and others, my ruling on those motions and the present mo-
tion are issued at the same time and should be read together.

Sergeant VanderMeer's conduct was the subject of considerable
criticism by several pardes during some phases of the Inquiry. The
relevance of this to the terms of reference was the submission that he was
the source of many of the rumours and took part in events that caused a
loss of public confidence in the Niagara Regional Police Force, and that the
Commission should make recommendations to prevent this happening in the
future. The accuracy of these submissions must therefore form an important
part of my findings.

Mr. Rowell, Sergeant VanderMeer's counsel, at the beginning of his
argument, suggested that, although he was taking no position as to whether
the motion should be heard in camera, he would be referring to allegations
of misconduct on the part of certain persons, and to be consistent with my
earlier ruling that such matters should be in camera because some of the al-
legations might be of a scandalous nature which could irreparably damage
reputations and harm the image of the Force before I had a chance to make
a finding as to their validity, I should consider whether his motion should
be heard in camera. I accordingly ruled that the motion should proceed in
camera, but undertook to fully disclose in my subsequent public ruling on
the motion all that had gone on in camera having due regard for matters
that should remain private. As it turned out, in my opinion, nothing was dis-
closed in the in camera hearing that was not already part of the public re-
cord.

Section 5 (2) of the Public Inquiries Act provides: "No finding of
misconduct on the part of any person shall be made against him in any
report of a commission after an inquiry unless the person had reasonable

552 Rulngs

notice of the substance of the misconduct alleged against him and was
allowed full opportunity during the inquiry to be heard in person or by
counsel." The subsection contains three important words, for which it
provides no definition: "reasonable," "substance" and "misconduct," and I
have been unable to find any judicial interpretation of the subsection. The
subsection is fraught with difficulties, and I shall be recommending a
rewriting of it in my report. Perhaps the most difficult point the applicants
must get around is that, under the plain wording of the subsection, the
applications are premature. It is interesting to note the wording of the
subsection as it relates to timing: "No finding of misconduct ... shall be
made ... in any report ... unless reasonable notice has been given ..." Thus,
it is not until the report has been prepared that one can judge (a) whether
a particular finding Is one of misconduct, or is merely legitimate criticism
of an individual's course of action; (b) if it was in fact a finding of
misconduct, whether or not there had been given reasonable notice of the
substance of the misconduct.

Mr. Rowell has based his case on a strict interpretation of s.5 (2).
On that basis alone, his application is premature and must be dismissed.

I am advised by Commission counsel that the meaning and import
of Section 5 (2) was discussed at an October 11, 1990, meeting of counsel
(including counsel for Sergeant VanderMeer) and the views of all counsel
were requested. The agreement arrived at by all counsel except that of Ser-
geant VanderMeer was that, since it would be premature to infer mis-
conduct on the part of any person until all the evidence had been heard, the
only practical way of providing notices of possible "misconduct" was to in-
clude them in the submissions of counsel delivered at the conclusion of evi-
dence, subject to the right of reply by further submissions and/or evidence.
Counsel for Sergeant VanderMeer took no part in the discussion, and ad-
vised that Sergeant VanderMeer "was not involving himself therein. On
Oct. 15, 1990, Commission counsel wrote to all counsel advising that any
counsel that had advised that they required instructions from their client as
to the result of the meeting should "... get back to us no later than Oct. 19,
1990, pending resumption of the hearings on Oct 23." On Oct. 24, 1990,
Commission counsel wrote to Sergeant VanderMeer's counsel pointing out
that he had not heard from them. No reply was received from them, and no
indication was received from any counsel that they wished to take any dif-
ferent position. On October 26, a follow-up letter was sent to all counsel,
requesting further advice on outstanding matters by October 29, failing
which Commission counsel would exercise their own judgement as to how
those matters would be dealt with. No dissenting letters or messages were

Rulings 553

received. On November 20, 1990, all evidence requested by any parly ha-
ving been heard, there was considerable discussion about the next step to
be taken, namely fixing a date for submissions on the two years of evidence
just completed. No one asked that any further evidence be called, and no
one suggested that they required any notice of misconduct other than that
of which they were already aware from the evidence itself, and that which
might be contained in the submissions as discussed at the Oct. 1 1 meeting
and agreed to by all counsel except those of Sergeant VanderMeer, who
took no stand one way or the other. Accordingly, the inquiry was adjourned
for the preparation of counsels' submissions on a date to be fixed. On Dec.
9, 1990, Commission counsel wrote to all counsel canvassing opinions to
present to me as to the earliest date that submissions could be heard. On
Dec. 31, 1990, counsel for Sergeant VanderMeer wrote to Commission
counsel advising that they were proceeding on the assumption that, since no
notice of misconduct under s. 5 (2) of the Public Inquiries Act had been
provided to Sergeant VanderMeer, no finding of misconduct could be made
against Sergeant VanderMeer in the Commissioner's report. No reference
was made to the October 1 1 discussions, nor to the understanding that those
in disagreement with the understanding arrived at would write to Commis-
sion counsel setting out their objections. Following an exchange of corre-
spondence between Commission counsel and VanderMeer's counsel, on Jan.
17, 1991, Commission counsel wrote to all counsel enclosing the corre-
spondence and inquiring whether they had changed their position as to the
agreement of Oct. 11, 1990. No other counsel indicated that they had chan-
ged their mind. More correspondence ensued, with Commission counsel re-
questing from VanderMeer's counsel information as to what form of notice
they wanted and the law on which they relied. No answers to these ques-
tions were received, and on Feb. 18, 1991, counsel for VanderMeer wrote
to Commission counsel, with a copy to me, requesting me to state a case
to the Divisional Court as to whether a person has received reasonable no-
tice within the meaning of s. 5(2) of the Act when allegations of mis-
conduct are made by the parties, including Commission counsel, in final
submissions. Further correspondence failed to achieve a meeting of minds.
I then advised Commission counsel that since this Inquiry has already been
in existence for three years, the delays created by an application to the Di-
visional Court and possible appeals therefrom would thwart one of the ob-
jectives of this Inquiry which was to restore the confidence of the public in
their Police Force as soon as possible. Accordingly, although it was felt that
formal notices of possible "misconduct" could not provide the background
information that counsels' submissions would provide, it was decided that
all counsel would be requested to file with the Commission by May 15,
1991, notices in writing setting out the "substance" of any "misconduct"

554 Ruti;igs

they may be alleging against any other party, and at that time any further
requirements resulting therefrom, such as further evidence, would be con-
sidered.

On May 15, 1991, briefs containing notices of alleged misconduct
on the part of various parties were filed by Lee Rattray personally, and by
counsel for the Commission, Niagara Police Services Board, Sergeant Van-
derMeer, the Police Association, Chief Shoveller, James Gayder, Staff Ser-
geant Miljus and Sergeant Typer, the Niagara Police Force, Sergeant Ryan,
and Edward Lake. The briefs were filed in camera because, as Commission
counsel explained in his opening paragraphs, so far as his "notices" were
concerned, the allegations do not necessarily represent conclusions which
he will be supporting in his submissions, but rather a range of possible con-
clusions which could possibly be made on the evidence. He stated that they
were "the outer limit" and bore no relationship to his intended submissions.
Presumably because no one seems to know what is meant by the word
"misconduct" in s. 5(2), Commission counsel phrased his notices as ques-
tions, viz: "Is it misconduct if it is found that ...?" He further pointed out
that it was not intended to imply that the matters were necessarily "mis-
conduct" within the statute, but were listed only so that parties who con-
sidered themselves criticized could, if they felt it was necessary, call
evidence and make submissions in respect thereto. Since there was a con-
cern that some of the allegations included in some of the submissions might
have little evidentiary foundation and might be harmful to the reputations
of the subject parties before they could be ruled upon by me, it was agreed
that the briefs would be held in camera pending a further ruling by me. In
answer to a question by Sergeant VanderMeer's counsel as to whether all
these notices were adopted by me as Commissioner's notices, I pointed out
that they were not my notices, that I felt it could be misinterpreted as "pre-
judging" if the Commissioner were to notify parties of a potential finding
of misconduct before reviewing all the evidence from the two years of hear-
ings, and that other than making allegations, I will be required to rule on
the allegations of "misconduct" raised by the evidence or by counsel in
their "notices" or submissions. I pointed out, however, that parties who
were the object of such notices should be prepared, if they felt it necessary,
to address them either by calling further evidence or by their submissions.
I stated that, following final submissions, I might rule that some of the al-
legations fall outside my terms of reference, but it was too early for that
now. The hearing was then adjourned to allow the parties to consider the
notices, and to allow the fixing of a date to consider the calling of any fur-
ther evidence parties might wish before setting a date for final submissions.

Rulings 555

The hearings reconvened on June 12 to hear from parties who
wished to call further evidence as a result of the May 15th notices. Mr.
Rowell could not be present. After some discussion it appeared that none
present wished to call further evidence and the Inquiry was adjourned to the
next day, at which time Mr. Rowell as counsel for Sergeant VanderMeer
appeared, but advised that he could not submit a list of witnesses before the
end of July, and that his motion for a stated case was still alive. June 24
was then fixed peremptorily, but on his consent, for the delivery of his wit-
ness list and any motions he or others might wish to make.

On June 24, Mr. Rowell filed the present motion, asking me to rule
that I could make no finding of misconduct against Sergeant VanderMeer
because the provisions of s. 5(2) of the Act could not be met. As already
noted, s. 5(2) deals with fmdings made in the commission's report, so that
it is not possible to complain that the section has not been complied with
until the report is published. Accordingly, the present motion, so far as it
is based on the ground that no effective notice has been given, is premature
and should be dismissed. Furthermore, unless Sergeant VanderMeer esta-
blished that he had no reasonable notice, at any time, of the substance of
any conduct that might be considered misconduct, his broadly drafted mo-
tion that no fmdings of misconduct of any kind may be made against him
cannot succeed. However, the argument was also advanced that it has been,
and is presently, and will in future be impossible to respond to allegations
of misconduct received during the course of the hearings and in the notices
of May 15 or to be received in the final submissions in the near future. I
consider that the complete answer to this is that the parties have repeatedly
been invited throughout the inquiry, and in the May 15 notice procedure,
to call evidence in answer to any such allegations. I find that the applicant
has not established that he could not in the past and cannot now answer the
notices. For the above reasons, I dismiss the motion, but since the ruling is
so important to the credibility of the Inquiry, I shall consider the other ar-
guments relied upon by the applicant.

Mr. Rowell acknowledged that he had received notice under the sec-
tion, but that it was ineffective as being "too little, too late." Mr. Rowell's
argument, as I understand it, is that his client had no notice during the
course of the evidence of any allegations of misconduct on his part, and that
specific notices under s. 5(2) should have been served sometime during the
course of the hearing of evidence. However, he bluntly stated: "I don't pro-
pose to do the work of Commission counsel or yourself by coming up with
the precise formula in the context of these proceedings as to when notice
might or ought to have been given." He nevertheless submits that notice

556 Rulings

should have been delivered at the conclusion of the investigation prior to
the hearing of evidence, or, in any event prior to Sergeant VanderMeer
being called as a witness, so that he would be aware that, in testifying, he
might be providing evidence that could be used against him later. This
would seem to suggest that, in such case, a witness would be entitled to re-
fuse to testify, or could insist that his evidence could not be used against
him. It would seem that there is a tendency on the part of some counsel
who, admittedly, restrict their practices to criminal work to treat a procedure
under the Public Inquiries Act as akin to a criminal trial, and as if it were
governed by the provisions of the Criminal Code. Some appear to confuse
a s. 5(2) notice with an indictment. This, of course, is quite contrary to the
principles laid down in the 5rarr judgement, and in the 0'//ara judgement
quoted with approvaJ therein, which I have already indicated will, of course,
be one of the guides in the preparation of my report. The principles referred
to are set out in my Starr ruling delivered on April 30, 1990, vol. 170, pp.
5-48 and which I incorporate by reference in my present ruling. This in-
quiry is only incidentally about a "misconduct." Its main concern is about
a perceived lack of public confidence in the Niagara Regional Police Force
and the need to provide a comprehensive report on many aspects of the
operation and administration of the Force, with recommendations for im-
provement. Unfortunately, these motions are distorting the Inquiry's man-
date and purposes. The October 1 1 procedure, proposed and agreed to by
all of the parties but the applicant, whereby the "notices" would be con-
tained in the "final" submissions, would have avoided this by including only
allegations which the parties were able to substantiate by reference to the
evidence. Because there was not unanimous agreement, the parties have
been forced to isolate and overemphasize matters that might be considered
"misconduct." Perhaps I should reiterate what I said at the opening of this
Inquiry. At that time, I stated: "As I interpret the terms of reference the pur-
pose of the commission is not to assign blame for misjudgments or even
negligence that has occurred in the operation and administration of the
Force over the full 17 years of its existence, although that may well be an
incidental part of the Commission's findings. Rather, one of the main pur-
poses is to publicly air the events that have given rise to many rumours of
mis-management or even corruption or criminal conduct and from lessons
learned to come up with a report containing recommendations that would
help the administration to avoid such problems in the future. It goes without
saying that if the hearings disclose corruption or criminal conduct, such fin-
dings will be included in the report setting out my conclusions of fact in
that regard without expressing any conclusions of law regarding criminal or
civil responsibility." That remains my interpretation and intention.

Rulings 557

As to Mr. Rowell's proposal that notices should have been given at
the conclusion of the investigation prior to the hearing of evidence, it
should be pointed out that, because of the extremely wide terms of
reference and new matters that were constantly being raised throughout the
hearings, the Inquiry investigators continued their investigations right up to
the completion of the evidentiary hearings last fall. Any formal notices prior
to that time, even if such were required, would have been premature.

I shall now consider whether Sergeant VanderMeer had, either
personally, or through his counsel, reasonable notice of the substance of the
allegations of "misconduct" alleged against him either in the course of the
hearings or in the notices filed on May 15, 1991.

In the first place, I am satisfied that, having received those notices
and having been invited to call evidence thereon, the requirements of s. 5(2)
have been met. As mentioned, these notices were provided in an excess of
caution in an effort to satisfy Mr. Rowell, and avoid the crippling delay
which might be created by some appeal process. Commission counsel made
it clear that they were prepared to sit down with any counsel to review the
evidence and assist them in their consideration as to whether they should
call further evidence on their own behalf However, I am also satisfied that
Sergeant VanderMeer had actual notice of the substance of these allegations
early in the course of the Inquiry, and that his counsel frequently acknow-
ledged this, as indicated by remarks I shall be quoting later. The reality is
that any party who attended the hearings, either in person or through coun-
sel, would have reasonable notice of the allegations of "misconduct" that
might be made against him or her. From their reports, it is apparent that the
media were well aware of the various allegations, and Sergeant VanderMeer
had more incentive to be aware.

At the outset of this Inquiry, Sergeant VanderMeer was granted
standing, and public funding, by a ruling of mine dated July 6, 1 988, on the
ground that he was the source of many of the allegations against ex-Chief
James Gayder which were expected to be challenged by Gayder's counsel
and others, and was effectively the head of a police team (referred to as the
IIT; that is, the Internal Investigation Team) which carried out an extensive
internal investigation of the Force in 1987, and which in many ways led to
the calling of this Inquiry. Verv^early in the hearings, it became obvious
that Sergeant VanderMeer wa/^the target of complaints by some police
witnesses to the effect tbm he had taken a biased and overly aggressive
approach to the investigation, particularly in his interrogation of witnesses.

558 Rulings

although it was not possible to assess the seriousness of the complaints or
the weight of the supporting evidence until all the evidence was heard.

Both Sergeant VanderMeer and his counsel have been present

during the evidence concerning Sergeant VanderMeer' s investigations and

it is inconceivable that they would not have realized that Sergeant

VanderMeer was the subject of vigorous criticism of his investigative

techniques, his making allegations without proper evidentiary support, and

an occasional lack of concern for the principles of "the chain of command."

Indeed, his counsel have referred to this on several occasions. In applying

for standing, his counsel stated (June 1988 transcript, pp. 115-116): "I

would suspect that his investigation of the two matters involved in [terms

of reference] two and three and his opinions and his position with respect

to what he did with that information is going to be of great concern to him

directly, particularly when you involve some of the later references in the

terms of reference, notably Nos. 11 and 12 of those terms. I think they

dovetail together, as it were ... my impression of his fmdings with respect

to the storage and disposal of guns and the use of property, public property,

for private means etc., those allegations are going to be directly concerned

with his opinion, what he did about it, and what he felt the authorities did

not do about it, as a result of which he did certain things. I don't want to

go into it in detail but I can assure you that it will involve him." Later, on

Nov. 15, 1988, his counsel stated (transcript, vol. 2, p. 144): "... my

position on behalf of Sergeant VanderMeer is two-fold. One, I represent

him because he is obviously on at least one of these terms of reference, he

is the target. But I also indicated that certain criticisms of the way he

investigated this matter, and that came out of my friend, Mr. Pickering's

opening comments at this very hearing yesterday. I submit, I'm entitled to

address, and one of the things that he investigated were these firearms. He

was the key investigator, or one of the key investigators, in that

investigation. I've no doubt that Mr. Pickering is ultimately going to attack

him either through this witness, some other witness or through VanderMeer

himself when he gets in the witness box." Later again, in answer to a

question from me as to the parameters of his application that his client be

treated like Dr. Shulman in Re: The Public Inquiries Act and Shulman

(1967) 2 O.R. 375 he stated (transcript, vol. 6, p. 131): "But I certainly hark

back, Mr. Commissioner, to my friend Mr. Pickering's comments the other

day, when I asked him if I could have an undertaking that the Sergeant's

conduct, insofar as the investigation of the ex-Chief was concerned, would

not be made subject to comment by him or criticised by him, and he quite

honestly indicated that he could not give such an undertaking." Commission

counsel then summed up the situation at p. 135: "The status of being a

Rulings 559

Shulman, as we've referred to it, is that he is advancing allegations in his
personal behalf, that he is somehow outside the scope of that investigation
personally, advanced allegations which he now feels called upon to defend
for the sake of his personal reputation. That is what being a Shulman means
in this context, and I just want to be perfectly clear, when Mr. McGee
stands up and makes that kind of application that his client is putting
himself in that position."

It is apparent that Sergeant VanderMeer's counsel anticipated an
attack on his client's conduct from the start of the Inquiry, and put his
reputation in issue almost immediately. On November 29, 1988, on the
ninth hearing day, he cross-examined Staff Superintendent Moody, the
nominal head of the ITT, about VanderMeer's ability and his honesty (vol.
8, p. 96), and explored his reputation with a Crown Attorney (Dec. 8, 1988,
vol. 14, p. 50), and with other witnesses from time to time.

On November 21,1 989, VanderMeer's counsel clearly indicated that
VanderMeer was aware of the possibility of complaints about his conduct.
At p. 56 of vol. 124 of the transcript of evidence, in cross-examining Ser-
geant Melinko about the arrest of Ellis, the Force mechanic, she states: "...
my client, it is acknowledged that he's going to be targeted here in this In-
quiry. I think that's fairly obvious to everyone. If there's going to be any
criticism of my client, with respect to how he handled Mr. Ellis, I want to
cover these things with the people, who were present at the time."

In his Sept. 12, 1990, statement (transcript, vol. 213, p. 25) Van-
derMeer's counsel, referring to Commission counsel, stated: "In particular,
it goes without saying that he takes the view that many of the allegations
that we have heard from time to time are totally without substance. That
they may have been advanced by my client. Sergeant VanderMeer, and by
others, for their own personal, or political, gain, or whatever reason he
might attribute to them, and that my client, and others, are to be condemned
for having done that."

Sergeant VanderMeer must have been fully aware that he might be
criticized for failing to respect the chain of command. In connection with
his involvement with "Project Vino" without authorization of the Chief of
the NRPF, his own counsel's cross-examination of Chief Shoveller, on May
22, 1990 (vol. 182, p. 160) was as follows: "Q: ... do you feel that
Sergeant VanderMeer should be criticized in light of all of what I've told
you in reference to his participation in Project Vino? A: I feel that Sergeant
VanderMeer should have made that known to his superiors, yes."

560 Rulings

As to VanderMeer's expectation of criticism of iiis leaking police
information to the media, on May 2, 1990, vol. 172, at p. 150, his own
counsel asked him: "Q: Well, we have heard evidence, and I am going to
put it to you, because there is obviously going to be some criticism forth-
coming that you went to Peter Moon or spoke to Peter Moon, and he ulti-
mately ended up writing the article about Cardillo. I won't go through the
whole of the evidence, but you have heard that? A: Yes." Peter Moon is an
investigative reporter for the Toronto Globe and Mail.

Sergeant VanderMeer must have realized during the course of the
evidence that he was likely to be criticized for arranging a meeting amongst
Mrs. Taylor, Peter Moon, Neil Taylor and himself without the authority of
his superiors. In the. presence of VanderMeer and his counsel, Chief Sho-
veller said on May 7, 1990 (vol. 174, p. 92), referring to that meeting: "It
is totally improper for a member of the Force, without the proper
authorization, becoming involved with a Board member in matters of that
nature." Further on May 17, 1990 (vol. 181, p. 74) the Chief said, "I think
it is totally improper for the Chairman of the Board and Sergeant
VanderMeer to be meeting with Mr. Moon under those circumstances."

In January, 1989, in the early stages of this Inquiry, Inspector John
Stevens, who had been in charge of Quartermasters Stores from the Force's
inception in 1971 until 1981, was on the witness stand for a good part of
three days. During his cross-examination by various counsel, he expressed
his concern about the manner in which Sergeant VanderMeer had inter-
viewed him on March 1, 1987, regarding ex-Chief Gayder's acquisition of
certain guns, to the extent that he made private notes to himself after the in-
terview. It was apparent that he considered that Sergeant VanderMeer had
approached the investigation of the property system, under orders of the ac-
ting Chief, with a bias against Gayder which he carried into his interview
methods. The extremely vigorous cross-examination of Stevens by Mr. Ro-
well, counsel for Sergeant VanderMeer, consumed some 70 pages of trans-
cript (vol. 29, pp. 27 ff.) and nearly half of this was concerned with the
witness's criticism of Sergeant VanderMeer's overbearing investigative
technique. Over a year ago, in making his submissions to the effect that the
Starr decision precluded me from continuing with this Inquiry, he said
(transcript, vol. 168, April 23, 1990, p. 35): "In particular, Mr. Kelly, in his
cross-examination of Sergeant VanderMeer, has alleged, has focused upon,
has striven towards, the interpretation time and time again (ill-founded, I
might say), of criminal activity on the part of Sergeant VanderMeer; not as
the purpose of these proceedings, but as their effect. The criminal activity

Rulings 56 1

on the part of Sergeant VanderMeer with respect to, in particular, as I see
it, an alleged obstruction of justice involving the Sacramento gun."

In my ruling on Mr. Rowell's application to have the Patty Starr de-
cision apply to this Inquiry, I made particular reference to my concern about
the IIT investigation, in the presence of both Mr. Rowell and Sergeant Van-
derMeer. At transcript, p. 45, vol. 170, April 30, 1990, I pointed out:
"There has, however, been evidence that members of the Force perceive
some of the Internal Investigation Team to be guilty of bias, intimidation
and improper investigative techniques employed while interviewing various
members, and I consider that a review of the methods by the Internal Inves-
tigation Team forms part of my mandate to ascertain whether there has been
a loss of confidence in the Force and to make recommendations to correct
any defects in policy, training or methods of selecting investigators, and that
that is justified within the principles laid down in O'Haray

In the written application of Faye McWatt for standing and funding
on behalf of members of the IIT other than Sergeant VanderMeer, in jus-
tifying the separate representation of these members, after indicating that
she had spoken to Mr. Rowell, one of Sergeant VanderMeer's counsel, she
stated: "Sergeant VanderMeer has had standing in this Inquiry since July,
1988. Inter alia, standing was granted on the basis that VanderMeer alone
was in a unique position akin to that of Dr. Morton Shulman. The rationale
for this standing seems to have been that pursuant to Section 5(2) of the
Public Inquiries Act, VanderMeer could be adversely affected, from a pro-
fessional perspective, if the allegations which he, and he alone has made,
were determined to be unfounded ... Mr. Rowell has told my clients that
Sergeant VanderMeer is his priority and in the event of a conflict, any
concern for other members of the IIT would be secondary. Given that all
members of the IIT are potential 'targets' during the next phase of this
Inquiry, their interests would not be adequately safeguarded by counsel who
has as his/her primary obligation, an individual officer as opposed to the
team as a whole." The letter has been on file as exhibit 296 since
September 19, 1989, and the reference to Dr. Morton Shulman and "targets"
must be presumed to have come from, or at least be known to Mr. Rowell,
since he contributed to Ms McWatt' s information in that regard, and was
the one most familiar with Sergeant VanderMeer's situation.

These are only a few of the numerous examples of the obvious
awareness of Sergeant VanderMeer and his counsel of the fact that he was
one of the parties granted standing whose conduct was under scrutiny and
who was likely to be the subject of adverse criticism in the submissions of

562 RuUngs

Other counsel to be delivered at the end of the Inquiry. Commission counsel
has set out in his submissions on this application the exact citation in the
transcripts of evidence where the evidence, and therefore the "notice," of
each instance of possible misconduct is to be found. Indeed, the extremely
vigorous, detailed and lengthy cross-examination by Sergeant VanderMeer's
counsel of witnesses whose evidence was critical of Sergeant VanderMeer,
and their cross-examination, replete with leading questions, of Sergeant
VanderMeer himself in relation to such criticism, was consistent only with
the knowledge that Sergeant VanderMeer was likely to be a "target" of alle-
gations of improper conduct in the final submissions. I am satisfied that on
the basis of the conduct of Sergeant VanderMeer's counsel alone, they had
reasonable notice of the substance of the allegations of "misconduct," and
had ample opportunity to call evidence in reply. Reid and Davis in Admini-
strative Law and Practice (2d), in discussing the law of notice, observe at
p. 64: "The courts will not interfere, in the absence of evidence of improper
motive or bad faith, with the Tribunal's decision as to what constitutes suf-
ficient notice."

In Landreville v. The Queen, [1977] 2 F.C. 726, a Commissioner
was appointed by the Governor in Council under the Inquiries Act, a federal
statute, to inquire whether, in the course of certain dealings in the shares of
a company a federally-appointed judge had done anything that constituted
misbehaviour in his capacity as a judge, and had thereby proved himself un-
fit for the execution of his judicial duties. Section 13 of the Inquiries Act
(a federal statute) provides: "No report shall be made against any person
until reasonable notice has been given to him of the charge of misconduct
alleged against him and he has been allowed full opportunity to be heard
in person or by counsel." Prior to the calling of the Inquiry, there had been
a Securities Commission hearing and a criminal investigation of the circum-
stances resulting in charges which involved other persons. In his report the
Commissioner found that Landreville's conduct in giving evidence before
the Securities Commission and in the perjury proceedings against another
party to the share transactions had constituted a gross contempt of these tri-
bunals, and had permanently impaired his usefulness as a judge. In due
course Landreville applied to the Federal court for a declaratory judgement
that the Inquiry proceedings were, inter alia, in violation of s. 13 of the Acf.
The Court agreed with the plaintiff that there was nothing in the terms of
reference nor in the evidence during the hearing that any allegation would
be made against the plaintiff in respect of previous testimony, and that the
first notice the plaintiff had was the publication of the report. At p. 758 of
its judgement, the Court said: "I agree with the plaintiff's position that in
the circumstances here, the Commission should have been reconvened. The

Rulings 563

substance of the proposed allegations of misconduct set out in conclusions
2 and 3 should have been made known to the plaintiff in accordance with
section 13. The plaintiff should then have been given the opportunity to
meet those specific charges." Thus the finding of the Court was that notice
given even after fmal submissions would have been proper provided that the
subject of the notice was given an opportunity to call further evidence. The
advantage of this procedure is that, contained in the "final" submissions will
be particulars of the alleged misconduct, whereas a generalized notice given
before all the evidence is heard is bound to lack details and may have to be
withdrawn later because of conflicting evidence, causing procedural
confusion and unnecessary interim embarrassment to persons named. Even
in a criminal trial (as a "worst case" example), the accused person does not
call evidence until all the opposing evidence has been heard, and Mr.
Rowell has not made it clear to me why in the present case it is too late to
call evidence as a reply to the May 15 "notices." Here, that opportunity to
call reply evidence was available to anyone, not only during the hearings,
but also after the May 15 notices. If there are any new allegations of
misconduct in the final submissions, it has been made clear that any
affected party may call further evidence at that time as well.

Similarly, in Re Royal Commission on Conduct of Waste Manage-
ment Inc. et al (1977), 17 O.R. (2d) 207, the Court, in discussing the
respective scopes of s. 5(1) and s. 5(2) of the Act, said: "The purpose of ss.
2 is to be given effect at the end of the inquiry, and is to protect a person
against whom the Commission contemplates an allegation of misconduct in
the finding and report of the Commission, against such finding unless he
had reasonable notice of the substance of the allegation and was allowed
full opportunity to be heard." Mr. Rowell submits that this merely means
that the subsection cannot be given effect to until the end of the Inquiry,
when it must be ascertained whether notice was given in a timely fashion,
and submits that it is too late if given at that stage. I do not accept that
interpretation and it is not the interpretation of the subsection ascribed to it
by other Commissions. I am advised that in the "Mississauga Railway Acci-
dent Inquiry" and the "Inquiry into the Facts of Allegations of Confiict of
Interest Concerning the Honourable Sinclair Stevens," both of which were
federal inquiries, and in the "Royal Commission of Inquiry into Certain
Deaths at the Hospital for Sick Children" which was a provincial inquiry,
it was agreed that the only practical way of applying s. 5(2) of the Ontario
Act, or the similar provision of s. 13 of the Federal Act, was to incorporate
the required notice in counsels' "final" submissions and to allow any party,
who so wished, to call further evidence. It is interesting to note that none
did ask to call further evidence, presumably because they had received full

564 Rulings

notice in the course of the evidence already heard. In the "Commission of
Inquiry into the RCMP," notices were given at the conclusion of evidence,
and some parties did call further evidence.

This approach is set out by David W. Scott, Commission counsel
to the Sinclair Stevens Inquiry, in his article in Pross' "Commissions of
Inquiry" (Carswell, 1990), commenting on the comparable provision s. 13
of the Federal Inquiries Act (which I quoted earlier in the Landreville Case).
At pp. 144-145 of his article, Mr. Scott notes: "The difficulty with section
13 relates to its administration. How can a commission fairly and at the
same time procedurally comply with this provision? If reasonable notice is
given during the inquiry either by specifics in its terms of reference or by
allegations during its course, then if the persons affected responded and met
the allegations during the course of the inquiry, no special notice need be
given under section 13 thereafter. However, if no such notice of allegations
of misconduct was given before or during the course of the inquiry, then
section 13 must specifically be complied with before the commissioner's re-
port is delivered. If notice is given literally before the report is released, the
opportunity to be heard would be somewhat illusory because the commis-
sion would have identified allegations of misconduct in the course of
arriving at its conclusion and thus might be said to have effectually made
up its mind before notice was given. In such circumstances, one might be
forgiven for concluding that the opportunity to be heard was somewhat of
a sham. If the commission gives notice after hearing the argument of
counsel, the same sort of problem may arise. In any event, in an ideal
environment the commission itself should not give notice because the ob-
vious implication is that it may have drawn conclusions in order to draw the
indictment. If a formal notice under section 13 is required, it should prob-
ably be given privately by commission counsel anticipating all possible
findings of misconduct which the commission might make. Further notice
can be given if the draft report suggests additional findings of misconduct.
A solution currently in use is to comply with the notice requirement by way
of Commission counsel's argument. If the argument is delivered in writing
to all parties and they are given an opportunity to be heard under section
13 thereafter, as long as commission counsel's argument is cast broadly
enough to include all possible conclusions as to misconduct, then the requis-
ite notice has surely been given."

S. 5(2) does not require any kind of written notice, or specific no-
tice. Had that been intended it would have said so. All that it asks for is
reasonable notice of the substance of the alleged misconduct, which sug-
gests that such notice, in the course of the evidence, would be the normally

Rulings 565

expected procedure. An early generalized notice would, of necessity, be too
vague to be of much assistance to the subject of such notice, and would
probably result in a demand for particulars that could not be met until the
evidence had been heard. For the Commission to provide a formal notice
at an earlier time, it would have to come, or appear to come, to a factual
conclusion before it had heard submissions from anyone, and that is the
appearance that Commission counsel was attempting to avoid by the agree-
ment of Oct. 1 1, 1990, and later by making it clear that his notice of May
15, 1991, was not necessarily what he would be urging in his submissions.

Commission counsel, in his submissions on this motion, has at great
length, set out, with specific page references, the evidence in the transcripts
that gave Sergeant VanderMeer notice of possible allegations of improper
conduct. As well, counsel for Sergeant VanderMeer either made, or was
present when others made the references I quoted earlier to allegations of
inappropriate conduct on the part of Sergeant VanderMeer, and must have
been aware many months ago of the necessity of being prepared to make
submissions in that regard, and of considering the advisability of calling
witnesses to answer such allegations when invited to do so at the com-
pletion of evidence tendered by Commission counsel on November 20,
1990. However, the invitation was not accepted then, nor later.

Accordingly I find that Sergeant VanderMeer had reasonable notice
of the substance of the allegations of improper conduct now made against
him, whether or not that conduct falls within the meaning of "misconduct"
under s. 5(2) of the Act.

Mr. Rowell submitted that the Inquiry had been unfair to his client
in a number of ways. I am not quite clear what this has to do with s. 5(2),
but gather that he complains that Sergeant VanderMeer, as a result, cannot
now answer the notices of alleged misconduct.

Mr. Rowell submits that his client is prejudiced by the fact that
when he gave his evidence regarding the IIT's investigation, his evidence
was led by Commission counsel, which gave him the opportunity to re-
examine at the end of his testimony. The only reference to this in the
transcript is to be found in vol. 164, p. 68 (Feb. 27, 1990), where Ms
Dunlop, counsel for Sergeant VanderMeer, slated that she had spoken to
Mr. Kelly, Commission counsel, about her leading VanderMeer's evidence,
but had asked for time to consider the question, that VanderMeer had been
called to the stand earlier than she had expected, and Mr. Kelly had
proceeded to examine him (I should emphasize that no mention of this, let

566 Rulings

alone any objection, was made to me at the time of that earlier exam-
ination). She went on to state that under the circumstances she was now
applying to be allowed to examine him after all other counsel had exam-
ined. I agreed to this. Sergeant VanderMeer continued to give evidence until
March 5, at which time Ms Dunlop requested that she should not be called
upon to cross-examine until after the projected spring break in order to give
her time to prepare her cross-examination. This was also agreed to, and we
recessed for the break. When evidence resumed, Ms Dunlop commenced
her cross-examination without further comment. I accordingly fmd that there
was no objection made to the procedure, there was no prejudice, and in fact
Ms Dunlop had the advantage of cross-examining her client after all other
counsel had disclosed their criticisms of him.

Mr. Rowell also complains that Mr. Kelly, as Commission counsel,
had a "hidden agenda," which was to find his client guilty of misconduct
sufficiently serious to cause him to be dismissed from the Force. He sub-
mits that some documents and the names of some potential witnesses were
not disclosed, which prevented his client from making full answer and
defence. The only witness he referred to was an ex-RCMP officer who had
left that Force under a cloud, and about whom Sergeant VanderMeer had
heard over the Labour Day weekend in 1990. The person had been inter-
viewed by the Inquiry investigators, all very experienced senior Metro
Toronto police officers, who had discounted his evidence as being totally
unreliable. However, because of Mr. Rowell's vehement protest, the person
and others were then interviewed, transcripts of their statements were
prepared and circulated while the Inquiry was recessed, and the person in
due course gave his evidence. Other counsel involved submitted that his
evidence did not, because of its nature, advance the interests of the Inquiry,
or of Sergeant VanderMeer, in any way, but Mr. Rowell's submission is
that, even though the witness may not have been credible, his existence and
the transcript of the original interview should have been disclosed to him,
as VanderMeer's counsel, so that he could decide for himself whether that
evidence should be called. I consider that the role of Commission counsel
is to decide what evidence should be called, and should not waste the time
of the commission in calling evidence that is obviously not credible. Mr.
Rowell also complains that five or six documents were not disclosed to him,
until they came to light in later evidence, and that he is therefore in doubt
as to how many other witnesses and documents may not have been dis-
closed. Mr. Kelly, in his reply, satisfactorily explained the reason why the
documents in question were not distributed, and I am satisfied that there
was no prejudice caused to anyone. Over 12,000 documents, ranging from
one to over 200 pages in each, were turned over to the Inquiry investigators

Rulings 567

by the NRPF to be examined for relevancy; the investigators generated
through interviews and obtained by inquiry a great many further documents,
and during the course of the inquiry hearings thousands of documents and
some 240 briefs, many of which contained two or three hundred pages,
were copied and distributed to counsel. For this purpose, it was necessary
to make, at very considerable trouble and expense, 14 copies of every docu-
ment and brief. In my 26 years on the bench, I have never seen anything
to approach the complete disclosure that Commission counsel has arranged
in this Inquiry. If, inadvertently, a document was overlooked, it was dis-
closed as soon as the oversight was discovered. I have examined the doc-
uments that might be helpful to Sergeant VanderMeer. Both Commission
counsel have gone to extremes to ensure that all counsel were as fully
apprised as possible as to disclosure of anticipated evidence and documents,
and I dismiss out of hand the suggestion of bias on their part.

Mr. Rowell complains that some 129 days were spent on examining
the IIT investigation, in an attempt to show improper conduct on the part
of his client. I am not quite sure what this has to do with the timeliness of
the notices, but Commission counsel has pointed out that about 35 days, not
129, were spent in that regard. During this phase, Sergeant VanderMeer was
represented by another counsel. While the actual subject matter of any
session is a matter of individual interpretation, my examination of the
transcripts convinces me that the time spent on the IIT phase was much
closer to Commission counsel's estimate. Unfortunately, due to many
problems such as witness availability, it was not always possible to confine
the hearings to specific subjects. For example eight hearing days during this
period were consumed in an application by Board counsel to disqualify the
counsel for the Police Association on the ground of confiict of interest. In
any event, a thorough examination of the IIT investigation was necessary
in order for me to be able to assess the effect the investigation had on the
Force, and the effect the proliferation of rumours and allegations that
circulated during the investigation might have had on the alleged public loss
of confidence in the Force. I am satisfied that there was nothing improper
about the time spent on the IIT.

Mr. Rowel! further submits that I have no jurisdiction to consider
any matter arising after March 25, 1988, being the date of the Order in
Council creating this Commission. I ruled against this submission on
February 20, 1990, and no appeal was taken from that decision. Counsel
have since proceeded to lead evidence and refer to matters that arose since
March, 1988. Counsel are accordingly estopped from making such a
submission now. However, I should once again point out the absurdity of

568 RuU-igs

the proposition. The very broad terms of reference obviously require me to
consider the operation and administration of the Force as it is now, as well
as how it was in the past. For example, term 5 requires me to report and
make recommendations on "... the state of existing relations between mem-
bers of the Force and the Niagara Regional Board of Commissioners of Po-
lice." There would obviously be little point in making recommendations
about the relations as they existed in early 1988 if the evidence indicates
that the relationship has changed substantially at the present time. Further,
my report would be of little use if I could not take into account changes
that have been made in the operation of the Force as a result of information
that has come to light over the last three years, and instead was forced to
make recommendations to improve the outdated policy that existed in 1987.
Should I recommend changes in 1987 problem areas that have already been
corrected? Should I ignore serious problems that have developed since
1987? Consultants' workshops were held over a period of several days in
the fall of 1989, the results of which were greeted with universal approval
by all parties. To carry Mr. Rowell's proposition to its logical conclusion,
I would have to ignore the valuable information and suggestions that came
out of that rather costly but worthwhile exercise. Term of reference N°. 9
requires me to report and make recommendations on the morale of members
of the Force. I am not persuaded that what was wanted was recommen-
dations on the state of morale in 1987. I accordingly reiterate my ruling of
February 20, 1990, denying this proposition.

The mandate of this Commission is to inquire into, report upon and
make recommendations with respect to the concerns of the Lieutenant Go-
vernor in Council about "... a loss of public confidence in the ability of the
Force to discharge its law enforcement responsibilities" and "... the need
for the public and members of the Force to have confidence in the admini-
stration of the Force." In carrying out that mandate, it will be necessary for
me to canvass the facts that constitute the history of the operation and ad-
ministration of the Force, and in so doing, to consider the matters set out
in the notices of May 15, 1 99 1 , not as matters of misconduct, but as matters
that may have contributed to the possible loss of confidence in the Force on
the part not only of the public, but of members of the Force themselves.

As I pointed out in my ruling on Starr (reference above) at p. 47:
"Commission counsel, in his submissions, stated that he has no intention,
under terms of reference N°. 12, of embarking upon a series of mini-trials
to ascertain whether any members of the Force or other police agencies
have committed improprieties or misconduct. So far as I am aware, no such
course of action was ever contemplated and would be contrary to the spirit

Rulings 569

of the Starr ruling. In the course of carrying out the mandate of the Order
in Council, it may at times be impossible to avoid incidental identification
of some person involved in undesirable practices in the administration of
the Force, but no person will be unnecessarily identified and no conclusions
of law regarding civil or criminal responsibility will be made."

In spite of my repeated assurances that I have no intention of unne-
cessarily criticizing individuals, that any party is free to call any relevant
evidence he or she wishes in response to criticism by other parties, and that
I fully recognize the limitations on my mandate in that regard, this Inquiry
has been side-tracked since the last evidentiary hearings on November 20,
1990, by a series of applications, motions and negotiations amongst counsel.
Had final submissions, and any evidence arising as a result of criticisms of
personal conduct, been proceeded with as agreed to by all counsel but one,
it is probable that the Inquiry report would, by now, be well on its way to
completion. I am anxious to get on with my job, and the parties will have
to rely on my discretion.

For the above reasons I see no justification for stating a case as re-
quested, and the application is dismissed.

570 Rulings

Ruling of September 3, 1991: Ability of the Inquiry to make findings

of misconduct - the Notice requirements of S.5(2) of the Public

Inquiries Act - the Board's motion

There are five motions before me, all dated July 2, 1991, four of which
claim the same relief in virtually identical language, except for the name of
the applicant. As well, all four seek the same relief (apart from a request for
a stated case) as was sought in Sergeant VanderMeer's motion, my ruling
on which is issued at the same time as the present ruling. Because of the
similarity of the motions, I have not repeated all my conclusions on similar
submissions in each ruling, and accordingly this ruling and the VanderMeer
ruling should be read together. The fifth motion, which was mainly for par-
ticulars, was in part -abandoned. In the four motions, Mr. Shoniker on behalf
of the Niagara Regional Police Services Board, Ms McWatt on behalf of six
members of the IIT, Sergeant Ron Peressotti on his own behalf, and Deputy
Chief Kelly on his own behalf each seek an order that no allegations of
misconduct be received by me and no findings of misconduct be made by
me against the applicants on the grounds that requirements of Section 5 (2)
of the Public Inquiries Act cannot be met in the circumstances of these pro-
ceedings and/or the notices of May 15, 1991, exceed the Commission's jur-
isdiction.

The short answer to these motions should be that they are out of
time. On April 19, 1991, a letter was sent to all counsel advising them that
the Commission would convene on May 22, 1991, to hear submissions or
motions concerning anything further any party considered should be done
in completing the Inquiry prior to final submissions, and directing that
notices of motion comply in substance with Rule 37.06 and should be filed
by noon of May 21, 1991. This would allow counsel a week following the
filing of the May 1 5 notices to request further evidence or some other relief.
On May 17, all counsel were advised by letter that the time for such
motions had been extended to June 12, with notices of motion to be filed
by noon of June 11, 1991. On June 12, the return date for motions was
further extended to June 24, with a direction that the notices of motion be
filed during the week of June 17.

None of the present motions complied with that direction. They
accordingly are untimely and should be dismissed on that ground. However,
I agreed to hear the motions, but the timing and general circumstances of
the manner in which the motions were brought forward are relevant matters
that I shall consider.

Rulings 571

In any event, these motions are premature because, on the plain
wording of Section 5 (2), it is impossible to know whether a finding in the
report is of a kind that requires notice until the report is prepared. I refer
to my reasoning on this point on p. 2 of the VanderMeer ruling.

The fifth motion referred to earlier was filed by Mr. Fedorsen on
behalf of Chief Shoveller, asking for an order for particulars of the May 15
allegations against him, and a finding that the allegations were beyond the
Commission's jurisdiction insofar as they pertained to matters arising after
the date of the Inquiry Order in Council. Mr. Pickering, on behalf of ex-
Chief Gayder, requested that Chief Shoveller be called as a witness to sup-
port his motion, and upon my ruling that the Chief should be called, Mr.
Fedorsen withdrew his motion insofar as particulars are concerned, but did
not withdraw the portion of his motion referring to jurisdiction.

Ms McWatt was engaged in a trial on July 8, the return date of her
motion, and when contacted by telephone by Commission counsel, stated
that she had filed her motion when she heard that others were doing so, that
she considered that the question was purely one of law regarding the mean-
ing of Section 5 (2), and would rely on Mr. Shoniker's argument. Deputy
Chief Kelly and Sergeant Peressotti did not appear until contacted by Com-
mission counsel, but appeared in the afternoon of July 8 to request standing
and funding for counsel. The next day, they withdrew their request for
counsel, and made no submissions on their motions, but stated that their
motions remained in force. As a result, the only submissions supporting the
various motions were made by Mr. Shoniker.

Mr. Shoniker submitted that the notices of May 15 in relation to his
clients should be struck out on four grounds. The first was that some oi' the
allegations arose out of matters occurring after the date of the Order in
Council, and were beyond the jurisdiction of the Commission. On February
20, 1990, Mr. Shoniker advanced the same argument, and I ruled against
him. The ruling was not appealed, and cannot be reargued at this time. The
point was also raised by Mr. Rowell in his almost identical motion of June
24, 1991. I repeat the reasons set out in my ruling on Mr. Rowell 's motion,
viz.:

"However, I should once again point out the absurdity of
the proposition. The very broad terms of reference obviously
require me to consider the operation and administration of
the Force as it is now, as well as how it was in the past. For
example, term 5 requires me to report and make recommen-

572 Rulings

dations on 'The State of Existing Relations Between Mem-
bers of the Force and the Niagara Regional Board of Com-
missioners of Police.' There would obviously be little point
in my making recommendations about the relations as they
existed in early 1988 if the evidence indicates that the re-
lationship has changed completely at the present time. Fur-
ther, my report would be of little use if I could not take into
account changes that have been made in the operation of the
Force as a result of information that has come to light over
the last three years, and instead was forced to make recom-
mendations to improve the policy that existed in 1987. Con-
sultants' workshops were held over a period of several days
in the fall of 1989, the results of which were greeted with
universal approval by all parties. To carry Mr. Rowell's pro-
position to its logical conclusion, I would have to ignore the
valuable information and suggestions that came out of that
rather costly but worthwhile exercise. Term of reference N°.
9 requires me to report and make recommendations on the
morale of members of the Force. I am not persuaded that
what was wanted was recommendations on the state of mo-
rale in 1987. I accordingly reiterate my ruling of February
20, 1990, denying this proposition."

Mr. Shoniker submits that to consider matters arising after the date
of the Order in Council would result in "a self-perpetuating, permanent
public inquiry." The simple answer is that I have a discretion as to what I
consider relevant to this Inquiry, and I have no intention of allowing the
Inquiry to continue any longer than is absolutely necessary. On November
20, 1990, Commission counsel completed the calling of evidence he
considered relevant to the mandate of this Inquiry, and no other counsel
accepted my invitation to call further evidence. The Inquiry was, to all
intents and purposes, completed at that time, subject to any party electing
to call further evidence if they considered it necessary because of
allegations raised in the final submissions.

Before adjourning for final submissions, Mr. Shoniker made a state-
ment that the Board was satisfied, and that the public could be assured, that
all relevant evidence had been called and that "... no stone had been left
unturned." Had this Inquiry not subsequently been sidetracked by the legal-
ities raised by some of the parties, this Inquiry would be in the report stage
by now.

Rulings 573

Mr. Shoniker's second point was that the notice procedure, as
adopted by the Commission, was a denial of natural justice and fairness,
and contrary to Section 7 and Section 1 1 (d) of the Charter of Rights and
Freedoms, which guarantee fundamental justice, the presumption of
innocence, and the right to be tried by an independent and impartial
tribunal. So far as I understand this reference, it relates to the May 15
notices being too late. This is very much the same argument advanced by
Mr. Rowell in his almost identical motion on behalf of Sergeant
VanderMeer, and I refer to my ruling in that regard. As in that case, the
Board and its members must have been aware, throughout the hearings, that
they might be criticized, and the Chairman complained in her evidence of
the fact that they were being made "targets." It would be impossible for
members of the Board to undergo the cross-examination to which they were
subjected, particularly by counsel for ex-Chief Gayder and the Police
Association, as well as others, without being very much aware of the
allegations of instances of improper conduct, both general and specific, that
might be made against them. Indeed, Board counsel has complained bitterly
on many occasions, and as recently as the last few weeks, about those
allegations made by other counsel. As well, Commission counsel has, in his
submissions, set out the exact spot in the transcripts where evidence of the
allegations provided notice to the Board and its counsel. These references
clearly indicate that the Board and its counsel had to be aware of what was
being alleged against the Board by Commission counsel and other parties,
long before the evidence concluded.

Counsel for Mr. Gayder and for the Police Association have
submitted that in bringing its present motion, the Board is taking part in an
orchestration, in company with the others making identical motions, to
frustrate the objects of this Inquiry. They suggest that it is relevant whether,
in bringing these late motions, the applicants genuinely believed in their
applications and had a factual foundation for their claim that they were
unaware of the substance of the allegations against them. They requested
that the present Chairman of the Police Services Board, and one of its
members, be called as witnesses in that regard. When the Chairman and the
member appeared before the Inquiry, Board counsel stated that he would
allow them to answer "two simple questions, and that is 'Are you surprised
(by the May 15, 1991 notices) and if you were, explain fully why?'" He
stated that they would refuse to be cross-examined thereon, and if that was
not satisfactory to me, he requested that I state a case in that regard for the
Divisional Court. To do so, it would of course have been necessary to call
the Board witnesses to the stand, and if they refused to be sworn or to an-
swer questions, to state a case to the Divisional Court requesting that they

574 Rulings

be held in contempt. To avoid the obvious embarrassment, legal compli-
cations and delay that would ensue in that event, the counsel who had re-
quested their attendance withdrew their request.

However, I must take into account this refusal in connection with
the submissions. I have already mentioned that it has been submitted that
the manner in which these motions were brought is relevant to my consider-
ation of whether the applicants genuinely believed that they had not been
provided with adequate notice. Upon the timeliness of this motion being
challenged by opposing counsel, Mr. Shoniker stated that he had attended
on June 24, 25, and 27, 1991, to bring this motion, but was not reached be-
cause of the length of Mr. Rowell's motion. That is not accurate. At the end
of Mr. Rowell's motion on June 27, Commission counsel asked Mr. Sho-
niker whether he had a motion to bring. Mr. Shoniker stated that he had,
but was awaiting instructions. Twelve pages of transcript later (June 27/91
transcript, vol. 236, pp. 184-195) following my intervention and that of
other counsel, I had still not been able to learn what the substance of the
motion was to be. In view of the fact that the Board had been in receipt of
the May 15 notices for six weeks, had given no indication of moving again-
st them until after Mr. Rowell's submissions on his motion iiad been made,
and in view of Mr. Shoniker's statement — "In filing a motion as I did, I've
followed, wisely or unwisely, the format that I had seen in the motion filed
by Mr. Rowell." I am forced to question the sincerity of the submission that
the Board was taken by surprise by the May 15 notices which raised the
question of whether some of the Board's actions might constitute mis-
conduct. On all of the evidence, I find that the Board had reasonable notice,
during the course of the hearings, of the substance of the allegations against
them.

In my ruling on Mr. Rowell's motion, I have already outlined the
circumstances of an agreement reached at an October 11, 1990, meeting of
counsel, including Mr. Shoniker, Mr. Fedorsen, and Ms McWatt, called by
Commission counsel to consider any "outstanding matters." All, except
Sergeant VanderMeer's counsel, agreed that the evidence and final sub-
missions by counsel would satisfy the notice provisions of Section 5 (2). No
one questioned this agreement following Commission counsel's letter of Oc-
tober 15, 1990, requesting that "All counsel v/ho indicated they had to get
back to us on matters raised at the meeting of counsel should do so not la-
ter than Friday, October 19/90." On December 9, 1990, Commission coun-
sel polled all counsel requesting suggestions as to the earliest reasonable
date for final submissions. Amongst others, Mr. Shoniker replied, proposing
April 15, 1991, without any suggestion that the agreement of October 11,

Rulings 575

1990, was not in effect. On January 17, 1991, Commission counsel wrote
all counsel, enclosing Mr. Rowell's correspondence disputing the proposal
to accept "fmal" submissions as adequate Section 5 (2) notices, and re-
iterating Commission counsel's argument in favour of that procedure, and
asking that if any counsel no longer agreed with his position, that they
should advise him immediately. Neither Mr. Shoniker nor any other counsel
indicated any change in position. Accordingly, quite apart from the fact that
notice within the meaning of Section 5 (2) was given to the Board by way
of evidence and submissions during the course of the evidence, and by spe-
cific notice on May 15, 1991, I find that the October 11, 1990, agreement
that notice under Section 5 (2) should be given by way of the final sub-
missions is binding upon all counsel except Mr. Rowell, and that the Board
cannot unilaterally void that agreement.

Following correspondence and telephone calls from Commission
counsel insisting on the production of Board minutes and tapes in
accordance with my ruling of February 20, 1990, Mr. Shoniker on March
11, 1991, wrote Commission counsel a four-page letter questioning the
relevancy of the requested tapes, and also referring to a June 20, 1990,
discussion outside the Hearing Room, when Mr. Shoniker and Mr. Fedorsen
expressed to Mr. Kelly their "concern that the Commission was targeting
Board members and Chief Shoveller," and that Mr. Kelly had expressed
some concern with respect to their activities, but nothing that approached
"wrongdoing." Mr. Kelly replied on March 25, 1991, respecting the
relevancy of the tapes, and in relation to the June 20, 1990, discussion,
stated that at that time he advised Mr. Shoniker and Mr. Fedorsen that it
was not then possible to provide any definitive view of the position that
Commission counsel would take until he had been able to fully review the
evidence and that when he had done so, he would notify them of his
submissions, but that those submissions were not yet completed. Mr.
Shoniker replied on March 28, 1991, about the requested tapes and also
referred to an understanding that "conduct of counsel; that is, Fedorsen,
Shoniker, is not an issue which you are required to explore" and stating that
on June 20, 1990, Mr. Kelly said to Mr. Fedorsen and Mr. Shoniker "1
sense your lady (meaning Mrs. Taylor) is in more trouble than your guy
(meaning Chief Shoveller), but it doesn't approach wrongdoing." It is
apparent that the counsel involved do not agree on the details of the June
20 discussion. I have no intention of involving myself in a question of the
accuracy of the recollections of counsel of long past events. Mr. Shoniker
suggests that his interpretation of the discussion may have affected the
manner in which he conducted his case after June 20, 1990. However, after
June 20, 1990, no member of the Board gave evidence and no evidence was

576 Rulings

received concerning any allegations of misconduct of the Board or its
members, so that, even if Mr. Shoniker's recollection of the discussions is
correct, it could not have affected the manner in which he subsequently
conducted himself in the hearings. Had he placed much importance on the
discussion, surely he would not have waited nine months to attempt to
confirm his understanding of it, particularly in view of the casual and
imprecise nature of discussions that normally develop between counsel, after
being associated for two years or more, on an informal proceeding such as
this. Following receipt of the "notices of misconduct" on May 15, 1991,
Mr. Shoniker wrote Commission counsel complaining that some of Mr.
Kelly's notices appeared to criticise Board counsel, and submitted that this
was beyond the Inquiry's jurisdiction. No mention was made of the June
20, 1990 discussion. Surely, if Board counsel was genuinely placing
reliance on that discussion, this would have been the time to vigorously
protest any notices raising a question of misconduct on the part of the
Board. I am satisfied that whatever was the real import of the June 20, 1990
discussion, it did not affect Board counsel's conduct of his case, nor could
it bind me as Commissioner, or counsel for ex-Chief Gayder, counsel for
the Police Association, or any other counsel whose May 15 notices
contained allegations against the Board, and thus the June 20, 1990
discussion should not have affected Mr. Shoniker's conduct of his case. In
any event, Mr. Shoniker's recollection refers to the word "wrongdoing."
"Wrongdoing" seems to connote something much more evil or reprehen-
sible than "misconduct." If that word was actually used, it seems probable
that it was meant to refer to some type of criminal misconduct, in which
case, as a matter of Constitutional Law, it could not mean "misconduct"
within the meaning of Section 5 (2), and so had nothing to do with "notice
of misconduct" under that Section. If Mr. Shoniker's argument is that Mr.
Kelly was saying that Mrs. Taylor was in trouble because of her conduct,
but that that conduct didn't approach wrongdoing in the criminal sense, then
the statement had no significance to this Inquiry. I am specifically pro-
hibited, by my terms of reference, from making findings of criminal respon-
sibility. However, conduct that doesn't approach wrongdoing may still be
open to criticism by a Commission of Inquiry. The Board has frequently
proclaimed its expectation of criticism. As recently as July 17, 1991, Mr.
Shoniker said (vol. 240, p. 49): "The Board of Commissioners of Police and
the individual members of the Board have always accepted the fact that they
would be open to criticism by your Honour's report. To the extent that your
Honour's report would be constructively critical and put this police force
in a better light, that is something that the Board of Commissioners of
Police has always expected. However, there is a difference between the
concept of being open to general criticism for decisions made; there is a

Rulings 577

difference between being open to constructive criticism that will assist or
facilitate in advancing the cause of law enforcement, and formal notice un-
der Subsection 5 (2) of the Public Inquiries Act that a finding of mis-
conduct is going to be made against you. They are apples and oranges, in
my respectful submission, Mr. Commissioner, and they ought to be treated
as such." This, of course, illustrates my earlier point regarding these ap-
plications being premature. Until the report has been prepared, one cannot
judge whether it contains findings of misconduct or simply criticism. Fur-
thermore, the Board does not complain that it cannot respond to criticism
of its conduct revealed in the evidence; how then can it complain that it
cannot respond to allegations of possible misconduct revealed in the evi-
dence? The evidence and events are the same. The fine line between cri-
ticism and misconduct may be seen differently by different persons; the dif-
ference is in the eye of the beholder. In any event, in my view as set out
at pp. 8 and 9 of my ruling on the VanderMeer motion, which I incor-
porate here, my focus as Commissioner will be on recommendations to
avoid future repetition of improper conduct rather than on the conduct itself.

Thirdly, Mr. Shoniker submits that his clients were prejudiced
because their evidence was not led by their own counsel. Mrs. Taylor,
Board Chairman, first gave evidence on June 21, 1989, and was led by Mr.
Shoniker in chief. She was recalled to the stand on September 12, 1989, and
was first examined by Commission counsel and cross-examined by Mr.
Shoniker. On October 16, 1989, Mrs. Taylor was called to the stand on a
different subject and was led in chief by Mr. Shoniker and cross-examined
by Commission counsel and others. On June 24, 1990, Mrs. Taylor gave
evidence on another subject and was examined in chief by Commission
counsel and cross-examined by others and Mr. Shoniker. At no time, in my
presence, nor on the record, were there any discussions on the question of
who would lead. Two other members of the Board also gave evidence
without any discussion on the order of examination. As a matter of fact, the
only discussions at any time during the hearings I recall about the order of
examination of any witness was when counsel for a witness insisted they
should have the advantage of cross-examining at the very end of the
witness' evidence after other counsel had completed their examinations. In
any event, since no protest was made at the time, it is much too late to
complain now. I find no unfairness in that regard.

In a general way, without reference as to how it affects the question
of timing of the notices, Mr. Shoniker complains that his clients have been
denied natural justice in relation to several of my rulings. At the beginning
of this Inquiry, before the opening of evidentiary hearings on November 14,

578 Rulings

1989, the Inquiry investigators, all of them Senior Metro Toronto Police Of-
ficers, attempted to interview as many as possible of the prospective wit-
nesses. They requested permission from counsel for ex-Chief Gayder to in-
terview Mr. Gayder. Because Mr. Gayder was an acknowledged target of
most of the allegations contained in the 1977 IIT Report, his counsel re-
fused to allow him to be interviewed unless the Commission would under-
take that the transcript of the interview would be revealed to none other
than the investigating officer and Commission counsel. Because it was es-
sential that Commission counsel should have some idea of what Gayder' s
evidence might be in order for him to prepare his examination of Gayder,
and to decide what witnesses should be called, and in order to save the
great amount of time that might be wasted should Commission counsel have
to examine Gayder without any idea of what his evidence might be, I
consented to Commission counsel giving the required undertaking. Without
the undertaking, there would have been no interview to assist Commission
counsel, and no interview to disclose to other parties. However, counsel for
the Board of Police Commissioners applied to me to release copies of the
Gayder interview to them. In my ruling of December 13, 1988, 1 refused to
compromise the credibility of the Inquiry by breaching the undertaking,
particularly in view of the fact that had no undertaking been given, there
would have been no interview to be released. That ruling was not appealed,
and cannot be reargued at this time. I should point out that, because of the
undertaking, I myself have not read the interview.

Mr. Shoniker also complains that, in August of 1988, before
hearings had commenced, during a telephone conversation between Staff
Sergeant Cleveland, an Inquiry investigator, and Mr. Fedorsen (counsel for
Chief Shoveller and law partner of Mr. Shoniker), Mr. Fedorsen discovered
that part of his conversation was being recorded. Staff Sergeant Cleveland
explained that his telephone was connected to the recorder because he had
been taking statements from a variety of prospective witnesses over the tele-
phone and, when it came to a portion of Mr. Fedorsen's conversation re-
lating to possible times that Mr. Fedorsen's client would be available to be
interviewed and the permissible areas to be covered. Staff Sergeant Cleve-
land flipped on the recorder in order to have an accurate record of the va-
rious times and areas suggested. This explanation was apparently accepted
by Mr. Fedorsen and Mr. Shoniker in view of their later comments. On De-
cember 7, 1988, Staff Sergeant Cleveland was being questioned by Mr.
Shoniker on the witness stand. In vol. 13 of the transcript, p. 32, Mr.
Shoniker in questioning Staff Sergeant Cleveland states: "I think that this
witness, Mr. Commissioner, is an officer who should be, and deserves to be
recognized in a very special way. My client, the Board of Commissioners

Rulings 579

of Police, are very, very grateful, not only to the Metropolitan Toronto
Police Force for supplying the fine investigators that we have, but
particularly Staff Sergeant Cleveland. I know, and I think everybody appre-
ciates the great deal of time that you've put into this Inquiry, in general,
and in particular, the tedious job. I know you think that's — you're a little
embarrassed by that. I know I've taken you by surprise." Further on in his
cross-examination, on December 13, 1988 (vol. 16, p. 70) Mr. Shonikcr
says: "Staff Sergeant Cleveland— I almost called you Staff Superintendent
Cleveland." Cleveland: "Thank you." Shoniker: "You could use the promo-
tion after all your work," and, at p. 81 Mr. Shoniker stated: "This officer
has a reputation far beyond Metropolitan Toronto. He takes a building apart
brick-by-brick. When he's fmished, he can tell you how many stones are in
each brick." In the same volume, p. 95, Mr. Fedorsen, in questioning Staff
Sergeant Cleveland states: "Let's backtrack to your position as a Homicide
investigator, prior to ever being on this investigation, just so we can get an
idea of how topnotch investigators work." In view of these ringing
endorsements by Mr. Shoniker and Mr. Fedorsen, made publicly sometime
after the telephone recording incident, I find it difficult to accept Mr. Sho-
niker's complaint that he perceives that there has been a denial of natural
justice as a result of the recording incident.

Fourthly, Mr. Shoniker submits that because the actual notices of al-
leged misconduct were not delivered until the end of the evidence, the
Board was deprived of its right to refuse to produce its minutes and other
documents. Over a year ago, when the Board refused to produce these
items, I ruled that all such documents that were relevant to the Inquiry and
not covered by solicitor and client privilege must be produced. In any event,
it is not open to a Board that has repeatedly proclaimed its intention to seek
the truth, no matter the cost or embarrassment to its members, to now com-
plain that it has been too cooperative. The Order in Council expressly or-
ders "That all Government Ministries, Boards, Agencies and Commissions
shall assist the Commissioner to the fullest extent in order that he may car-
ry out his duties and functions." I do not accept the submission that the
Board has been deprived of any rights in this regard.

Mr. Shoniker submits that some of the May 15 notices appear to
criticize Board counsel, and that it would be beyond my jurisdiction to
ascribe misconduct to counsel under term 12 of the terms of reference,
which refers to misconduct of members of the Force and other police
agencies. I, of course, agree. This is not an inquiry into the legal profession
or its members. Nevertheless, I consider I have an absolute right to control
the process of this Inquiry and this includes the right, should I see fit, to

580 Rulings

comment in my report upon the conduct of counsel by way of criticism or
commendation. However, I assume that actions taken by counsel are taken
on the instruction of their clients, and normally any criticism of such actions
should be directed at the client. As Commission counsel pointed out, clients
cannot escape criticism by hiding behind the gowns of their lawyers.

Sergeant Peressotti's position is different from the others. On
October 18, 1989 (transcript, vol. 113, pp. 4-14), Sergeant Peressotti was
called as a witness, and he requested standing and funding because he had
taken part, without notifying his superiors in the Niagara Regional Police
Force, in a secret Ontario Provincial Police investigation, code-named
"Project Vino." Commission counsel stated that he did not intend to make
submissions that Sergeant Peressotti was at fault for taking part in "Project
Vino," and canvassed all other counsel as to their intentions. Some counsel
indicated they could not agree without instructions from their clients, but
Sergeant Peressotti did not pursue his application. Later in the Inquiry he
was recalled as a witness on another matter, as a result of which Mr.
Matheson, counsel for Sergeant Typer, filed a notice on May 15, 1991,
questioning whether Sergeant Peressotti was guilty of misconduct under
Section 5 (2) because he and Sergeant VanderMeer alleged that Sergeant
Typer had surreptitiously rendered inoperative a body pack intended to be
used in a wiretap procedure, and had later asked an informant whether
Sergeant Typer had altered wiretap tapes. By a letter delivered to Sergeant
Peressotti on May 16, 1991, Commission counsel advised him that they did
not intend to ascribe misconduct on the Sergeant's part in fmal submissions,
but had included allegations of possible misconduct in the May 15 notices
because they are matters in evidence and might be referred to by others.
When Sergeant Peressotti attended on this motion, he submitted that he had
understood from Commission counsel that he would not be subject to an
allegation of misconduct, and had been prejudiced by acting on that
assumption in not requesting counsel to advise him during his evidence.

I must bear in mind that Sergeant Peressotti is a layman and
unrepresented by counsel. It is apparent that he took too broad a view of
Commission counsel's statement of October 18, 1989, but I accept his
evidence that he believed it meant that no misconduct, within the meaning
of Section 5 (2), would be made against him arising out of any evidence
before the Inquiry. Commission counsel has stated on this motion that he
does not intend to allege Section 5 (2) misconduct against Sergeant
Peressotti in his final submissions. Sergeant Peressotti's involvement in
potential findings of misconduct is not great enough to justify the delay and
expense in now providing him with counsel and reheari,ng the evidence

Rulings 581

affecting him. I consider that 1 can come to a factual conclusion on the
evidence as it affects Sergeant Typer without making any finding under
Section 5 (2) against Sergeant Peressotti, and in view of Sergeant
Peressotti's reUance to his prejudice upon his understanding, I beUeve that
as a matter of fairness I should grant him some relief. Accordingly, while
I do not grant Sergeant Peressotti's motion on the grounds stated therein to
the effect that the requirements of Section 5 (2) cannot be met, or that the
notice of May 15, 1991, exceeds my jurisdiction, in the interests of fairness
I rule that I shall not consider any questions as to whether Sergeant
Peressotti's conduct amounted to misconduct within the meaning of Section
5 (2) of the Public Inquiries Act.

For reasons already given, all other motions are dismissed.

582 Rulings

Ruling of the Divisional Court of March 31, 1992: Ability of

the Inquiry to make findings of misconduct - the Notice

requirements of s.5(2) of the Public Inquiries Act

ONTARIO COURT OF JUSTICE

DIVISIONAL COURT

O'DRISCOLL, O'BRIEN and AUSTIN JJ.

IN THE MATTER OF The Royal
Commission of Inquiry Into The
Niagara Regional Police Force

AND IN THE MATTER OF the
Decisions of the Commissioner
The Honourable Justice W.E.C.
Colter, released September 3,
1991;

AND IN THE MATTER OF a stated
Case Pursuant to Section 6
of the Public Iiuiuiries Act
R.S.O. 1980, C.411

BETWEEN:

CORNELIS VANDERMEER,
DENISE TAYLOR and
NIAGARA REGIONAL POLICE
SERVICES BOARD

Applicants

-and-

ROYAL COMMISSION OF INQUIRY
INTO THE NIAGARA REGIONAL
POLICE FORCE

Respondent

Robert P. Armstrong Q.C.
and Michael A. Penny
for the applicants

W.A. Kelly, Q.C. and
Ronald D. Collins for
respondent Commission

D.W. Brown, Q.C.
and J. P. Zarudny for
Attorney - General,
Intervenor

F.D. Pickering for
ex-Chief Gayder

Heard: December 4, 5, 6
and 16, 1991

AUSTIN J.:

Cornel is VanderMeer is a Sergeant of the Niagara Regional Police Force.
Denise Taylor is a member and former chairman of the Niagara Regional

Rulings 583

Police Services Board. VanderMeer, Taylor and the Board apply to this
court for alternative forms of relief. One is judicial review of decisions
made on September 3, 1991, by the Honourable W.E.C. Colter, Commis-
sioner of the Royal Commission of Inquiry into the Niagara Regional Police
Force. In the alternative, the applicants ask this court to order the Com-
missioner to state a case to this court with respect to those decisions.

The applicants seek to prevent the Commissioner from making any
findings of misconduct against them.

The decisions deal with whether notice had been given to the appli-
cants as required by the Public Inquiries Act, R.S.O. 1980, c.411, s.5(2).
Section 5 reads as follows:

(1) A commission shall accord to any person who satisfies it
that he has a substantial and direct interest in the subject-
matter of its inquiry an opportunity during the inquiry to
give evidence and to call and examine or to cross-examine
witnesses personally or by his counsel on evidence relevant
to his interest.

(2) No finding of misconduct on the part of any person shall be
made against him in any report of a commission after an
inquiry unless that person had reasonable notice of the
substance of the misconduct alleged against him and was
allowed full opportunity during the inquiry to be heard in
person or by counsel.

The applicants argue they did not receive the notice required and,
as a result, the Commissioner is now unable to give them a full opportunity
to be heard.

FACTS

In 1987 relations between the Board and the then-Chief of Police, James
Gayder were not smooth. An internal investigation was conducted. Gayder
resigned. The results of the investigation were reported to the Ministry of
the Attorney General. The Ministry took the position that the report did not
disclose reasonable and probable grounds for any criminal charges. The
Board secured other opinions to the contrary. The Board then asked the Mi-
nistry for a public inquiry. This was first refused and then granted, effec-
tive March 25, 1988.

584 Rulings

The Order in Council reads as follows:

On the recommendation of the undersigned, the Lieutenant
Governor, by and with the advice and concurrence of the
Executive Council, orders that

WHEREAS concern has been expressed in relation to the
operation and administration of the Niagara Regional Police
Force, and

WHEREAS the expression of such concerns may have
resulted in a loss of public confidence in the ability of the
Force to discharge its law enforcement responsibilities, and

WHEREAS the Niagara Regional Board of Commissioners
of Police has asked the Government of Ontario to initiate a
public inquiry into the operation and administration of the
Force, and

WHEREAS the Government of Ontario is of the view that
there is need for the public and members of the Force to
have confidence in the operation and administration of the
Force, and

WHEREAS it is considered desirable to cause an inquiry to
be made of these matters which are matters of public
concern,

NOW THEREFORE pursuant to the provisions of the
Public Inquiries Act, R.S.O. 1980, c.41 1, a Commission be
issued appointing the Honourable Judge W.E.C. Colter who
is, without expressing any conclusion of law regarding the
civil or criminal responsibility of any individual or
organization, to inquire into, report upon and make
recommendations with respect to the operation and
administration of the Niagara Regional Police Force since
its creation in 1971, with particular regard to the following:

( 1 ) the hiring practices and promotional processes of the
Force;

Rulings 585

(2) the Storage and disposal of all property seized or
otherwise coming into the possession of the Force
during the discharge of its responsibilities, with
particular emphasis on the storage and disposal of
firearms;

(3) the policy and practices of the Force with respect to
the use of police or municipal resources and any use
of those resources for private purposes;

(4) any inappropriate practices or procedures with
respect to the management of the Force which have
been established either by the Niagara Regional
Board of Commissioners of Police or by senior
officers of the Force;

(5) the state of existing relations between members of
the Force and the Niagara Regional Board of Com-
missioners of Police;

(6) the reporting relationships between the senior
officers of the Force and the Niagara Regional
Board of Commissioners of Police and internal
reporting relationships within the Force;

(7) the policies, practices and procedures of the Force
and the Niagara Regional Board of Commissioners
of Police respecting public complaints against
members of the Force;

(8) the matters disclosed by the Inquiry into the Drug
Raid on the Landmark Hotel in 1974 and the pro-
priety, efficiency and completeness of any other
investigations into the activities of the Niagara
Regional Police Force by other police forces or
police agencies since the creation of the Niagara
Regional Police Force and the action taken to cor-
rect identified problems to implement recom-
mendations resulting from such Inquiry and in-
vestigations;

(9) the morale of members of the Force;

586 Rulings

(10) whether the amalgamation of the police forces
which now constitute the Force has resulted in a
cohesive police organization that permits orderly and
appropriate functioning;

(11) the policies and practices of the Force relating to
release of information to the news media, and the
state of existing relations between the Force and the
news media; and

(12) improprieties or misconduct on the part of members
of the Force or any other police agencies arising out

- of the matters herein enumerated,

AND THAT Government Ministries, Boards, Agencies and
Commissions shall assist the Commissioner to the fullest
extent in order that he may carry out his duties and
functions, and that he shall have authority to engage such
counsel, expert technical advisors, investigators and other
staff as he deems proper at rates of remuneration and
reimbursement to be approved by the Management Board of
Cabinet in order that a complete and comprehensive report
may be prepared and submitted to the Solicitor General,

AND THAT the Ministry of the Attorney General will be
responsible for providing administrative support to the
Inquiry,

AND THAT Part III of the said Public Inquiries Act be
declared to apply to the Inquiry,

AND THAT Order in Council numbered O.C. 429/88, dated
the 18th day of February, 1988, be revoked.

Recommended "Joan Smith" Concurred "Murray J. Elston"
Solicitor General Chairman

Approved

and Ordered March 25, 1988 "Lincoln Alexander"

Date Lieutenant Governor

Rulings 587

Counsel to the Commission was appointed. In addition, an investi-
gation staff of six Metropolitan Toronto police officers was seconded full-
time to the Commission.

VanderMeer had been a member of the Internal Investigation Team
(IIT). He was interviewed on nine occasions by the investigating staff be-
fore the hearings began, and a further 15 times during the taking of evi-
dence. That evidence began on November 14, 1988, and continued on and
off over 227 hearing days until November 20, 1990. VanderMeer gave evi-
dence on 26 of those days.

Ten of the interviews he gave were transcribed and copies of the
transcript were available to counsel at the hearing. This procedure was
followed with all other police witnesses except Gayder. He gave one or
more interviews, but the transcripts were available only to Commission
counsel. This apparently was a condition Gayder had imposed or extracted
before agreeing to be interviewed.

VanderMeer and the Board asked for and were granted standing.
Each was represented by counsel at the hearing. Taylor was a member of
the Board. She did not ask for standing in her own right and had no counsel
representing her alone.

Like VanderMeer, Taylor gave a lengthy interview to Commission
staff on May 18, 1988. The transcript was 185 pages long and was available
to all participants. She gave three additional interviews to Commission
counsel.

The hearings were divided into four phases according to subject
matter. After each phase, submissions were received from counsel on that
particular phase.

The first phase dealt with guns and other weapons registered in
Gayder' s name and found in a closet near his office.

The hearings on phase 1 started on November 14, 1988, and ended
on April 20, 1989. Submissions took from May 1 to 8, 1989.

The second phase (May 9 - August 15, and August 21-23, 1989)
dealt with the use of Force resources. Evidence was given about new tires
and a coat of paint for a car owned by Gayder' s secretary, the purchase of

588 Rulhigs

a police vehicle by a member of the Force, and the use of a Force bank
account for private purposes, e.g. retirement gifts.

The third phase (August 28 - September 20, and August 2, 1989)
dealt with hiring practices and alleged nepotism on the part of Gayder.

The fourth and last phase (October 10, 1989 - November 20, 1990)
dealt with the internal investigation, the role of the Board and of Mrs.
Taylor, the role of Chief Shoveller (who replaced Gayder), the earlier in-
vestigations by the Ontario Police Commission and by the Ontario Provin-
cial Police, and allegations respecting infiltration of the Force by organized
crime. The last evidence in this phase was heard on November 15, 1990,
but submissions have not yet been heard because of the issues presently
before the court.

It appears that until October 11, 1990, there was no discussion of
the notice required by s.5(2) of the Public Inquiries Act. At a meeting of
counsel that day, it was agreed by all but one that the record of the
Comjiiission, the contents of the submissions to be made in writing by
counsel, and the right to respond by further evidence, would satisfy the
requirements of s.5(2). The one exception was counsel for VanderMeer.
Counsel for VanderMeer took no part in the discussion and advised
Commission counsel that VanderMeer "was not involving himself in the
discussion.

On October 15, 1990, Commission counsel wrote to all other
counsel stating that any counsel who had advised that he or she required
instructions from his or her client as a result of the meeting should notify
Commission counsel not later than October 19, 1990. On October 24, 1990,
Commission counsel wrote to VanderMeer's counsel pointing out that he
had not heard from them. No reply was received and no indication was
received from any other counsel that they wished to take any different
position. The immediate reason for pursuing this matter was to arrange for
the calling of evidence should any counsel indicate any desire to do so. No
one made any such request and on November 20 the hearing adjourned
pending the fixing of a date for the filing of submissions on the final phase.

The matter of notice lay dormant until revived by counsel for
VanderMeer on December 31, 1990. Counsel for VanderMeer wrote to
Commission counsel to advise that he was proceeding on the assumption
that since no notice of misconduct under s.5(2) had been provided to
VanderMeer, no finding of misconduct could be made against him.

Rulings 589

Commission counsel attempted, without success, to reach agreement
with counsel for VanderMeer. As a consequence, Commission counsel de-
cided to give notice to all against whom he might possibly recommend alle-
gations of misconduct. The Commission then directed all parties who were
proposing to recommend fmdings of misconduct to give notice to all pro-
spective "targets" by May 15, 1990. These directions were carried out.

Over thirty people were "named" in the notices. They were many
allegations against VanderMeer, Taylor and the Board. It was agreed that
in view of the number, breadth and seriousness of the allegations, they
would not be made public at that time. The Commission gave the parties
four weeks in which to consider whether they wished to call evidence as a
result of the notices. During that period, no one indicated any desire to call
any evidence. The next step was to be the hearing of submissions on the
evidence taken at the hearing.

By notice of motion dated June 24, 1991, counsel for VanderMeer
moved before the Commission for an order that no allegations of
misconduct would be received and no fmdings of misconduct would be
made against VanderMeer upon the ground that "the requirements of s.5(2)
of the Public Inquiries Act cannot be met in the circumstances of these
proceedings." In the alternative, counsel moved that the Commissioner state
a case to the Divisional Court.

By notice of motion dated July 2 and returnable July 8th before the
Commission, counsel for the Board moved for an order that no allegations
of misconduct be received and no findings of misconduct be made against
the members of the Board, including Taylor. There was no parallel motion
for a stated case.

Extensive argument was heard on these motions in July and on Sep-
tember 3 lengthy reasons were delivered disposing of them.

In brief, the Commissioner dismissed the motions upon the ground
that the applicants had received the notice required by the Act. He also dis-
missed them upon the ground that, as notice had in fact been given and
there was still an opportunity to call evidence, the motions were premature.
In dismissing the motion of Taylor and the Board, the Commissioner relied
as well upon the agreement amongst counsel, made October 11, 1991, that
the record of the Commission and the written submissions to be made by
various counsel would satisfy the requirements of s.5(2).

590 Rulings

The present applications asks that the orders of the Commissioner
be quashed. In the alternative, the applicants ask that the Commissioner be
directed to state a case to this court, by way of appeal from those decisions.

THE ISSUES

One way of framing the issues is to ask whether s.5(2) of the Public
Inquiries Act has been complied with or has been violated. The position of
counsel for the applicants is that notice can only be given by or on behalf
of the Commission and that it must be in writing. As to timing, counsel's
submissions were not so precise; they varied from suggesting it must be be-
fore any evidence was given, to suggesting a time before any evidence was
given as against his. clients. The position of counsel for the Commission
was that notice need not be in writing or from the Commission. He argued
that it could be actual notice.

CONCLUSION

In my view, it is not necessary in the present case to decide the
issues of writing, source or timing. I agree with the Commissioner that the
applicants and their counsel were well aware from the outset of the possible
allegations against them, that they had every opportunity during the course
of the Inquiry to respond to those allegations, that they took those oppor-
tunities and responded to the allegations, that they had witnesses called spe-
cifically to deal with the allegations, and that the door remains open to them
to call or recall witnesses for the purposes of examination or cross-
examination in order to further respond to any and all allegations.

As stated earlier, there were many allegations made against each of
VanderMeer, Taylor and the Board. A few of them are set out in the rea-
sons of the Commissioner. In this court, counsel for the Commission pre-
sented an exhaustive analysis of each allegation. The analysis sets out the
source of the allegation, when it was made and by whom, when and how
it was acknowledged by its "target," when and how it was acknowledged
by its "target's" counsel and how it was responded to. Specifically, it pro-
vides the details of the examination and cross-examination of "accusing"
witnesses and the calling of witnesses at the request of target's, counsel in
order to confront "accusers," or to elicit supportive testimony. The court
was given a meticulous analysis, including excerpts from the examination
and cross-examination of witnesses directed towards contradicting, deflect-
ing, minimizing or otherwise disposing of each allegation. The analysis is
summarized in the factum of counsel to the Commission. The sources are

Rulings 591

found in the "Appendices to Respondent's Factum" which make specific
reference to the 245 volumes of transcripts and over 500 exhibits. In my
view, it would serve no useful purpose to repeat or summarize that analysis
here.

In his reasons the Commissioner refers to some of the allegations
and provides excerpts from the transcript where either the "target" or his or
her counsel acknowledges the allegation and responds to it. At p. 6 of his
reasons dealing with VanderMeer (Application Record, vol. I, tab 4, p. 70),
the Commissioner said:

Both Sergeant VanderMeer and his counsel have been present
during the evidence concerning Sergeant VanderMeer' s investi-
gations and it is inconceivable that they would not have realized
that Sergeant VanderMeer was the subject of vigorous criticism of
his investigative techniques, his making allegations without proper
evidentiary support, and an occasional lack of concern for the prin-
ciples of "the chain of command."

The excerpts from the transcript clearly support this conclusion.

A chronological review of the Inquiry also supports the Commis-
sioner's conclusion that the motions of VanderMeer et al were premature.
The Commissioner had always indicated his willingness to hear further evi-
dence should any person deem it necessary for the purposes of responding
to an allegation of misconduct.

VanderMeer had standing and had counsel representing him
throughout. So did the Board, and its position as a Board is no different
from that of VanderMeer. It was suggested, however, that Taylor was in
a different position as she did not have standing and was not separately rep-
resented. This does not appear to have been argued before the Commis-
sioner as he does not deal with it in his reasons. The plain fact is that coun-
sel appeared on behalf of the Board and the Board included Taylor. Tay-
lor's interests were adequately represented.

At p. 4 of his reasons dismissing the motion by the Board (Appli-
cation Record, vol. I, tab 5, p. 84):

... As in that case [VanderMeer], the Board and its members must
have been aware, throughout the hearings, that they might be criti-
cized, and the Chairman complained in her evidence of the fact that

592 Rulings

they were being made "targets." It would be impossible for
members of the Board to undergo the cross-examination to which
they were subjected, particularly by counsel for ex-Chief Gayder
and the Police Association, as well as others, without being very
much aware of the allegations of instances of improper conduct,
both general and specific, that might be made against them. Indeed,
Board counsel has complained bitterly on many occasions, and as
recently as the last few weeks, about those allegations made by
other counsel. As well. Commission counsel has, in his submissions,
set out the exact spot in the transcripts where evidence of the
allegations provided notice to the Board and its counsel. These
references clearly indicate that the Board and its counsel had to be
aware of what was being alleged against the Board by Commission
counsel and other parties, long before the evidence concluded.

Again, these conclusions are amply supported by the evidence.

A complaint was made before both the Commissioner and this court
that the applicants had been prejudiced by not having their evidence led by
their own counsel. In the circumstances, the applicants appear to have had
the best of all worlds. As is not uncommon with royal commissions, an
agreement was made amongst counsel early in the proceedings as to the or-
der in which counsel would examine or cross-examine. That agreement pro-
vided that in most instances evidence would be led by Commission counsel.
It also provided for changes depending upon particular circumstances. As
a result, at times witnesses were led by Commission counsel and on other
occasions led by their own counsel. On occasion, counsel had the benefit
of cross-examining their own clients. No objection appears to have been ta-
ken at any time on behalf of the applicants. No disadvantage whatever has
been demonstrated and it is difficult to give any weight to this argument.

In the result I see no substance whatever in any or all of the objec-
tions taken by counsel on behalf of the applicants. What appears to have
happened is that during the course of the Inquiry the accusers have become
the accused. As such, their interest in reaching the day of judgment has
abated.

I would dismiss the application. Insofar as costs are concerned,
counsel for the applicants indicated that costs were sought on their behalf.
Counsel for the Commission indicated that instructions would be sought
when the matter was disposed of There will be no costs either for or
against Gayder or the Attorney General. The applicants are clearly not

Rulings 593

entitled to costs. Counsel for the Commission may speak to the matter of
costs by letter forthwith.

Released: March 31, 1992 Application dismissed

APPENDIX J

ABBREVIATIONS

The Board

CAO

CBC

Chairman

CIB

CISO

Commission

Commissioner

CPIC

DMA

DNR

DSR

GATE

GOR

IIT

JFO

MPP

NCIC

NRPA

NRPF

OAPSB

OCCPS

OPA

OPC

OPP

ORACLE

RCMP

SEU

SIU

USA

Niagara Regional Board of Commissioners of Police,

OR its successor, Niagara Regional Police Services Board

Chief Administrative Officer

Canadian Broadcasting Corporation

Chairman of the Board

Criminal Investigation Branch

Criminal Intelligence Services of Ontario

Commission of Inquiry into the NRPF

Commissioner appointed to inquire into the NRPF

Canadian Police Information Centre

Department of Municipal Affairs

Dialled Number Recorder

Daily Supplementary Report

General Aptitude Test Battery

General Occurrence Report

Identification

Internal Investigation Team (of the NRPF)

Joint Forces Operation

Member of provincial parliament

National Crime Information Center (FBI)

Niagara Region Police Association

Niagara Regional Police Force

Ontario Association of Police Services Boards

Ontario Civilian Commission on Police Services

(successor to OPC)

Ontario Police Association

Ontario Police Commission (predecessor of OCCPS)

Ontario Provincial Police

On-Line Records Access Computer for Law Enforcement

Royal Canadian Mounted Police

Special Enforcement Unit

Special Investigative Unit

United States of America

742 2

iM^^iS^LL,„JiimL.

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