Mike on Crime

by Mike McIntyre

  Prosecutors, of course, take a much different view of Rodriguez’s brain. And they have their own experts who support their position. The legal fight may drag out for a few more years, at various of levels of federal court.

  Meanwhile, Dru Sjodin’s legacy lives on. “Dru’s law” came into effect in 2007, requiring convicted child molesters and those convicted of violent sexual offences to be listed on a national online database and face a felony charge if they don’t update their current whereabouts. A memorial website, which includes additional background on the case, the legislation and detailed updates on Rodriguez, can be found at www.drusvoice.com.

  CHAPTER 9

  JUSTICE WASN’T SERVED

  It was an eight-year legal odyssey unlike few others in Manitoba history. A botched police investigation. A controversial plea bargain. A damning public inquiry. An explosive criminal trial. And so much more. But it all began with a situation that is all-too-familiar— a senseless, completely preventable tragedy where alcohol is involved.

  I’ve lost track of how many of these cases I’ve covered over the years, of how many tears I’ve watched be shed in courtrooms from grieving family members, of how many sputtering apologies I’ve heard from the guilty party that was behind the wheel. And yet drinking-and-driving remains an epidemic. In many ways, this case represents a perfect storm of everything that could possibly go wrong, on so many levels.

  WEDNESDAY MARCH 2, 2005

  The cross of yellow and purple flowers was laid gently on the median. A small group of people huddled at the intersection while police blocked off traffic. Someone began reciting the Lord’s Prayer. A Winnipeg Free Press reporter stood to the side, observing the solemn ceremony.

  Robert Taman stood stone-faced, his three adult children by his side. Several other family members and close friends were also present. Many were choking back tears. All of them wore the same pin on their coats, bearing the name of Mothers Against Drunk Drivers. Taman had just buried his wife, Crystal, at a service attended by more than 700 people. Crystal had been killed just a few days earlier at this very intersection, where Lagimodiere Boulevard meets the north Perimeter Highway.

  “How do we go on living knowing that this could happen to any of us?” Rev. Don McIntyre had asked the congregation. “Life is not always fair.”

  The pain was still raw. There were so many unanswered questions about what had occurred. Crystal had been on her way into work as a dental assistant, taking the same route she travelled all of the time. She had done nothing wrong. She was stopped at a red light in her convertible. Then along came another vehicle—a Dodge Dakota pick-up truck—with catastrophic results. It slammed into her from behind, crushing her vehicle and killing her. Crystal’s two daughters drove by the scene moments later and witnessed the horrific aftermath.

  Police had made an arrest. And the Taman family was stunned to learn who was behind the wheel of the vehicle which had killed Crystal. Derek Harvey-Zenk, 31, was a constable with the Winnipeg Police Service. He was off-duty at the time of the tragedy. And he was now facing several criminal charges: refusing a breathalyzer test, dangerous operation of a motor vehicle causing death and criminal negligence causing death.

  “Sometimes a person is forced to step up,” Robert Taman said at the roadside service. “We want to get through this day. We will have more to say.”

  WEDNESDAY AUGUST 22, 2007

  The wheels of justice had been moving very slowly. And now, two-and-a-half years after a high-profile deadly crash, Manitoba justice officials had struck a plea bargain with the killer driver. It was only serving to inflame an already irate public.

  Alcohol-related charges had been dropped against Derek Harvey-Zenk. In exchange, he pleaded guilty to a lesser offence of dangerous driving causing death. It was a deal that was likely going to keep him out of prison, thanks to a joint-recommendation Crown and defence lawyers made to the judge calling for a conditional sentence to be served by Harvey-Zenk in the community.

  “This is so messed up. The system has let us down in a way that is so bizarre,” said Robert Taman. Justice officials—including a special Crown prosecutor hired by the province—hadn’t told the family what went wrong. “We’re being kept in the dark here, but we know this is as a result of the East St. Paul police. I don’t know what happened here, but you start to wonder about the brotherhood that exists among police officers,” Taman said.

  He said the drunk driving charges should have stuck against Harvey-Zenk unless police “put a gun to his head” in making a demand for a breathalyzer—which he refused. “They made that law so that people can’t just refuse and get away with it,” Taman said. He recalled the words of the former East St. Paul police chief, Harry Bakema, who assured him: “He refused a breathalyzer, he’s guilty,” following the arrest. “Had all of the evidence been shown in this case, we wouldn’t be dealing with a joint-recommendation here,” Taman said. “I’m very disappointed. I believe this is a slap in the face to Crystal.”

  Details of the tragedy were revealed in court for the first time. Harvey-Zenk and other officers had gone to a lounge in northwest Winnipeg following the completion of their shift the night before the crash. After the bar closed, Harvey-Zenk and his colleagues went to a fellow officer’s house in East St. Paul to continue partying. Harvey-Zenk admitted to having some drinks but he denied being drunk. Harvey-Zenk was coming back to the city alone on Highway 59 about 7:10 a.m. when he failed to brake and smashed into Taman’s vehicle. Taman died of massive head injuries. The crash also injured the wife of a Winnipeg police inspector who was in another vehicle.

  Special prosecutor Marty Minuk, along with defence lawyer Richard Wolson, made a joint recommendation for a two-year conditional sentence. But chief provincial court Judge Ray Wyant expressed concern about the deal and reserved his verdict. He said there should be a “higher standard of conduct” from those involved in the justice system and also questioned the fact Harvey-Zenk refused a breathalyzer. Both Wolson and Minuk told the judge he must disregard that because the Crown dropped the charge, along with charges of impaired driving causing death and criminal negligence causing death.

  Minuk didn’t give an explanation as to why the charges were dropped. However, he said there were problems with the case that had forced it to drag out so long. Minuk admitted he also recommended an “independent investigation” be done on the East St. Paul police probe. Outside court, Wolson said he believed East St. Paul police made the breathalyzer demand on his client without evidentiary basis for it. Wolson said Harvey-Zenk may have fallen asleep just prior to the crash and added that alcohol wasn’t a factor. East St. Paul police Chief Norm Carter—whom the Taman family said was the lead investigator—wouldn’t comment.

  Harvey-Zenk, who joined the Winnipeg Police Service in 2000, had been suspended without pay shortly after the crash. He had since resigned and moved to Brandon with his wife and son. “I’ve taken someone away who was so loved and cherished and for this I’m profoundly sorry,” Harvey-Zenk said in a brief statement in court.

  FRIDAY AUGUST 24, 2007

  They had been called incompetent, unethical and incapable of handling even the simplest of assignments. One local radio commentator compared them to the gun-toting buffoons portrayed in the popular Police Academy movies. Others had suggested they should hang up their handcuffs for good and make way for a “real” police service such as the RCMP. So it was safe to say the East St. Paul police and administration had seen better days.

  “It’s been a rough week,” admitted Michael Wasylin, the deputy reeve of the municipality that oversees the operations of its police service. “It seems like everyone who’s ever got a parking ticket from us is now coming out of the woodwork with a complaint.”

  The 10-officer East St. Paul detachment—with a history dating back to 1916—now found itself the subject of intense public scrutiny and a pending judicial review that would likely put
its future on trial. Manitoba Justice Minister Dave Chomiak—citing a series of recent controversies and scandals—said the only way to “restore public confidence” was with a thorough review of the force’s operations. The icing on the cake was the handling of the Derek Harvey-Zenk investigation.

  “We want our residents to have the respect they should for their police department. We’ve implemented a number of recommendations, policy changes, all for the better,” Wasylin said. “But we want to know that our policies make sense, that the people we have in place are the right people and that our officers can be counted on.” He said the old-boy’s-club mentality that dominated for years was gone, giving way to a fresh perspective.

  Police Chief Norm Carter, Reeve Lawrence Morris, Chief Administrative Officer Jerome Mauws and citizen’s protection committee member Gerry Jennings, a retired Mountie, were also speaking publicly.

  “It’s important to know that council has full confidence in Norm and his department,” Wasylin said. Wasylin, who works as a defence lawyer, said senior East St. Paul officials were confident in their message: Their police detachment had changed from two years ago. One of the biggest changes, said Wasylin, was the screening process used to hire new members. This became a major issue following an embarrassing revelation in June 2006 that one of their former members, Michael Sandham, had been arrested and charged with murdering eight Bandidos bikers in southern Ontario in April 2006.

  Wasylin said what many members of the public forget was that Sandham was fired from the force in 2002 after it was learned he’d been secretly providing security for local biker events. “As soon as we found that out he was gone within a day,” Wasylin said. Still, the stench of employing a man who would eventually become a high-ranking biker and get involved in one of the worst mass killings in Canadian history lingered.

  Wasylin said another troubling issue for East St. Paul was a sudden rise in Law Enforcement Review Agency complaints against its officers. “We had probably gone about 10 years with maybe one or two complaints, but all of a sudden, in a short period of time, we had like eight or nine,” he said. “That indicated to us we had a significant problem.” The complaints from members of the community largely involved excessive use of force. Several were settled out of court, a few were dropped and a couple were pending.

  Wasylin and his fellow administrators were now pointing the finger of blame squarely at Harry Bakema, a former Winnipeg police officer who took over the East St. Paul detachment in 2004. Bakema was fired in February 2006 following an in-camera meeting of the municipal council. Wasylin said Bakema’s actions during his short tenure as chief left them no choice. “He no longer had the confidence of his officers. He certainly didn’t have the confidence of the administration,” Wasylin said.

  The Harvey-Zenk controversy had been quietly brewing behind-the-scenes for nearly 30 months before it bubbled over when reaching court. Wasylin and other community members, including the present police chief, wouldn’t disclose what went wrong. But they said Bakema, who was the lead investigator, failed “to follow proper investigative techniques.” “What happened here is inexcusable. For our part in that we feel sorry,” Wasylin said.

  Bakema fired back later in the day through his lawyer, Hymie Weinstein. He denied any wrongdoing in the Harvey-Zenk case. Weinstein said his client spoke briefly with Harvey-Zenk at the scene of the fatal crash, observed him to be in a “state of shock” but didn’t smell any alcohol. He turned Harvey-Zenk over to another East St. Paul officer and remained at the scene for the rest of the day, Weinstein said.

  Bakema said he recognized Harvey-Zenk, having worked with him in the North End district of the Winnipeg Police Service prior to working in East St. Paul. However, Weinstein said his client never worked directly or socialized with Harvey-Zenk. He said suggestions from East St. Paul police and administration that Bakema was fired based on his actions in the Harvey-Zenk case were false. “That was a whole different issue,” said Weinstein, who didn’t want to provide any further details. Bakema was now selling real estate.

  Wasylin said it was Carter—then a sergeant in East St. Paul—who first voiced concerns about Bakema’s conduct and other problems within the service. He said that alone should give the public confidence that serious changes had been made.

  East St. Paul had launched a review of its police department a year ago, with retired RCMP officer Robert Tramley finding evidence of “unprofessional behaviour by officers, poor police practices and use of excessive force.” He also discovered examples of some officers downloading pornography onto police computers.

  Wasylin also revealed that RCMP were called in to investigate East St. Paul police and their handling of Harvey-Zenk’s case the previous year. The Mounties forwarded their finding to an independent lawyer, who ruled that no criminal charges should be laid.

  MONDAY AUGUST 27, 2007

  The truth was slowly beginning to emerge. And the scandal was starting to grow. Former East St. Paul Police Chief Harry Bakema was now being accused by fellow officers of ordering them in advance not to refer in their notes about Winnipeg police officer Derek Harvey-Zenk’s alcohol consumption.

  A justice official—speaking to the Winnipeg Free Press on the condition of anonymity—shed new light on the increasingly alarming situation. “[The officers] said they were told not to put anything in about the alcohol, to go light on what they saw at the scene. Harry [Bakema] told them what to put in their notes,” said the source. “It was because he [Harvey-Zenk] was a city cop.” The source said the revelation about Bakema influencing the police notes came on the eve of Harvey-Zenk’s preliminary hearing in 2006 from Norm Carter, who took over as East St. Paul chief after Bakema was fired.

  The retired RCMP officer who spearheaded a review of the municipal detachment following Bakema’s firing was also joining the chorus, calling the controversial plea-bargain with Harvey-Zenk a “travesty.” “If there’s going to be an inquiry here, [the province] should look at their own department and how they handled this case,” said Robert Tramley. He believed the case should have gone straight to trial where the truth about what happened would have come out.

  The source said the revelation about Bakema influencing the police notes came on the eve of Harvey-Zenk’s preliminary hearing in 2006 from Norm Carter, who took over as East St. Paul chief after Bakema was fired.

  Tramley’s operational review—which had not been made public—looked at many cases including Harvey-Zenk’s and noted that a paramedic at the scene of that crash believed alcohol was involved. “The paramedic noted a strong odour of alcohol from Harvey-Zenk,” according to the source.

  The source said the case against Harvey-Zenk was in trouble because of the fact Bakema—the lead investigator at the crash scene—didn’t make a breathalyzer demand. Harvey-Zenk wasn’t brought back to the East St. Paul detachment until at least 45 minutes after the crash. It was there that Carter—then a sergeant—made a breathalyzer demand which Harvey-Zenk refused.

  “He observed what he felt were signs of impairment,” said the source. “I don’t know why [Harvey-Zenk] wouldn’t have been exhibiting any signs to Bakema. He certainly was to Norm Carter.”

  Tramley said he didn’t understand why Carter’s demand, along with the observations from the paramedic, couldn’t have still resulted in a strong impaired case against Harvey-Zenk. It was believed Harvey-Zenk’s lawyer was going to fight the case on the grounds Carter had no right to ask for something which Bakema, a superior officer, clearly felt wasn’t necessary. Tramley’s review had also cited two incidents where Bakema ripped up traffic tickets given out by his members to a Winnipeg police officer and the son of a city cop, the justice source said.

  Tramley also took aim at Manitoba justice officials for turning to Minuk as special prosecutor, given his previous history of defending police officers and working closely with Harvey-Zenk’s lawyer. “That doesn’t smell very good to me,” he sai
d.

  It didn’t smell good to a lot of people.

  WEDNESDAY SEPTEMBER 12, 2007

  It was music to the ears of the Taman family—and members of the public who thought justice wasn’t being served. The judge tasked with sentencing Winnipeg cop Derek Harvey-Zenk was now expressing serious concerns about a controversial plea-bargain. Chief Judge Ray Wyant said he was being left in the dark about important details of the deadly driving case and was seriously considering rejecting a joint-recommendation that would spare Harvey-Zenk a jail term.

  Wyant even took the rare step of suggesting the case be reopened to allow evidence to be called. He said there were too many questions—especially as it related to alcohol consumption—which he hoped to have answered as he struggled with a proper punishment for Harvey-Zenk. “The court is being left with a gap as to what occurred at the end of [Harvey-Zenk’s] shift until the accident occurred,” said Wyant. “There really isn’t much information being presented to me.” But special prosecutor Marty Minuk quickly turned down the offer without explanation.

  Taman’s family said they were stunned at the latest developments and blasted Minuk for his handling of the case. Victoria Sveinson, Taman’s mother, said they had previously been told the Crown had 33 potential witnesses lined up for trial. “This is a complete cover-up,” she said. “It’s like there were two defence lawyers on Harvey-Zenk’s side,” added her husband, Sveinn.

  Taman’s husband, Robert, said he couldn’t believe how hard Wyant had to work to get any information from either lawyer about the facts of the case or the circumstances surrounding the plea bargain. He said Minuk should have jumped at the chance to call evidence when there was nothing to lose and everything to gain.

  “I don’t understand why he didn’t,” said Robert, adding the family was not consulted about the decision. “This is all very confusing. If you weren’t shaking your head in that courtroom you weren’t awake.”