Mike on Crime

by Mike McIntyre

  Minuk had stated during the sentencing hearing weeks earlier that Wyant could consider the fact Harvey-Zenk consumed an unknown quantity of alcohol in the hours preceding the crash as an aggravating factor. But Harvey-Zenk’s lawyer, Richard Wolson, took exception with that fact and said he should have made his objections clear at the initial hearing. He told Wyant he couldn’t consider alcohol a factor in any way.

  “I’m not meaning to be rude but you have the position of my client and should sentence him accordingly,” said Wolson. “If the Crown wants to advance that [alcohol consumption], then prove it.” Wolson suggested his client “failed to keep a proper look-out” in causing an “unexplained accident”—a statement that drew audible gasps and groans from Taman’s family. Wolson sat down in disgust, saying “I can’t make submissions in these conditions.” Wyant warned the public gallery to refrain from any more outbursts or they’d have to leave.

  After repeated questioning from Wyant, Minuk shed new light on the deal with Harvey-Zenk and admitted there were major problems with the way the East St. Paul police conducted their investigation at the crash site. No specific details were given. Minuk said the botched probe forced him to cut a true “plea bargain” with Harvey-Zenk—a fact Wyant said hadn’t been made clear during the initial sentencing hearing. “I’m confused. I’ve never heard that before. And it is very, very, very, very important,” said Wyant, noting judges must give greater emphasis on deals in those types of scenarios.

  Minuk said he never meant to imply the Crown had a strong dangerous-driving case against Harvey-Zenk but Wyant, citing passages from the transcript of the previous hearing, said that’s exactly what was done. Wyant said his main source of concern with the proposed sentence was the fact Harvey-Zenk was a police officer at the time and should be held to a higher standard because of it. Both Wolson and Minuk claimed a conditional sentence was within the appropriate range for such a crime and filed a casebook with 20 precedents from across Canada in support of their position. Wyant adjourned his verdict, needing more time to think about it.

  MONDAY OCTOBER 29, 2007

  There was no getting around just how bad this looked. A former Winnipeg police officer spends the night drinking and partying and gets behind the wheel of his car “loaded.” Fellow off-duty officers who are with him at the time apply the “thin blue line” in refusing to tell the truth about what they saw. An innocent mother of three is then killed in a crash and the cover-up begins, ending in a watered-down case being presented to the court “wrapped in a tight package.” In the words of Chief provincial court Judge Ray Wyant, that was the troubling chain of events to explain what the vast majority of the public believed had occurred in the controversial Derek Harvey-Zenk case.

  Moments later, a clearly frustrated Wyant held his nose and grudgingly went along with a plea bargain that spared Harvey-Zenk jail and allowed him to remain free in the community under a two-year conditional sentence. Wyant said the differences between “what we all know happened” and the limited facts presented in court for him to consider “are worlds apart” and made this such a difficult case.

  “It’s a perfect storm of cynicism and why many feel you are, in the proverbial sense, getting away with murder,” he told Harvey-Zenk.

  The city’s largest courtroom was packed with family and friends of Harvey-Zenk and Taman, along with a large contingent of reporters and other lawyers.

  “I’ve spent countless hours thinking about this case,” said Wyant, who told the Taman family he was deeply sorry for their loss. “I wish I could wave a magic wand and turn back time. Instead of a lifetime of hope and happiness, you have a life of pain and anguish.”

  Wyant said the consumption of alcohol would be a “significant factor” and questioned where the evidence of Harvey-Zenk’s colleagues was. “Why did trained police have no relevant information to give? Is it because they weren’t paying attention to the actions of [Harvey-Zenk]? Well, that’s what we’re asked to suspect,” he said. “If there were police officers who witnessed Mr. Zenk consuming alcohol, why weren’t they called?”

  Wyant said judges were under clear instructions from higher courts to give serious consideration to true plea bargains such as the one that apparently existed in this case. But his comments would only increase the public’s belief that justice hadn’t been served here. Not by a long shot.

  The sentencing was finished. But the controversy was far from over. A public inquiry had now been called into the circumstances of the investigation and plea-bargain. Crystal Taman’s family said they hoped the true story would finally emerge. “We did want the evidence to come out, so if this is how it’s going to happen, we’re happy,” said Robert Taman.

  Tory Leader Hugh McFadyen said the case had eroded public confidence in the justice system. “When situations like this arise, it shakes people’s confidence and that confidence can only be restored through an open and transparent process,” McFadyen told reporters.

  Lawyer Hymie Weinstein, who was representing former East St. Paul police chief Harry Bakema, said he felt the decision to have an inquiry was driven by the media and “some of the comments in the media.” “The government responded to that. Sometimes that’s a good thing. Sometimes it’s not,” he said.

  DECEMBER 2007

  He was a couple hundred kilometres away from the scene of the crime. But Derek Harvey-Zenk remained under a microscope as he served his conditional sentence in his new western Manitoba hometown. Harvey-Zenk had already been subjected to at least 12 curfew checks from police and probation officials in Brandon in the four weeks since he began serving his sentence. Sgt. Rick Semler of the Brandon Police Service said the public should have confidence Harvey-Zenk would be closely monitored to ensure compliance with all terms of his sentence. Harvey-Zenk must be in his home at all times between 8 p.m. and 6 a.m. but was allowed to go to work at a local auto shop.

  Winnipeg police had long complained that a lack of resources made it difficult for them to enforce conditional sentences and execute existing warrants in the city. Violators were usually only arrested if found to be committing another crime. “That’s one of the advantages we have out here [in Brandon], being a bit smaller, is that we can do these kinds of checks. And we do them,” Semler said.

  A justice source said the high-profile nature of Harvey-Zenk’s case would likely result in plenty of attention, at least initially. Harvey-Zenk appeared to be taking his sentence seriously. Semler said there had been no alleged breaches. Brandon police said there would be no special favours for Harvey-Zenk. “He won’t be treated any differently than anyone else,” Semler said.

  MONDAY OCTOBER 6, 2008

  It was a damning indictment of the East St. Paul police—and a long-awaited measure of justice for members of the Taman family. Inquiry commissioner Roger Salhany pulled no punches in issuing his report following several weeks of public hearings. His findings included 14 recommendations aimed at several guilty parties.

  “There are a lot of changes that are going to be made in the name of Crystal,” Robert Taman said upon reviewing the findings.

  Special prosecutor Marty Minuk came under attack, with Salhany questioning both his ability and willingness to accept the controversial plea-bargain that dropped all alcohol-related charges against Derek Harvey-Zenk. “Minuk gave up much on behalf of the people of Manitoba, without receiving anything of value in return,” said Salhany. “Moreover, he failed to prepare adequately before resigning himself to the deal he made.” He directed Manitoba Justice to reconsider all contracts with independent prosecutors, and use a larger pool of private bar lawyers to act when a case cannot be handled by line prosecutors.

  Meanwhile, the inquiry was now going to lead to a new criminal investigation into the actions of former ESP Chief Harry Bakema. “It is clear that Bakema’s conduct, indeed his misconduct, had a devastating effect on the ability of a prosecutor to proceed with alcohol-related c
harges against Zenk,” said Salhany. “I am satisfied that Bakema not only falsified his own notes and reports to create a false impression of his own actions, he also prompted a fellow officer to falsify his notes... I am also satisfied that Bakema told [the other officer] not to record what he said about Zenk’s condition (that he was ‘pissed’ or impaired or possibly impaired) or what... the ambulance attendant said.”

  In another major development, Salhany’s findings would officially spell the end of the much-maligned ESP police detachment. Justice Minister Dave Chomiak announced he was disbanding the local force in favour of the RCMP. “It is clear that the investigation of the accident, conducted by the East St. Paul Police Department, was flawed to such an extent that a successful prosecution of was rendered fatal from the time that Bakema…arrived at the scene,” said Salhany.

  Winnipeg police also came under intense scrutiny. Salhany recommended the province set up a special investigative unit to handle all cases of alleged police wrongdoing, to avoid the perception of conflict that clearly existed in this case. “Police officers who are witnesses to criminal activity are not entitled to be treated with kid gloves simply because they are police officers, as the WPS members were treated in this case,” said Salhany. He also took aim at the nearly two dozen police officers who had socialized with Harvey-Zenk in the hours before the crash, first at a Winnipeg restaurant and then later at the home of an officer. He questioned the fact they all claimed to have little recollection of important details from that night.

  “I find it difficult to accept that 10 officers in close proximity to one another in [the officer’s] kitchen for a couple of hours would be unable to say whether Harvey-Zenk had too much to drink or were unable to comment on Harvey-Zenk’s condition to drive home after leaving [the officer’s] residence,” said Salhany. “If they were unable to do so, the reason probably lies in the fact the officers had a great deal more to drink at [the officer’s] residence than they were prepared to admit.”

  MONDAY APRIL 30, 2012

  The finger of blame had been pointed in his direction. Now Harry Bakema would finally have his day in court. An Alberta Crown attorney had been brought in to prosecute Bakema. The former East St. Paul police chief began his trial by pleading not guilty to six criminal charges, including perjury, breach of trust and obstruction of justice.

  RCMP Cpl. Chris Blandford, a collision-reconstruction expert, told court he met with Bakema at the scene to discuss what had happened. Blandford said Bakema revealed a police officer had been responsible—and that drunk driving appeared to be the cause.

  “He told me [Harvey-Zenk] was impaired; it was an attitude like ‘My God, what was he thinking?’ He was very disappointed that this had occurred and a member of the Winnipeg Police Service was the offender,” said Blandford. Paramedics on the scene of the fatal crash reported smelling alcohol on Harvey-Zenk’s breath, according to testimony at the Taman inquiry. But Bakema later testified he didn’t believe Harvey-Zenk had been drinking.

  Blandford said he shared his disappointment with Bakema as they chatted at the scene. He also credited the East St. Paul police for doing a good job in securing the crash site upon his arrival.

  TUESDAY MAY 1, 2012

  Was it an innocent conversation—or the sign of something nefarious? Details of a face-to-face chat between Harry Bakema and Derek Harvey-Zenk at the scene of a deadly crash were raising new questions. A pair of witnesses to the tragedy told court how they observed Bakema and Harvey-Zenk speaking around the same time firefighters were frantically working on the wreckage of Crystal Taman’s crumpled car.

  “They were having words back and forth. That interaction seemed to go on for a while. I wouldn’t say it was a heated conversation,” said Garth Shaw. He was driving into Winnipeg for work that morning when Harvey-Zenk flew by him at high speed and smashed into Taman’s vehicle. “I would say he was doing at least 80 km/h,” said Shaw. He rushed to check on Taman after the crash and realized there was nothing he could do. So he returned to his vehicle to call 911, then watched later as Harvey-Zenk and Bakema walked together to go speak on the side of the road. Shaw said Harvey-Zenk appeared to be walking “slow and deliberate.”

  Another witness to the crash told a similar story of seeing the two men chatting as she was being checked out for possible injuries in the back of an ambulance. The woman had been driving a car that was hit by Taman’s after the initial collision.

  TUESDAY MAY 8, 2012

  His former police colleague had just been involved in a high-speed crash that left an innocent motorist dead. Nevertheless, Harry Bakema seemed to quickly reject suspicion the off-duty officer may have been impaired despite conflicting reports at the scene.

  Ken Graham, a former East St. Paul officer, told court he smelled a strong aroma of booze inside Harvey-Zenk’s empty vehicle following the deadly crash, but Bakema didn’t agree. “He stuck his head in and said he couldn’t smell anything,” Graham said. Bakema had personal contact with Harvey-Zenk at the scene and told Graham “he could not smell any alcohol on him.” Graham never dealt with Harvey-Zenk to make his own observations, court was told.

  Rolland Fontaine, a paramedic who responded to the crash, previously testified about a “very noticeable” smell of alcohol on Harvey-Zenk. Bakema also told Graham he had worked in the same Winnipeg police district as Harvey-Zenk before Bakema moved to East St. Paul. “He said this is a mess. We have a mother, a wife, who’s been killed. He felt bad for the family and bad for the kids. And he said we have a Winnipeg police member who just screwed up his career,” Graham said. Bakema told Graham he was going to assign another veteran East St. Paul officer to take over the investigation because he didn’t want to create any perception of bias based on his personal history with Harvey-Zenk.

  Under cross-examination, Graham said Bakema would not have deliberately sabotaged an investigation. “Harry is not the type of guy to ask someone to change their notes,” Graham said. But he described Bakema as having a very poor memory, which seemed to be getting worse around the time of the fatality.

  WEDNESDAY MAY 9, 2012

  It was perhaps the most explosive piece of evidence yet. Jason Woychuk, a former constable with the East St. Paul police service, told court he was ordered by his boss, Harry Bakema, to exclude details of suspected impairment in his notes about Derek Harvey-Zenk.

  Woychuk said a paramedic at the scene indicated that Harvey-Zenk may have been intoxicated at the time of the tragedy. But Bakema ordered him to keep those details out of his report. “I was told not to put that in my notes. I don’t recall him giving me a reason why,” Woychuk testified. He said Bakema himself indicated that Harvey-Zenk was “impaired, or possibly impaired” as he brought the accused over to his cruiser car and placed him in the backseat.

  Woychuk said he was also told by Bakema to write that he was transporting Harvey-Zenk to the ESP police station for the purpose of making a traffic accident report. In reality, he took him back there to be arrested. Woychuk claimed Bakema gave him these instructions in response to Woychuk’s concerns they may have breached Harvey-Zenk’s Charter rights at the scene by detaining him in a cruiser car without any formal charge or caution. “I felt there was probably a Charter breach,” said Woychuk. Woychuk told court how he signed an immunity agreement with RCMP in 2010—only to be arrested months later and threatened with charges including obstruction of justice and perjury. However, no formal charges were ever laid.

  Under cross-examination, Woychuk admitted he never observed any signs of impairment on Harvey-Zenk. But he rejected suggestions from defence lawyer Hymie Weinstein that Bakema never commented about possible intoxication or that the paramedic didn’t express an opinion about Harvey-Zenk’s state of sobriety. “[The paramedic] made one of those motions with his hand tipped to the mouth, like he’d been drinking,” said Woychuk. He told court he doesn’t believe the investigation was deliberately botched and agreed wi
th a previous statement given to police in which he said there was “maybe a screw-up, but not a cover-up.”

  THURSDAY MAY 10, 2012

  An innocent woman had just died, and yet Harry Bakema was allegedly more concerned about the fate of the off-duty Winnipeg officer responsible for her death. Corrine Scott, a retired superintendent of the Winnipeg Police Service, told court about a puzzling call she received from Bakema immediately after the crash. “Harry was really focused on Derek Harvey-Zenk and not on the lady who lost her life. He was very concerned for Derek Harvey-Zenk’s well-being,” Scott told court. “I was honestly a bit disappointed in Harry.”

  Bakema called Scott directly from the crash scene, less than an hour after the deadly incident, to warn her about Harvey-Zenk’s involvement in the tragedy. “Harry told me Derek had been drinking, he was at a party and smelled of liquor,” said Scott. She began the process of notifying other senior members of Winnipeg police. “I’ve never experienced an incident before where a member was impaired to the extent of causing this type of accident,” she said.

  Harvey-Zenk testified earlier in the day and told court he had no memory of the events surrounding the deadly crash. He was asked numerous questions about the specific details of the case—including socializing at a lounge with fellow off-duty officers, partying at one of their homes overnight and then driving his vehicle directly into Taman’s. But he claimed to only recall vague flashbacks, such as an arm-wrestling contest at the house party and feeling the brunt of the impact. The rest is a foggy blur, he said.

  As for his consumption of alcohol prior to the tragedy?

  “I don’t have any recollection of that,” he said repeatedly. Harvey-Zenk said he also didn’t recall ever dealing with Bakema, either at the scene of the crash or at the East St. Paul police station. “I don’t really recall being at the police station,” he said. “I don’t recall ever seeing Harry Bakema at the station.”