The Search for Tanya Nepinak’s Body: An Exercise in “Relationship Building” Gone Awry

Searching garbage dumps or remote wooded areas is not a new exercise for police when they are looking for the remains of a murder victim.  It has been done before both here in Winnipeg and in other jurisdictions. The reasons for mounting such searches are simple.  In homicide cases it is more likely that a conviction can be obtained if the victim’s remains are located.  The Christine Jack case is proof of that.  Secondly, a failure to locate a homicide victim’s remains is hard on the victim’s family. Without a body there can never be a true sense of closure.

For those reasons police should make every reasonable attempt to locate victim’s remains in homicide cases.

The Tanya Nepinak case serves to illustrate what happens when police allow non-operational considerations to cloud their judgment.  What is at issue in the Tanya Nepinak case is how police went about determining if a search should be conducted, and if so, the area in which where the search should be concentrated.

Normally when police consider conducting a search for a body in a garbage dump such as the Brady Road Landfill site, it is because they have information either from an accused or witnesses that a body was placed in a dumpster and dumped at a specific location.  As a rule if the decision is made to conduct such a search, police have some idea of time frame as well as the location within the landfill where disposal of the body took place.

Without such points of reference a search becomes not only meaningless in terms of the probability of success but also prohibitively expensive.

It would appear that at a certain point during the investigation the police service had such points of reference in terms of time frame and location and announced that a search would be conducted. Then apparently new information came to light which muddied the waters.

It’s then that the Winnipeg Police Service took leave of its senses and abandoned all rational thought and adherence to scientific and investigative principles.  Instead of explaining to the victim’s family and the public what they were faced with and calling off the search, they attempted a face-saving exercise based on their “relationship building” credo.  Not being prepared to deal with the victim’s family and tell them that a search was useless they attempted a compromise:  having an aboriginal elder visit the site, conduct a ceremony, and identify an area to be searched.

The subsequent search of a very small area was not a sound operational decision.  The actual search was a token search, an act of going through the motions in the hope that the victim’s family and aboriginal leaders would be mollified.

How insulting.

In the end police searched a very small area, without success.   Upon the conclusion of the token search the victim’s family was not satisfied citing concerns that the elder who identified the search area did not represent the family and that the area identified by the family had not been searched.

We are now left to wonder if the direction of  future homicide investigations conducted by the Winnipeg Police Service will be based on the dictates  of aboriginal elders,  the musings of soothsayers and  fortune tellers or will police be guided by the results of their investigation.

What do police tell the next victim’s family that asks police to undertake a search of a particular area identified by their chosen elder or religious advisor?

Building relationships with the aboriginal and other minority communities is a laudable goal but not one that should be allowed to supersede operational realities and the facts as they present themselves in a homicide case.

My advice to the police service is this: cut your losses, and come clean.  Admit a flawed decision was made.  Avoid creating a precedent that could haunt the Police Service for years to come.

Defending a flawed decision reflects poorly on the organization and damages its credibility.

Graham James Gets Two Years, Could Walk by September

Societies are not  judged  by how they treat the powerful but rather how they treat the most vulnerable, and the manner in which those who abuse and victimize the most vulnerable are dealt with when they are charged and convicted.

Graham James is the poster boy for what is wrong with our criminal justice system.

James was sentenced to two years in custody for repeated sexual assaults committed against Theo Fleury and Todd Holt.   The sentences are concurrent, not consecutive.

What does that mean in terms of when James is eligible to apply for parole and be back out on the street again?

James can apply for day parole in 6 months.  If granted he could hit the streets in  September of 2012.

He is eligible for full parole after serving one-third  of his sentence – if granted that would be in  November 2012.

If James is denied parole he will be eligible for statutory release after having served two-thirds of his sentence – July of 2013.

So that is how we treat those who abuse the vulnerable.

“That’ll teach ’em”.   Or not.  Perhaps more victims will come forward and we can make this an annual event.

On a last note, before the politicians start wringing their hands and bemoaning what happened here they should have a look in the mirror.  They are the only ones with the power to make change.  If they are not prepared to do so,  they should step aside and make room for someone who can, and will,  do the right thing.


UPDATE   February 15 2013

The Manitoba Court of Appeal increased James’ sentence from 2 years to 5 years.

Provincial Fines and How Fine Revenue is Distributed

Have you ever wondered what the fine amounts are for breaches of Provincial Statutes and how the fines are set?

They are set by the province and published in the form of regulations.

The Regulations create ‘fine categories’ and each category has a money amount attached to it.  This simplifies things for Judges when they assess fines.  For example: there are offences under different Provincial Statutes such as the Highway Traffic Act and the Liquor Control Act that fall under the same category for fine purposes. Generally speaking Categories A to F deal with offences committed by individuals while Categories G to J deal with offences committed by business owners or corporations.

Examples of offences in each category

Category A – fail to produce a driver’s licence

Category B – Drive left of dividing line

Category C – Fail to yield right of way

Category D – Disobey a traffic control device

Category E – Have or keep liquor in a vehicle other than authorized

Category F  Drive an unregistered vehicle

Category G – Sell liquor other than authorized (boot legging)

Category H – Transport hazardous waste without a licence

Category I – Fail to report an environmental accident

Category J – Sell, buy, trade or barter the meat of a wild animal

The Province of Manitoba recently published the amended Summary Conviction Act Regulation that lays out fines for offences against Provincial Statutes.  Table 1 (below) shows the 10 offence categories with category A offences being the least serious and Category J offences being the most serious.

The table shows that the actual base fines range between $37.00 for Category A offences all the way up to $1467.00  for Category J offences. That is just the basic fine though.  To that you must add the various surcharges like court costs (45% of the base fine), the Victim Service Surcharge (20% of the base fine), and the Justice Services Surcharge (a flat rate of $50.00 per offence).  Once all the surcharges are added the fines persons convicted must pay are $110.00 for Category A offences and $2470.00 for Category J offences.  The table also shows how the fine revenue is broken down between the Province and the City.  As indicated for the offences with lower fines, the Province takes a bigger cut and as the fines increase the City’s cut increases.

Table 1  Offence Category Table

Offence Category Base Fine Court Costs Victim Services Surcharge Justice Services Surcharge Total City Portion % Provincial Portion %
A 37.00 16.00 8.00 50.00 111.00 35 65
B 55.00 25.00 11.00 50.00 141.00 41 59
C 73.00 33.00 15.00 50.00 171.00 45 55
D 90.00 41.00 19.00 50.00 200.00 48 52
E 110.00 50.00 22.00 50.00 221.00 50 50
F 147.00 66.00 30.00 50.00 293.00 53 47
G 257.00 115.00 52.00 50.00 474.00 57 43
H 367.00 165.00 74.00 50.00 656.00 59 41
I 733.00 330 147.00 50.00 1260.00 62 38
J 1467.00 660.00 294.00 50.00 2470.00

Source:  Table 1 was constructed with information obtained from the Province of Manitoba, and the Winnipeg Police Service.

For clarity and ease of reference the fine amounts are rounded to the nearest dollar and the split between the Province and the City to the nearest %.

Speeding Offences

Unlike other offences the fines for speeding offences are dynamic, i.e. they increase as the speed goes up.  The basic fine for speeding is $7.70 per kilometre over the posted speed limit.  Tickets are not normally issued  until the threshold of 10 KPH over the speed limit is reached.  Speeding offences that are committed in construction zones (when workers are present) are subject to a further $5.00 per kilometre surcharge for a total of $12.70  for each kilometre per hour over the posted speed limit.  Table 2 shows the fine breakdown based on 5 specific speeds.

Table 2  Speeding Offences Table

KPH over limit Base Fine Court Costs Victim Services Surcharge Justice Services Surcharge Total City Portion Provincial Portion %
10 77.00 35.00 16.00 50.00 178.00 43 57
20 154.00 69.00 31.00 50.00 304.00 51 49
40 308.00 139.00 62.00 50.00 559.00 55 45
80 616.00 277.00 124.00 50.00 1067.00 58 42
99 762.00 343.00 153.00 50.00 1308.00 58 42

Source:  information compiled based on information contained in the Manitoba Summary Convictions Act (Regulations)

Note:  All numbers rounded up to nearest dollar/per centage.

Now you know.

School Zone Speed Limits – Part II

The motivation for conducting the poll on school zone speed limits was two-fold.  First,  I was curious as to how many people were of the opinion that  the current speed limit provisions were appropriate and how many felt they should be lowered.  Secondly, I was curious as to how many people would like to see some form of evidence that a change was needed as opposed to simply relying on the opinion of politicians or the police.

The results were as follows:  35% of  respondents had their minds made up and supported the proposed change without the need for any further evidence to support such a move.  On the other end of the spectrum 13% were prepared to leave the limits as they are.  The remaining 52% would like to see data as to the difference in accident rates between Winnipeg and other cities that have a 30KPH limits (30%) or they would like to see evidence that we currently have a problem with speeding and accidents involving children  in school zones (22%).  N=60.

That means that a full 65% of respondents don’t agree with the Chief of Police that it’s a ‘no brainer‘.

Now let me throw a couple of wrinkles into the debate.

The current speed limit in school zones is based on the posted limit on the street where the school is located.  Some schools are located on residential streets where the speed limit is 50KPH.  Others including both middle grade and high schools are located on major thoroughfares such as Portage Avenue, St. Marys Road, Main Street and Pembina Highway where the speed limit is 60 KPH.   Would it be appropriate to reduce speeds by half from 60 to 30 KPH in these streets?

The second wrinkle is the effect of already existing legislation.  Although there are speed limits, Section 95 (3) of the Highway Traffic specifically addresses situations where children are either on or near a roadway.  It says:

Reasonable and prudent speed

95(3)       No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent or in a manner that is not reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing; and, without restricting the generality of the foregoing, no person shall drive a vehicle on a highway at a speed otherwise permitted under this Act where

(a) the presence of a child on or near the highway, whether or not he is in close proximity to the grounds of a school building or a playground, dictates, in the interest of safety, a slower speed or the temporary stopping of a vehicle; or

(b) any factor exists in the face of which failure to reduce that speed, or to stop the vehicle temporarily, constitutes a danger to any person or property visible to the driver.

(source: Manitoba Highway Traffic Act)

What this means is that police already have the authority to ticket drivers in school zones who are driving faster than the existing condition would make it prudent even if they are complying with the posted speed limit.

If speeding in school zones and safety are such a burning issue that the mayor is demanding the province make the amendments to the Highway Traffic Act  right now, then why are  police not enforcing the existing provision of the Highway Traffic Act in the interim?

Could it be that it’s about revenue under the guise of safety?

If the Mayor and the Chief of Police can convince the province to lower the speed limit they can then deploy their mobile revenue generating units (photo radar) and make a killing, at least in the short-term until drivers become accustomed to the new limits, especially in areas where the reduction would be 100% , from 60 to 30 KPH.

Funny that this whole issue should come to the fore when the city is looking at ways to cut budgets (or raise revenues).  I’m sure it’s just a coincidence.

Call me old-fashioned but I side with the province on this one in terms of ‘studying’ the issue before making the decision.

If the data supports the need for such a change I’m certain most Winnipegers would support it.

By the way, where is the data on this issue?  Two possibilities are likely.  The mayor and the chief of police have not asked for it, or they have asked for it but it does not support their position.  Despite the fact that in its strategic plan the Police Service purports to be committed to intelligence led and evidence based policing, there is no evidence such an approach is being implemented in this case.   As one of my colleagues used to say, ‘why confuse the issue with facts’.

How the Law De-Criminalizes Violence in Sport

The fascination with sports is its appeal to our primal instincts.

Most sports fans  experience an adrenalin surge when they watch their heroes, in many cases their alter egos, lay a solid hit on an opponent or land a solid punch.

Professional hockey and professional football leagues are taking steps to address the issue of violence in sport, especially as it relates to blows to the head (read concussions).   Professional sports governing bodies have a vested interest in protecting their franchise players.  The marquis player is what draws paying customers in to stadiums and arenas, but so also does violence.  The key is to develop a balance between violence and the protection of  players in order to be able to appeal to a broad audience.

The whole issue of concussions is not something new to sport.  The governing bodies have been aware of the concussion issue for some time.  In the past, however, especially in hockey, there was an internal on-ice system to protect franchise players.  During Wayne Gretzky’s heyday in Edmonton (1978-1988) it was rare for anyone to take a cheap shot at Number 99 because they knew if they did they would have to deal with (and likely be embarrassed or annihilated by) Number 27,  Dave Semenko.  Many in hockey credit at least a portion of  Gretzky’s success to Semenko.  Some point to the time when Gretzky gave the car he won for being the MVP (Hart Trophy winner) in 1983 to Semenko as recognition that Gretsky understood and appreciated Semenko’s role in his  success.  Semenko’s presence gave Gretsky more room on the ice.   Hockey had its own  so-called on-ice ‘policemen’ who kept order on the ice.  The modern game as it is played today has evolved and there are few if any true ‘policemen’ in  the Semenko mould in today’s NHL.  The consequence of the decline of the on ice policeman is that anyone can and will take a shot at anyone – even the super stars of the game.

When concussions affected  fringe players – the muckers, grinders and fighters – it was generally  viewed as acceptable collateral damage.  Once it started affecting franchise players like hockey’s Sidney Crosby, the sport’s governing bodies sat up and took note.  When stars are laid low the bottom line is in jeopardy, which makes it an issue that needs to be dealt with.

Both the National Hockey League and the National Football League have responded by changing the rules, especially as they relate  to hits to the head,  protection for players in vulnerable or defenceless positions and of course  protection of marquis players.  In football it would be the quarterback and the star receivers; in hockey it is the high scorers and the goalies.

How does all of this relate to policing and public policy?  Violence in sport goes to the core of the cultural value system in our society.  As a society we generally deplore violence on the street but at the same time want to see it on the field of play.  Our sports heroes have become modern-day gladiators.  The law provides the  context and differentiates between activities  (assaults) that take place on the street and those that take place in the arena or on the field of play or in the boxing ring.  In one context the activities are criminal, in another they are not.  It is through the enactment of laws and the public policy that flows from those laws that we attempt to balance and offset two  opposing and contradictory sets of values.

In Canada, were it not for the wording of Section 265 of the Criminal Code, much of the activity we see on the field of play would be criminal.  Assault is defined as “intentionally applying force to another person either  directly or indirectly”.  Can you imagine a football game or a hockey game where no one  applied force to another person?   Who would watch it?  The saving phrase in the legislation that keeps athletes out of the courts is “without the consent of another person”.   Athletes,  because they are deemed to be aware of what is likely to happen on the field of play are deemed to consent to having force applied against them.  Criminal charges are normally only considered in situations where the amount or type of force used goes beyond what would normally be expected in a particular sport.  The case of Todd Bertuzzi, who sucker punched Steve Moore during a  hockey game (March 8 2004) between Vancouver and Colorado comes to mind.  The NHL suspended Bertuzzi for 17 months and he subsequently entered a plea of  guilty to criminal assault charges.

If  boxing regulators, on the other hand, wanted to prevent blows to the head, they might be out of business.  Blows to the body and the head are the essence of boxing.   The after effects of  repeated head shots  (the mainstay of boxing) are most notably demonstrated by Muhammad Ali.  Despite the evidence,  young men (and to a lesser degree young women)  are still going in the ring and sustaining concussions on a daily basis with no end in sight – and it’s perfectly legal.

The Criminal Code also specifically addresses boxing.  Again, without special provisions that blows to the head and body administered in boxing rings would be assaults.  Apart from Section 265, Section 83 of the Criminal Code specifically addresses prize fighting:

“Prize fight” is defined as: “an encounter or fight with fists or hands between two persons who have met for that purpose by previous arrangement made by or for them”.  However, like the assault section,  Section 83 has a saving provision.  Boxing contests between sportsmen, either amateur or professional, under the authority of a duly authorized amateur body or a commission as in the case of professional boxing,  are not deemed to be prize fights so they are legal.  Again, the law makes an exception so as to legalize boxing.

I suppose it all comes down to the old adage ‘just because its legal does not mean its right’.

When it comes to hockey and football we need to get this right.  These games can be played in a highly entertaining manner with less gratuitous violence that still allows the offensive stars to showcase their talents.  In terms of hockey we see it on display at the Olympics and the World Junior Hockey Championships.    It would be a shame if sports fans were deprived of being able to watch the likes of Sidney Crosby put their immense skills on display because of a cheap shot by a goon or less talented player.

The Plight of “I Can’t Speak”

A variation on the Three Wise Monkeys Theme

I was surprised by the number of emails and phone calls  I received after posting the Three Wise Monkeys cartoon yesterday.  Winnipegers are quite willing to guess at the “Who Am I” questions.  There is a high level  of agreement as to who the best candidates are at City Hall for  “I see nothing” and “I hear nothing”.

I also ran across another image that  attempts to answer the question of what causes poor hearing, eye sight and the inability to speak within bureaucracies.  It is very revealing.

On a more serious note (if that is possible), it  caused me to ponder the predicament that “I cannot speak” (aka the city employee),  is in.  The province has whistle blower legislation in the form of The Public Interest Disclosure (Whistle Blower Protection) Act to protect provincial employees who in good faith bring forward instances of wrong doing.  The City of Winnipeg has not enacted similar legislation at the municipal level, essentially leaving city employees who wish to expose possible wrong doing, frankly, exposed.

In July of 2006 the  CAO of the City of Winnipeg approved the Fraud, Theft or Related Irregularities Standard which applies to all civic employees.  This standard was introduced in recognition that fraud, theft and unethical behavior is an issue within municipal administrations.  The Standard requires that an employee who becomes aware of any incidents of fraud or a violation of the code of conduct must report such incidents to their manager or supervisor.  What is missing of course is protection for employees who do so.

In September of 2010 the City of Winnipeg Audit Department issued the  Fraud and Waste Hotline Research Study.

It would appear the impetus for this study was the lack of reporting as required under the City’s Fraud, Theft or Related Irregularities  Standard.  During the first 3 years after the  City introduced the Fraud, Theft or Related Irregularities Standard in 2006, a total of 3 reports were received, 2 in 2007, 1 in 2008 and none in 2009.  The audit report notes that:  None of the reports were in compliance with the administrative Standard as none of the reports were made to a supervisor or manager as directed by the standard. (p.7)

The report indicates that one of the most common forms of fraud within government and public administration are schemes related to corruption (p.5).  The audit report examined the reporting rates in several Canadian cities. Their review showed that between 2007 and 2009 Ottawa averaged 165, Calgary 50 , Edmonton 45,  Winnipeg 3. (p.10)

One important difference between Winnipeg and the other cited cities is that the other cities have instituted a Fraud and Waste Hotline which allows city employees to make their reports anonymously to a third party and not directly to their supervisor or manager.

The audit department concluded:   Some employees hesitate to report information regarding fraud or waste as they do not want to reveal their identity due to fears about potential retaliation for reporting a peer or manager. (p.7).  If employees live in fear of retaliation for reporting a peer or manager, imagine the level of fear that must  exist in terms of reporting a statutory or  elected official.  Another conclusion drawn is that  fraud and waste is  under reported in Winnipeg:   it is likely that a number of possible fraud and waste incidents are going unreported due to the requirements in the City of Winnipeg standard to report to the supervisor with no reference to anonymity. (p.10)

The Audit report  recommended that Winnipeg establish a Fraud and Waste Hotline managed by the Audit Department.

According to the City the process to create a Fraud and Waste Hotline is currently underway.

It is not known at this time if the City will also introduce whistle blower legislation at the same time.  It is difficult to imagine why they would not.  Whistle blower legislation would empower civic employees to be in a position to do the right thing and be protected.  The winners would be the taxpayers and all honest employees, managers, supervisors, officials and politicians.  The losers would be the dishonest ones.  And who can make such a change?  That would be the politicians, our city councillors.  And if they don’t make the change does that mean we should assume they see themselves as having something to lose? (Did I say that out loud?)

Until such time as the City introduces meaningful legislation to protect honest employees who are prepared to put it on the line, “irregularities” will continue to flourish at City Hall and throughout the civic service.  Why?  Because they can.

Homicide and Murder: Is There a Difference?

During the course of the summer and fall I received a number of email requests and personal inquiries  asking for explanations or clarification on  specific sections of the Criminal Code of Canada, legal terminology and police policy issues.  I will be running posts from time to time that address some of those questions brought forward by readers.

Today’s will be the first such post.

Question:  Quite often we hear people using the terms ‘murder’ and ‘homicide’ interchangeably.  Do they mean the same thing?

Answer:  The short answer is no.  The longer answer is this:  according to the Criminal Code of Canada (CCC) “a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being”.   Homicides are categorized as either culpable, meaning blameworthy, or not culpable, meaning not blameworthy.

Non culpable homicide is not an offence.  Examples of non culpable homicide include:  persons acting in self-defence or a police officer using lethal force in a manner prescribed by law.

Culpable homicide is categorized as either murder, manslaughter or infanticide.

The Criminal Code of Canada stipulates four circumstances that constitute culpable homicide.  They are, causing the death of a human being : (a) by means of an unlawful act; (b) by criminal negligence; (c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (d) by wilfully frightening that human being, in the case of a child or sick person.

In order for a person to be charged with murder, manslaughter or infanticide there must first be a homicide, but the homicide must also be culpable or blameworthy.

Homicide that is not culpable is not an offence.