Mike on Crime (16 page)

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 said.

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.”

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 charges 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.