Wednesday 2 April 2014

WITTNESSES TO A CRIME: Don’t piss them off


Witnesses play an important part in our justice system. Without them, offenders would walk out of the court rooms as free men and women. This is why it is very important that they be treated by the police and the prosecutors as gold. If either of them chooses to treat them shabbily, the gold in their fingers will turn into water and their evidence they want to bring into the courts to prove their cases in the courts would otherwise end up dribbling away.


Years ago, I saw a minor accident and realized who was at fault. I was the only witness so I stayed behind and waited for the police to show up. When a police cruiser finally showed up, I approached the lone constable to tell him what I saw. Before I could finish the sentence in which I was telling him that I had seen that accident, he said to me rather curtly, “Please step away until I have had an opportunity to speak to the drivers.” I said, “But I am already late for an appointment.” He replied angrily, “I don’t want to tell you again.  NOW BACK OFF!” 


I got into my car and as I was about to drive off, the constable approached me and said, “Where are you going?” I told him I am leaving to go my appointment. He replied, “But I need your statement.”  I replied, “What statement?”  He then said, “You said that you saw the accident.” I said in reply, “What accident?  Was there an accident here? He firmly said, “I will trace your car and subpoena you to attend court and you will tell the court what you saw.” I relied angrily, “Listen asshole. I remember nothing now and I will remember nothing by the time I am in court so BACK OFF!” Then I put my car into gear and as I was driving away, I purposely began laughing loud enough so that he could hear me. I am sure he knew that I saw and remembered the accident but he must have later decided not to subpoena the man whom he pissed off.


One of my favorite stories about a witness being pissed off took place many years ago in Toronto. A witness saw an accident taking place and waited for the police to arrive. When they arrived, he approached the constable in charge and offered to tell him what he saw. The constable told him that he would get to him later and that he was to sit in his car until he was asked to speak to the constable. The man returned to his car and drove away.


Unfortunately, the constable didn’t recognize who the man was. He was the newly appointed chief of police who was in civilian clothes. From what I was later was told, the constable during the next day was assigned to a midnight shift for several months patrolling the inside of a cemetery and doing his patrols all by himself.


James Lowry has travelled from Ottawa to Toronto three times to testify as the main witness in an unsafe driving case. Every time, it’s been put off because an OPP officer failed to show.

The large tire flew off the tow truck barreling south on Highway 427, bounced into the northbound collector lanes, and was speeding directly towards James Lowry’s windshield.

It was March 21, 2011, and Lowry, a retired Toronto police officer of 33 years, was driving to Pearson International Airport to pick up his wife from work.

In the split second he had to act, Lowry braked and swerved. There was a “terrible smash” as the tire slammed into the front-right corner of his Mazda Tribute, but Lowry escaped unharmed.

Stunned, he pulled to the side of the road. The Ontario Provincial Police arrived moments later, and the driver of the truck was charged under the Highway Traffic Act for operating an unsafe vehicle.

Lowry had just survived a life-threatening accident, but his judicial nightmare was about to begin—one that threatens to have a chilling effect on witness testimony in Ontario.


In August 2011, five months after the accident, Lowry moved to Ottawa to study law.

That same month, his wife who was still living in the couple’s Toronto home informed him that a subpoena had arrived in the mail, summoning him to testify. The case would be heard at a Toronto courthouse on October 13, 2011.

As a former cop and future lawyer, Lowry felt it was his civic duty to testify. “With my background, I thought there’s no way I could just say ‘Oh, I didn’t know,’” he said.

Lowry rearranged his schedule and travelled the 450 kilometres to Toronto only to have Const. Randy Clarkson, the OPP officer who inspected the tow truck, fail to attend court. The case was put off until spring.

In December 2011, again a subpoena summoning Lowry for an April 23, 2012 court appearance arrived at his Toronto address.

Wanting to be sure his transportation costs would be covered, Lowry wrote a letter to both the provincial prosecutor’s office and the OPP’s investigator on the case, Const. Jean-Michel Valade. In it, he complained that he had not been contacted about convenient dates; when possible, Crown counsel usually make reasonable efforts to respect a witness’s availability, according to a Ministry of the Attorney General official.

“You have set the trial date in the middle of my final examination week. I find it incredulous that no one attempted to contact me, as a victim, to determine my availability for court,” he wrote in a letter to the provincial prosecutor dated January 2, 2012.

One week later, Lowry says an OPP court officer contacted his wife to tell her to disregard the subpoena, saying Lowry did not have to attend. Hours later, Lowry says, Const. Valade then contacted his wife with a contradicting message: there was no money for witness fees, but Lowry still had to attend court.

Dave Woodford, spokesperson for the OPP, said he could not comment on whether Lowry was told he had to attend and wouldn’t be paid, but said it is the Crown that must authorize an out-of-town subpoena, since the ministry would be footing the bill.

In April, Lowry took the train to Toronto. But for the second time, Clarkson did not attend court, prompting yet another rescheduled date.

Upset that he was being made to travel yet again, Lowry said he spoke to Valade in court that day, reminding him he was not living in Toronto, and requested the next subpoena be sent to the Ottawa address he provided.

That summer, Lowry was contacted by phone and told the new date was Feb. 11, 2013. He then spoke to several OPP officers to express frustration that he had not been consulted on the date, especially when he had to travel from Ottawa. Lowry told one officer Mondays and Tuesdays were especially inconvenient, as he had several classes.

Nonetheless, a third subpoena landed in the mailbox at Lowry’s Toronto address in December 2012, and the original court date was kept for that Monday.

When the day came, neither Clarkson nor Valade were in attendance. “It was like a bad dream. I thought, ‘Surely this isn’t happening again,’” Lowry said.

A fourth date was been scheduled for August. Clarkson, meanwhile, had retired. I don’t know what happened then.

Despite three needless trips, Lowry has not been compensated for the approximately $1,000 he has spent on travel. He feels he has been re-victimized by the “incompetence” of the OPP officers involved.

“I would never, ever have done this to a victim, and then to have that happen to me.” he said.


Following the second needless court appearance, Lowry called the OPP to complain. When he was dissatisfied with the response he got from the officer he dealt with, he filed a complaint with the Office of the Independent Police Review Director, which probes incidents involving police that do not involve death or serious injury.

In the grievance he alleged that Clarkson was neglectful for missing the court dates which prompted an internal investigation that found the subpoenas summoning Clarkson were twice mailed to the wrong detachment.

Det. Sgt. Kevin Connor, the OPP’s professional standards officer who investigated the complaint, wrote in his report that Clarkson said he had “never failed to attend court when he was aware that it was his obligation to do so” and kept four calendars tracking court dates.

Connor cleared Clarkson of any wrongdoing for missing the first two court dates because he hadn’t been aware of them in the first place.

Why both Clarkson and Valade missed the third court date last month is not known.

Woodford, the OPP spokesperson, told the Star the OPP could not look into what happened unless a request came from Lowry.

“There’s no investigation ongoing because nothing has come forward to us,” he said. “All he has to do is come in and say he is concerned, he wants to know why no one was in court, and I can guarantee you it will be looked into.

“We’re not going to look into something just because the Toronto Star says look into it,” he said.

Lowry has since said he will issue another complaint to find out what occurred.

Woodford, as well as another OPP officer, said the newly retired Clarkson may now be out of the country. He said retired officers are still subpoenaed to testify, but as civilians.

Attempts to reach Clarkson and Valade directly were not successful. Woodford said individual officers are not compelled to speak to the media because he is the spokesperson.

Questions also remain about how Clarkson’s subpoena was twice sent to the wrong detachment. Lowry, who served with the Toronto police’s traffic division for six years, questions why Valade did not follow-up after the first missed court date; if it had been him, he would have found the absentee officer and asked why he wasn’t there, Lowry said.

But Woodford said it sounded as though Valade had followed the proper process. Once the subpoenas are served, the attendance of the witnesses is the responsibility of the Crown.

It’s also difficult for officers to know the locations of other officers, Woodford added.

“Valade probably wouldn’t even have known that since he had retired,” he said. “All we can do is try and serve the person, just like we do with civilians, and a lot of times we can’t.”


Fed up and wanting to be compensated, Lowry has hired Toronto lawyer Barry Swadron and begun the process of suing the Crown for damages.

Last week, Swadron gave the required 60 days notice in a statement of claim, alleging abuse of power and process, misfeasance in public office, negligent infliction of mental anguish, and more.

“In the course of his involvement as a responsible citizen in (the accident’s) aftermath, (Lowry) has been dealt with by officers of the Crown in a summary, dismissive and abusive manner,” Swadron writes in the claim.

In a separate statement to the Star, Swadron said he worries about the precedent set by failing to compensate Lowry. If witnesses whom the courts rely upon to support the prosecution of offenders are not paid back expenses, there will be a major deterrent to come forward with information, Swadron said.

He is particularly concerned about incidents that occur on highways, where there is a higher likelihood witnesses would be from out of town and thus have to travel.

A system that will not, at the very least, reimburse civilian witnesses for their travel expenses will surely undermine the administration of justice and foster disrespect for the rule of law.

“Would-be Good Samaritans will avoid being good. People witnessing emergencies will be reluctant to call 911. Victims will be further victimized. The innocent will suffer,” he writes.

Sgt. Al Walker in the OPP court office said the Lowry case was brought to the Crown, who then made the decision not to subpoena him at his Ottawa address.

“The Crown would not authorize to pay (Lowry) to come from Ottawa, and he got a subpoena to his address in Toronto where he lives,  he’s just going to school in Ottawa,” Walker said.

Brendan Crawley, the Ministry of the Attorney General spokesperson, said that in general out-of-town Crown witnesses are entitled to payment of approved costs for travel and accommodation, as stated in Ontario’s Administration of Justice Act.

He could not comment on what occurred in Lowry’s case because it is before the courts.

Due to the three needless court dates, the Justice of the Peace has ordered that the Crown must proceed with the case at the next date, Aug. 7.

Though that may sound like good news for Lowry, it could also mean the case will be thrown out if the OPP officers do not attend.

That would be a shame, Lowry said, particularly given the effort the provincial government has made to eradicate incidences of flying tires which included the introduction of stiff new regulations in 1997.

The charge in this case, operating an unsafe vehicle, is not the specific truck wheel-off law that came into effect in that year which is a provision that has decreased the number of reported truck wheel separations from 215 in 1997 to 97 in 2012.

But Lowry still worries about the message that will be sent if the case gets tossed.

“They made a big cry about the truck tires,” he said. “But yet when incidents happen, are they properly funding the system?”


What happened to Lowry shouldn’t have happened at all. It was simply a series of events that can be directly attributed to the stupidity of the Ontario Provincial Police. It was unfortunate that Lowry’s car was damaged but it is even more unfortunate that his belief in the intelligence of the OPP was even more damaged.

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