The Black Rod Driskell Inquiry Report
We thought we knew what to expect from the Driskell Inquiry Report.
The Sophonow Inquiry blazed the trail for these modern-day Manitoba show trials. In the tried and true manner of Uncle Joe Stalin, you get the verdict first, then you bend, shape and twist the evidence at the public inquiry to fit the predetermined conclusion.
But even we couldn't predict the depths to which the Driskell Inquiry would stoop to achieve its purposes.
At its core, the Driskell Report is a chronicle of honourable men doing their best to ensure a man charged with murder gets a fair trial, while the justice system protects witnesses from intimidation and retaliation.
For their troubles, these men had to watch the Driskell Inquiry put their efforts through a perverted prism which turned the world upside down, good into bad, right into wrong, white into black.
Inquiry commissioner Patrick Lesage summed up the whole exercise in one sentence:
"Failure to disclose information to Driskell is the central issue of this Inquiry."
Since that seems rather broad, allow us to translate:
" Because the Winnipeg police and Manitoba Crown attorneys failed to give Greg Brodsky, James Driskell's lawyer, documentation that the RCMP in Saskatchewan were investigating Ray Zanidean for arson, he couldn't destroy Zanidean's credibility at Driskell's trial and couldn't keep Driskell from being convicted of the murder of Perry Harder."
Now look at the facts:
* Brodsky knew Zanidean was responsible for an arson. His client, James Driskell, told him all about it. Driskell helped Zanidean commit the arson.
* Brodsky knew Zanidean had a lawyer. He visited him, but his visit only managed to convince Zanidean even more that Driskell was trying to find him to have him killed.
*Brodsky mistakenly assumed that the lawyer was negotiating immunity for Zanidean on arson charges. He was puzzled when prosecutors ( truthfully) told him there were no outstanding charges facing Zanidean.
*When he learned that RCMP in Saskatchewan didn't have the evidence needed to file charges, he filled the gap. His client, James Driskell, would testify against Zanidean (provided he got immunity himself). To hasten the charges, he told Saskatchewan RCMP that it would look like a cover-up if they failed to charge Zanidean.
What he didn't count on was that higher-ups in the RCMP recognized what he was doing.
They could see that Driskell was an unreliable witness, having a strong motive to lie (avoiding a life sentence for murder). And that if Driskell was acquitted, all he had to do was recant his statement to police and make Zanidean an available target for retaliation. So they decided to wait until after Driskell's trial before taking any action.
From the Report:
Brodsky characterized this as "awful news", since he had hoped Driskell's statement would lead to Zanidean being investigated and charged with the Swift Current arson before the end of Driskell's trial,which would give Brodsky additional ammunition to use when attackingZanidean's credibility.
It wasn't disclosure that Brodsky needed, and wanted. It was paper.
He wanted police notes, a letter from the Crown outlining the negotiations with Zanidean, a criminal charge ---anything he could wave in the jury's face, without having to call witnesses for the defence. Which he had the power to do and which Commissioner Lesage conveniently fails to address in his final report.
You don't have to search long to see just how slender the "disclosure" reed is. To reach his conclusions, Commissioner Lesage had to take the Orwellian step of redefining the English language. We didn't see that one coming.
Lesaage: (emphasis ours)
" Although the term "immunity" was used frequently at the Inquiry,when I refer to immunity, I use it in its most generic sense, simply to mean an arrangement struck that results in a person being given favourable consideration concerning criminal conduct. "
In short, "if Zanidean wasn't charged with arson I'm blaming the Winnipeg police and Manitoba Crown attorneys and calling whatever they did 'immunity'."
Lesage obviously realized he needed some basis for ignoring evidence as strong as this:
In his response on April 28, 1993, Quinney (the Saskatchewan director of prosecutions - ed.) confirmed that there had been no immunity discussions between Manitoba and Saskatchewan Justice, and advised that Saskatchewan Justice had never granted Zanidean immunity from prosecution.
You see, this is part and parcel of the Manitoba Inquiry model.
- You start with the conclusion that the accused was wrongfully convicted.
- Then you eliminate all the evidence against him.
- You're left having to find someone to blame. And that can only be the police and the prosecutors.
-Then you have to find a fault in the prosecution, even if you have to twist the truth to make it fit. In this case, disclosure about immunity.
You can see why Lesage had to redefine the word. Driskell's defence had all the information they needed (except on paper) and even used it at the trial. Brodsky raised the question about immunity and Zanidean's motive SEVEN times.
1. Q: What do you know about a fire in Swift Current?
A: I know about a fire in Swift Current.
Q: I'm suggesting to you, so there's no misunderstanding, that you set a fire in Swift Current.
A: Yes, I did.
Q: To collect insurance money? [ONE]
A: Not to collect insurance money.
Q: For what purpose?
A: I had a vendetta against my sister.
2. Q: And the police found out about that?
A: Yes, they did.
Q: And you're not charged?
A: Not yet.
Q: Not yet? Does it depend on how you do in court today?
A: No. What they told me was they give the Swift Current R.C.M.P. the information I give them, and that was it. Then I talked to my lawyer.
Q: You talked to your lawyer?
Q: About making a deal to avoid being charged in Swift Current? [ TWO ]
A: No, that's not what I said. What I did is I phoned my lawyer up and I said I've got to meet you, I got myself in a jam in Swift Current, I told the police about it. He said, 'What did the police say ?'
I said, 'The police told me that they have to contact the Swift Current R.C.M.P.'
3. Q: I'm suggesting to you that the whole purpose ofyour trying to implicate Jim Driskell in a murder is to keep yourself out of jail on the Swift Current fire; what do you say to that? [ THREE ]
A: I say that's not true. If I did it just to get myself out of jail, that's, then I did the wrong thing, because I have lost a fortune - for me it's a fortune- since this started. I've had to move out of my house; my garage got burnt; my house got broken into.
4. Q: That is, Jim knew you burnt the house down?
A: Jim was with me.
Q: That's how he knew?
Q: And he could be a witness against you?
Q: Not very much of a witness now, now that you're pointing a finger at him; would that be fair? [ FOUR ]
A: I don't know.
Q: Isn't that the reason you're testifying today? [ FIVE ]
A: I told you that wasn't the reason already, but I'll tell you again: No, that is not the reason.
5. Q: And you have no other explanation why you're not being charged with the Swift Current fire? [ SIX ]
A: The reason I haven't been charged is they have no evidence except what I told the city police. And they told the R.C.M.P.; it's a matter of getting the evidence now and charging me. That's what I'm assuming.
6. Q: That's to your advantage, isn't it?
A: No, it isn't. Because now the Swift Current police know about it, they know where I am, it's a - what I'm thinking, it's a matter of them gathering the evidence now because I think they need more than what I told the police, then they come and arrest me.
Q: Mr. Zanidean, would I not be fair in suggesting to you that you could not have a better advocate for your cause, that is, to keep you out of jail, then the Winnipeg Police; that you wanted the Winnipeg Police to help you out with the R.C.M.P. police in Swift Current? [ SEVEN ]
A: I wanted them to, but they said they couldn't.
The jury had no doubt that Driskell was claiming that the chief witness against him had a deal to testify in exchange for arson charges to disappear. They heard Brodsky make the charge SEVEN times.
And they still found Driskell guilty beyond a reasonable doubt.
And on the evidence that Lesage wants ignored.
He never explains in his final report that in the criminal justice system, the jury is the final trier of facts.
Jury members can believe all of what a witness says, some of what a witness says, or none of what a witness says. Obviously they believed enough of what Zanidean said to deliver a clear verdict.
Guilty of Murder.
In the Nineties, Canada and the United States were convulsed by a rash of trials of daycare operators who were accused of satanic child abuse. Dozens of people were convicted and sentenced to prison for conducting bizarre sex rituals with children in their care.
A decade later, nobody involved in these modern-day witch trials wants to talk about it. The "experts" on child behaviour, the police specializing in Satanic cults, the prosecutors who built the cases are still trying to explain what went wrong when they condemned the innocent in trial after trial.
Someday in the future, Manitoba show-trials like the Driskell Inquiry will be exposed as well.
And there won't be room enough on the prairie to corral all the shame the lawyers and the reporters who went along with the fraud will feel.