It is often said the wheels of justice grind slowly, and that is certainly the case with the Winnipeg Police Service headquarters scandal.
In its first budget, the NDP government set aside $500,000 to do some of the spadework for a full-fledged commission of inquiry that will likely take place next year. It will take careful consideration to come up with the right terms of reference of an inquiry given the profound peculiarities of this case.
More than a decade has passed since the city devised a plan to move police headquarters into the renovated former Canada Post building on Graham Avenue. Skyrocketing project costs eventually triggered two audits, two police investigations and — most recently — a damning civil verdict that concluded former chief administrative officer Phil Sheegl had accepted a bribe in exchange for awarding the contract to a firm owned by a business friend.
However, before picking a commissioner and starting work on the terms of reference, the government should take the time to reconsider the need for criminal charges.
It struck many in this city’s legal community as odd that, after five years of investigatory work by the RCMP, Manitoba Justice decided not to lay charges against Sheegl and former Mayor Sam Katz, both of whom were suspects in the police HQ investigation. Those concerns were amplified after a civil case against Sheegl — based in large part on evidence uncovered during the RCMP investigations — found that Sheegl had accepted a $327,000 bribe and shared the proceeds with Katz.
Glenn Joyal, chief justice of the Manitoba Court of King’s Bench, said Sheegl’s actions served as “a breach of trust and a breach of loyalty.” He was ordered to repay the value of the bribe, along with severance and damages, that added up to more than $1 million.
Sheegl appealed the verdict but instead of redemption, he found himself buried under further judicial condemnation.
“The conduct of Sheegl was so serious and so reprehensible that the bounds of rationality could have justified a much higher award of punitive damages than $100,000 to satisfy the need for retribution, deterrence and denunciation in light of the total award and conduct in issue,” wrote Justice Chris Mainella of the Manitoba Court of Appeal. “The integrity of public finances must be protected by the courts from large-scale bribery and the systemic ignorance of fiduciary duties, particularly those involving the most senior public officials.”
Court decisions are often couched in careful language that makes them difficult to fully decode. However, when you look at the commentary from justices Joyal and Mainella, it’s tough to shake the feeling that they, too, felt this matter should have been considered in a criminal context.
It wasn’t the job of either judge to recommend that, nor was it their duty to criticize any decisions made by the RCMP or Manitoba Justice. Still, the language used to describe Sheegl’s actions, and to question the decision not to name Katz as a co-defendant in the civil action, demonstrate the concern both judges had about unanswered questions in this case.
For example, Mainella went so far as to say that given Katz’s conduct in the police HQ case, the absence of a formal legal accusation against the former mayor was “the proverbial elephant in the courtroom.”
Premier Wab Kinew recently said the inquiry, when it finally convenes, will examine the decision not to lay charges against Sheegl and Katz. However, it remains unclear whether the inquiry will reopen the door to criminal charges.
In many instances, commissions of inquiry specifically preclude the testimony and evidence they produce from being used in a criminal prosecution so that individuals are free to testify without fear of self-incrimination.
However, there are instances where criminal consequences are considered. It’s really up to the government of the day to set those terms.
Given all that, a much better approach would be to go out and get an experienced lawyer from another province to review the case material and report back on whether criminal charges are warranted.
Why go out of province? At this point, Manitoba Justice has an enormous conflict of interest on this question.
Memos from the RCMP, uncovered by the NDP while in opposition, confirmed that in 2017, the RCMP not only recommended fraud and forgery charges be laid, but expected the case to go to court. That made Manitoba Justice’s decision the following year not to proceed with charges seem even more suspicious.
In the final analysis, the evidence uncovered by the RCMP either supports criminal charges or it doesn’t. It’s important to remember the burden of proof in civil proceedings — referred to as a “balance of probabilities” — is much less onerous than the “beyond a reasonable doubt” standard in criminal proceedings. Still it is hard to examine the evidence in the civil case, and the extraordinarily strong language used by the trial and appellate judges, and not at least ask the question: why weren’t criminal charges laid?
Getting an independent prosecutor to examine the files will take time, and will likely delay the inquiry, but it’s the only way to truly answer the one question that simply won’t go away.
dan.lett@winnipegfreepress.com
Dan Lett
Columnist
Born and raised in and around Toronto, Dan Lett came to Winnipeg in 1986, less than a year out of journalism school with a lifelong dream to be a newspaper reporter.