Friday, 17 October 2014

THE 'VOIR DIRE' HEARING: Whereas I am no attorney by any means, its not rocket science to figure out something is amiss. (blog 79)

I am not an attorney but common sense would say that there was a failure during this 'Voir Dire hearing'. Minimal time was spent exploring just how deep the cops were 'not credible', nonetheless the judge did rule them 'not credible' but like I said I don't think he went far enough. From the transcripts itself.

15 Ruling (Voir Dire)

22 So here are my reasons on the voir dire, which, of course, was held at the outset of this

23 five-day jury trial and calls on me to decide if certain statements are admissible, either on

24 the basis of voluntariness or alternatively on the basis they do or don’t comply with the

25 Charter right to counsel, or alternatively to that, if they don’t, whether they should

26 nevertheless be admitted under Section 24(2) of the Charter. On the evidence that I heard

27 yesterday, I find the following facts.

36 Constable Folk responded accordingly. He was already on the road, and he managed to

37 get to the, what I’ll call the Harms’ residence, about five minutes after the call came to

38 his attention. He initially dealt with Angel Roberts. He had had previous dealings with

39 Angel as well as with Mr. Harms. Though she was still hysterical, within a couple of

40 minutes Constable Folk was able to glean from her that she alleged her stepfather,

41 Mr. Harms, had threw her down on a bed and molested her by putting his hands down her1 pants.

In constable Folk's notes He stated that he would NOT need back up as he has dealt with the family before. Now if this man wasn't aware of all her other allegations about so many people and the trouble we had with her then why? considering the nature of the call, would he turn down backup?

3 Constable Folk testified, and I accepted, he made some effort to try to understand more

4 fully what she alleged, but didn’t get very far. He, therefore -- I’m sorry. Before he had

5 any contact with Mr. Harms, Samantha Roberts came into the residence. All that she

6 added to the voir dire evidence is that she located Mr. Harms in the basement, told

7 Constable Folk that’s where he was, and that led then Constable Folk to having an

8 encounter with him.

Samantha never testified at this hearing, so why is he saying "all that she added to the voir dire evidence is that ...." Also Samantha wrote a statement that says she was in fact home before constable Folk attended the residence as did Angel and even Folk himself says this in his original report" so if all their statements in abstention from the hearing are not considered to be fact. Why isn't that from their statement considered? How can something so imperative be omitted and the facts changed at trial? And surely then the statement under oath from Folk of:

" 19 A As I’m talking to Angel about this, her mother, Samantha Roberts, came home and

20 walked through the door. Samantha asked what was going on. Angel was still

21 very hysterical and crying, so I explained to Samantha what Angel had told me

22 happened, and then asked Samantha and Angel where Mr. Harms was. And again, it

23 was really hard to get any information other than what I said that Angel had told me

24 she was very hysterical, crying, very upset. Samantha went downstairs and came up

25 and told me that Mr. Harms was downstairs in the basement."

Is indeed proven to be a lie to the courts just minutes into the hearing and indeed Miss young Roberts statements and constable Folk's, agree that her mother was indeed home before Folk attended.

Questions: why was this officers notes which were never made available to the defense, ( at least not the notes we were given) never requested to be submitted into evidence to the courts? How is it that 3 years give or take was he allowed to suddenly appear with 'notes' and rely on them and yet they never became a part of physical evidence, no one but himself viewed them. How do we know they weren't altered , even existed for that matter, he could have been reading blank pages or if they were actual notes there could have been information detrimental to the defense. You would know better than I do but isn't all relative notes to the investigation imperative under the Canadian evidence act?

38 I also agree with the Crown’s position that nothing turns on Constable Folk’s drawing of

39 his side arm as there was no evidence Mr. Harms even saw it nor is there any evidence in

40 the voir dire really that Constable Folk or any of the other investigating officers did

41 anything to threaten Mr. Harms or make any promises or inducements or anything of that1 nature that goes to that aspect of the issue of voluntariness, and in argument very little

2 moment -- there was very little on the, what I’ll call the usual aspect of voluntariness

3 objected to by the defence.


5 Notwithstanding he had grounds for an arrest for something, Constable Folk decided not

6 to arrest Harms at the moment he entered the basement, or even at the moment the gun

7 had been kicked off into the corner or somewhere else in the room. And Harms -- rather,

8 Constable Folk is standing, either he’s sitting down on the couch with Mr. Harms or he’s

9 standing a few feet away from Mr. Harms -- his evidence was a little bit, I found,

10 confusing in that regard. He gave two different, if I can put it this way, stories at

11 different points in his evidence about whether he had further dealings with Mr. Harms

12 while sitting on the couch next to him or standing next to him or close to him.

I find it difficult to understand why exactly the judge did not further question Folk about this clearly he is lying and yet the judge makes no further inquiry about it and yet he too doesn't ask that his notes be sealed into evidence or even raise the question of why these notes aren't a part of the disclosure package as does not my attorney. This is in itself a violation of the Canadian evidence act.

14 In any event, whether he’s standing or sitting, at least by then Constable Folk, it was clear

15 in his own evidence, he had grounds to arrest -- certainly he had detained Mr. Harms. He

16 had grounds to arrest him at least for a gun offence, if not a sexual offence. He did not,

17 of course, provide him with any Charter warnings or the right to silence, right against

18 self-incrimination warnings at that time. He gave as his excuse or reason officer safety.

19 He indicated in his evidence that he did -- he wished not to inflame an already volatile

20 situation. He was in a basement with only one exit. He was alone. He was apprehensive

21 about the existence of a gun. Even though it was off out of reach, I take it that he was

22 concerned that it was still in -- and I don’t intend this to be a pun -- it was still in harm’s

23 way. And I give Constable Folk every benefit of the doubt on those points.

I find this to be purely insulting in nature to believe that"And I give Constable Folk every benefit of the doubt on those points." No police officer would opt out to have a seat on the couch with suspect while an unsecured gun is in the room and then in the same sentence agree that it was because of "officer safety" , if his statement was true did he not put himself in more danger?

25 He also described Mr. Harms as being intoxicated, although not to the extent Mr. Harms,

26 in Constable Folk’s estimation, didn’t know what was going on. And I find on all of the

27 evidence, for what it’s worth, while there was some evidence going to the consumption of

28 alcohol, little evidence, little acceptable, credible evidence going to the extent of how that

29 consumption resulted in actual impairment or intoxication. The evidence, particularly from

30 Constable Folk, at that point in time was of red, glassy eyes, slurred speech, and the

31 presence of a beer can, little else. The only other evidence was that of Constable

32 McDonald, as I recall, where he walked into the room and smelled alcohol on Mr. Harms’

33 breath.

Once again, there is no evidence that I was intoxicated in any way other then hearsay which is an easy tactic for a cop to say " oh and he was drunk" and immediately that escalates the situation towards somehow proving guilt, mitigating factors. Yet there was never a breathalyzer done on myself and any and all video footage of myself either in the booking area, interview room or in cells ( where there was a video camera ) exists, was ever produced in any way to back up these claims. Why does the judge not raise this question? surely he is privy to the disclosure. After being at the station and in handcuffs with a severe back injury ( they took off my back brace) red eyes could and I know were in fact due to my severe pain of being cuffed and not allowed out of them for hours! until as I now know " DNA was to be collected" In fact at the time I could no longer feel my arms at all. They failed to mention that I was crying from the pain too, no wonder how that wasn't misconstrued to an admonition of guilt somehow.

1 backup in the form of Constable Dozois for assistance. In these circumstances then,

2 Constable Folk decided -- at some point, I’m not absolutely sure, he decided to reholster

3 his weapon. I’m inferring from all of these circumstances that took place after he was

4 convinced -- or unless I’ve missed this aspect of the evidence -- after he became

5 convinced that the gun had, in fact -- the handgun that Mr. Harms had been in possession

6 of had been kicked off or thrown off somewhere else into the room, at some point

7 Constable Folk then reholstered his weapon. And he said he did so because he felt that

8 would actually assist him in being able to deal with any unforeseen circumstance. He

9 didn’t want to be tied up with a gun in one hand if he needed to do something to deal

10 with the situation that Mr. Harms presented.

Again, inconceivable that an officer in a room alone with a suspect and an unsecured gun in the room would then holster his weapon as it could be a hindrance should he and I have gotten into it. Have you seen the online training that RCMP go through? If this happened the way Folk states and the judge buys it would go against core training. In fact, training would say that the individual would be ordered at gun point down to the ground until backup arrived, to control the situation. It makes no mention of plopping yourself down on the couch beside the suspect, putting yourself in a vulnerable situation in an attempt to "deescalate" the situation and then ask the suspect an accusatory question of child molestation. After all that wouldn't escalate it right?

"20 In cross-examination defence counsel elicited from Constable Folk the common sense --

21 or asked him the common sense question: If you were trying to diffuse an otherwise

22 volatile situation, why would you then start asking an accused about the thing which

23 presumably had created the volatile situation in the first place, in other words, why would

24 you start questioning him about the alleged sexual offence"

The judge says

It was clearly an inappropriate police response without any justification. The

29 proper police response would have been to continue in good faith to attempt to maintain

30 or diffuse a potentially volatile situation pending backup from Constable Dozois, but to

31 then go on and begin questioning, even in a brief general matter, in the circumstances

32 here is conduct which, as will become more apparent, I find to be objectionable

12 In any event, having reholstered his weapon, having either moved into the room to stand

13 next to Mr. Harms or, indeed, perhaps having sat down next to him on the couch, and

14 having made a conscious decision not to inform him that he was under arrest, or for that

15 matter that he was detained, and for sure not having informed him of any of his

16 constitutional rights or rights against self-incrimination, fatally Constable Folk then

17 decided to question the accused. There is no officer safety basis for his action in deciding

18 to question the accused.

And the judge didn't find it necessary to question Folk on this?

34 Of course, the evidence is that immediately upon being asked the question, What’s going

35 on, Harms responded by stating words to the effect that he stripped her naked, referring

36 presumably to Angel, to teach her a lesson because she’s a whore. That statement, of

37 course, it’s conceded in argument, was in breach of Harms’ Section 10(b) Charter rights.

38 The voluntariness of the statement is not much in issue, but that doesn’t matter in my

39 view because as a matter of concession the statement is clearly inadmissible

Although this was never said by myself it is introduced into evidence all along by an officer who can't seem to get his stories straight and has now somehow become fact that must entertain debate. Either way because of this false fact that led to my arrest has become the first violation of my section 10 (b) rights.

But what struck me was

17 his evidence, Dozois’ evidence, that he then heard Mr. Harms make an admission with

18 regard to the more immediate or the more -- that day’s alleged offence, and it was then

19 Constable Dozois who immediately intervened to arrest Mr. Harms. That is not really

20 even close to what Constable Folk testified to. Folk, of course, testified that it was only

21 in answer to his general question that elicited the remark about stripping her naked, and

22 after that there was nothing else said that -- in the conversation between he and

23 Mr. Harms that went to the day’s events, rather, they were speaking about prior -- a prior

24 context. And, of course, it was Constable Folk’s evidence that while Constable Dozois

25 was present when Constable Folk arrested Mr. Harms that he was only there to assist.

26 Constable Folk was clear that he arrested -- he being Folk -- arrested Harms, handcuffed

27 him, and took him upstairs.


29 I am unable to reconcile the evidence. I found, frankly, Corporal Dozois to be a generally

30 credible officer. I found Constable Folk to have some difficult -- I had difficulties with

31 his credibility, at least in this case.

He finds Dozios " to be a generally
30 credible officer." How is that? even Doizois screws up his testimony and says that he arrested me and then says that Folk did. Dozios testimony is vauge as well and he states "1 Q So when you went in and were directed downstairs, I know you’ve indicated you were

2 acting in a professional manner, so certainly upon seeing two people talking I suspect

3 you just hung back a little?

4 A No. When I went downstairs, I was within a few feet. I walked right up to where

5 they were.


7 Q I apologize. That’s probably awkward on my part in terms of questioning. I guess I

8 meant you didn’t go and immediately insert yourself into their conversation?

9 A No.


11 Q You let them continue their dialogue that they had going on back and forth?

12 A Yes.


14 Q And your evidence today is that you simply don’t remember what they were talking

15 about?

16 A That’s correct.


18 Q Would it be safe to say that they were talking about something related to the

19 investigation?

20 A Yes.


22 Q Or did you -- okay.

23 A Yes.


25 Q So would it be fair to say you don’t remember specifics, but it was clear to you upon

26 arrival that they were talking about this incident?

27 A Yes.


29 Q And it was a back and forth, both of them were stating things, asking questions. It

30 was an exchange between two parties?

31 A It was.


33 Q When you referred to hearing the admission made about the clothing being removed,

34 was that something you elicited or something that was said in between the two of them

35 that you overheard?

36 A That’s what I overheard.


38 Q At that point is when you chose to insert yourself into the investigation?

39 A Yes.


41 Q That’s fair?

1 A Yes.


3 Q So the best we can say is they’re clearly having a discussion about the investigation,

4 that disclosure is made, and then at that point you arrest him?

5 A Yes.

So I guess I am kind of confused, who arrested me? And if he was in a "back up role" why did he or did he not arrest me? He is standing right there, knows of a conversation but doesn't know what was said. Knows it was about the alleged incident at hand but doesn't know what was said. Bingo, selective hearing caught the admonition and he swoops in and did or did not arrest me. This the judge finds to be "generally credible"?

I find on the evidence that at every turn Mr. Harms1 indicated he did wish to speak to a lawyer.

6 Ifind that on the evidence that Mr. Harms did refuse to waive his right when he was

7 asked if that was his preference, and even much later he refused -- in the context of

8 refusing to provide a warned statement, he again asserted that he wished to speak with a

9 lawyer.

Where are those copies of the interview? And how does the judge know that I refused the right to speak with a lawyer?. He is clearly already said that he has issues with Folk's credibility, is this now selective credibility? He's lying here but not there? This makes no sense and to believe this officer at any point after his testimony certainly brings the justice system in disrepute as because of the fact that he seems to be saying he lied then but is telling the truth now ( even though no one seen those notes!) He is believable because he is a police officer?

11 Going back to what occurred at the scene, Constable Folk handcuffed Harms and escorted

12 him to the vehicle where, as I say, Charter rights and a caution was read. I do not accept

13 the implication in Constable Folk’s initial evidence-in-chief that at or near this early point

14 in time he was following Corporal Dozois instruction to keep Harms handcuffed owing to

15 the need to preserve DNA evidence, nor do I accept that immediately after arriving at the

16 detachment, Constable Folk knew or was informed he needed then to keep the handcuffs

17 on, again, to preserve DNA evidence. I find on all of the evidence that Folk only learned

18 of the need to preserve this DNA evidence when he was instructed to do so by Corporal

19 Dozois at around 1907.

Now he doesn't believe another two key points!?

21 It’s worth noting that Corporal Dozois initially testified that he told Constable Folk at the

22 scene he needed to preserve DNA evidence, but when he was pressed on that point in

23 cross-examination, Dozois agreed he could not recall just when he provided these

24 instructions, and that in due course he agreed that those instructions may well have been

25 provided by phone or by radio.

Does the judge still find Dozios "generally credible"? I've never heard of being allowed to change your evidence nor heard that contradictory evidence should then be deemed "credible"

27 The best evidence that I have then is, perhaps ironically, from Constable Folk who, I take

28 it, was referring to a time noted in his notebook when he agreed in cross-examination that

29 he received instructions at 1907 to keep the handcuffs on on account of the need to

30 preserve DNA evidence.

Are you kidding me? Folk is now credible over Dozios? This makes no sense and there is allot of flip flopping here and once again the judge sites "his notes" which were never made a part of disclosure, never provided to the defense and the ones he read from that day were never sealed into evidence! (please see a complete version of Folk's field notes that I was given)

32 There was a lot of confusing evidence given by Constable Folk about when he left the

33 scene and when he arrived at the detachment. His initial evidence, or early -- earliest

34 evidence in the voir dire had him leaving the scene at around 1830 or 1835. He had

35 around five or ten minutes earlier completed his Chartering and cautioning of Mr. Harms.

36 He initially testified he hung around the scene for five or ten minutes, apparently to have

37 some further dealings with Corporal Dozois and apparently to make some notes in his

38 notebook. He said it would have taken him about five minutes to travel from the Harms

39 residence to the RCMP detachment where he would have arrived at around 1835 to 1840.

40 I appreciate that later in his evidence he attempted to change his evidence arriving at the

41 detachment closer to 1850 or 10 to 7, reasoning that he had stayed at the scene for a


1 longer period of time. I don’t consider Constable Folk’s later evidence on these times to

2 be particularly credible. I’m not sure it matters, though, Just how does this not matter??? The judge goes on because whether he delayed at

3 the scene or whether he delayed at the detachment up until 1907 when he received the

4 instructions from Corporal Dozois or whether he delayed a bit at both ends of the

5 spectrum that I have just laid out, the bottom line is that for no valid reason or

6 explanation that’s before me in the voir dire, there was a period of delay of around 35 to

7 40 minutes after Mr. Harms had unequivocally asserted he wished to speak with a lawyer,

8 which, as I say, had occurred by 1824 hours at the latest.10 I have taken into account Constable Folk’s evidence that he decided to wait outside the

11 residence because Corporal Dozois was inside still dealing with the complainant and her

12 mother. That evidence, even taken together with the evidence of Corporal Dozois, makes

13 no sense to me. There is no suggestion that Folk was being brought in to assist Dozois in

14 his dealings with the complainant and her mother. No suggestion that at the scene anyone

15 needed to wait at the scene to secure it. Constable Parker was already on his way for that

16 purpose, having been called in apparently by Corporal Dozois. Constable Folk was

17 clearly the lead investigating officer here, and although he took direction from Corporal

18 Dozois with regard to the -- eventually with regard to the need to preserve the DNA

19 evidence, I don’t accept, frankly, that Corporal Dozois needed to come out onto the

20 curbside to instruct Constable Folk to administer the Charter and cautioning. Folk was

21 unequivocal in his initial evidence that he did that outside in or near the vehicle, and that

22 makes sense to me, that’s what one would expect in an investigation, rather than waiting

23 to be instructed to give those very basic information rights to an accused who was clearly

24 under arrest, handcuffed, and obviously in police custody

Unbelievable! So just who is credible, not credible? who arrested and who didn't? The judges answer quite frankly confuses the hell out of me.

11 Moving on. According to Constable Folk’s evidence -- and I have noted already that he

12 was very much aided in his evidence in the voir dire by referring to his notebook. He

13 seemed to have a difficulty remembering a lot of what occurred here simply by memory

14 and referred back to his notebook on many occasions, and that’s fine, but it’s something

15 that has to be noted. He was, of course, the lead investigator. He, therefore, should have

16 been expected -- I would have expected him to be of all of the members involved in this

17 investigation, Constable Folk’s notebook would have been the most comprehensive, the

18 most thorough. His notebook, then next -- I shouldn’t say next. I haven’t seen the notes

Why did he not then ask to see them, ask why they weren't a part of disclosure?, sealed them into evidence, after all they were given as evidence. The biggest question right out of his own mouth is the judges " I haven't seen the notes"

1 There is some evidence that Mr. Harms was experiencing significant discomfort, if not

2 excruciating pain, while handcuffed with his hands behind his back, some evidence that he

3 had a back condition that was known to the police, and that he was on medication.

Hense the crying , red eyes. You try being cuffed behind your back for hours with a back injury.

10 As was pointed out in argument by defence counsel, it is hard, I find, not to fault

11 Constable Folk, or at least to question his credibility as to what was said and wasn’t said

12 around the impugned statements at 1905 and 1910, when, in the circumstances, Constable

13 Folk not only failed to record the context of these statements, but he also failed to record

14 at least one statement Mr. Harms made which was exculpatory. Constable McDonald, who

15 I found was a straightforward witness Another separate issue we will get into because this guys testimony wasn't anymore appropriate then the others and full of caught lies under oath. The judge goes on. and of course only really peripherally involved in

16 this investigation, he was good enough to record in his notes that an exculpatory statement

17 was made, although he had some difficulty remembering that in examination-in-chief and

18 only did remember it when he was taken to his notes during cross-examination. What? So he finds MC Donald " a straight forward witness" yet he drastically changes his testimony from that in chief to the cross examination by defense.

Constable Mc donald is no more credible then the rest of them and here I will sight the obvious.
 "35 Q So what happens after you go up to make sure Constable Folk is all right?

36 A He’s fine. Then I go back to the main area, get my gear on. Come back and get my

37 radio, then I get instructions from Corporal Dozois. And --


39 Q What -- what instructions did you get from the corporal?

40 A To leave the accused in handcuffs. And -- for now because they’re waiting for -- to

41 collect some evidence from him as well. So at this time a warrant wasn’t feasible1 because the evidence could be lost.


3 Q How did you receive that information from the corporal?

4 A I can’t remember if it was over the radio or if he came in and that’s -- I can’t

5 remember if he came in the office. Because he was away from the office, so I

6 think it came over the radio. Because then I went -- he asked me to go to the front

7 door to let the victim in and then he was coming back into the detachment. So I

8 think it was over the radio that he left the information.

So selectively he doesn't know if Dozios was in the station, or commanded him over radio, to himself or to Folk.

10 Q When you first arrive and hear Constable Folk and Mr. Harms, they are interacting

11 with each other. Could you hear anything that was being said?

12 A Yes, but I don’t -- I didn’t make any notes and I can’t remember what was being said

13 at that time. I know he was kind of argumentive with him, and I remember putting

14 that in my notes, but I didn’t write down what he exactly had said.And I don’t remember exact words is my -- the

20 dilemma that I’m having right now is that I don’t remember what was said.

Straight forward witness huh?
They all know something was said, someone was talking but the only notes are that of alleged damning comments.How convenient for them all.

10 Q During the period of time when you were in the presence of Mr. Harms, and this

11 includes the time when you were taking his -- taking the samples from his fingernails,

12 did you speak to Mr. Harms?

13 A I did, and I think it was just a small conversation. I didn’t write it down because I

14 was trying to concentrate on getting the fingernail clipping and then I wouldn’t have

15 time to make notes, and I made my notes just shortly thereafter and I don’t remember

16 anything standing out.


18 Q In this period of time that you were -- that you at least say some things to Mr. Harms,

19 did he respond back to you?

20 A I would say yes, but I can’t remember what he said.


22 Q And how was Mr. Harms behaving? What was his demeanour and behaviour like

23 during this period of time when his fingernails were being clipped?

24 A I think he was okay. He wasn’t -- I think he just let us do our work there at that

25 time. Like, you could smell the alcohol on his breath. He had red eyes. Like, I

26 knew he had been drinking. But at that time I remember -- I don’t remember having

27 any problems that I can remember with dealing with him at that time.

This is constable MC Donald remember, the "straight forward witness"

And then he says

2 Q How did -- or did Mr. Harms respond when you approached him to cut the nails?

3 And by that, if I can be more specific, was there -- what was his attitude towards you

4 specifically for getting his nails clipped?

5 A I think he was upset. He wanted to know why he needed his fingernails clipped, and

6 Isaid we’re just trying to collect it for DNA evidence at this time. Like I said in

7 my notes, he was argumentive, but I didn’t write down why he was argumentative,

8 what he had said specifically, so. . .

So which is it? so much flip flop testimony.

35 A No, but I’ll -- this is the general handcuffs that were initiated, and I think that’s -- he

36 has big wrists. You can see his hands right now, when he had his hands up right

37 there. So unfortunately we’ve got to secure them too, I mean. . .


39 Q So it would be a snug fit for sure?

40 A Yeah, but I think they were in front.

Have you ever heard of anyone being arrested and cuffed in front? the reason I was in such pain was I was cuffed in back, thus the video's in the department would show if they were ever produced. Also he thinks I was cuffed in front? yet by memory this guy remembers my clothes without referring to notes from a short encounter near three years earlier? Yet this guy is credible 'at times'
In chief he says

37 A I probably mentioned that his nails were probably pretty short because I remember

38 that. I remember that specifically that it was hard to get the nail clippers on there, so

39 I may have said that his hands were groomed -- or were just recently groomed because

40 there was very -- there was not much nail there, or else I’d be digging into the nail

41 bed basically, so. . .

In cross he says

Q Now, you’ve indicated that he was cooperative in terms of getting his fingernails

2 clipped. He let you clip his fingernails?

3 A Yes.


5 Q Now, in noting that you were cutting quite close to the skin, is this something that

6 appeared to be painful for him?

7 A He wasn’t wincing or anything like that that I remember. If he was, I would have

8 made a note of it or whatever.


10 Q Okay.

11 A I know it was close. Like, my nails are close now and I can still cut my nail, but

12 it’s just a small portion of nail that you’re cutting, right. You’re not going to get a

13 big long nail out of it, right.


15 Q So it was difficult in terms of execution, but not necessarily painful?

16 A Yeah. Not that I’m aware of, so. . .


18 Q So one of the things that was told to Mr. Harms, and I just want to make sure I

19 understand this correctly, one of the things that was told to him was that if he let you

20 cut his fingertips -- or not fingertips, fingernails, if you could cut his fingernails that

21 he could be put in the phone room --

22 A Well, once we’re done with collecting the evidence, because at this time right now

23 we’re trying to collect the DNA evidence because we don’t have a chance to write a

24 warrant because that time -- things will dissipate and disappear and become lost. So

25 we’re cutting the fingernails -- and he would have a chance to talk to his lawyer right

26 away after that.


28 Q So it was made clear to him if he was cooperative, he would be able to talk to a

29 lawyer?

30 A It wasn’t necessarily cooperative. It was just that we need to get these samples and31 then he’ll have a chance to talk to a lawyer, so. . .


33 Q So it has nothing to do with being cooperative; it’s simply, follow our direction and

34 then --

35 A We’ll give you a chance -- yeah. It’s not like if you cooperate, we’re going to give

36 this -- make any promises to him. We weren’t that -- it wasn’t that. The way I’m

37 trying to say it is that we are collecting the evidence. After that you’ll have a

38 chance to talk to a lawyer. You’ll have your chance to speak to someone. I guess

39 it’s just the way I’ve worded it.


41 Q Now, you have indicated that if he was wincing or something, you would have written1 that down?

2 A I should have written that down, yes.


4 Q And that would be something that you would write down because it’s important?

5 A Yes.


7 Q So if there was something important that happened during the course of your

8 investigation, you would have written it down?

9 A I should have. I know that we were very busy that night and we had calls coming

10 in, and we had a domestic that was kind of holding while we were getting this done.

11 So unfortunately we were trying to get him dealt with right away so that we could

12 move on to the next thing.


14 Q But certainly if there was something -- even being busy, sir, if there was something

15 like he was hurt or something very material to your investigation happening, you

16 would have made a note of it?

17 A I should have. And sometimes it just slips your mind as well. When you’re making

18 notes right after, you’re trying to get everything down and trying to get on to the next

19 thing, so it does happen where I do miss stuff as well. I am a human being, so. . .

This the judge finds credible? Rather " a straightforward witness"

The judge:

to the conclusion Mr. Harms was at the detachment, handcuffed, for it appears was

31 an hour and a quarter before finally being afforded his right to counsel. Part of that

32 period of time is the fingernail collection process, and I appreciate that in this voir dire no

33 particular objection was taken by the defence that that process wasn’t appropriate or

34 somehow it violated Mr. Harms’ rights.

Why Not?

1 There is some evidence that Mr. Harms was experiencing significant discomfort, if not

2 excruciating pain, while handcuffed with his hands behind his back, some evidence that he

3 had a back condition that was known to the police, and that he was on medication. I’ll

4 come back to that presently.

So once again, even the judge knows that I am cuffed behind my back, and all but Constable Mc Donald ( who the judge finds credible) says in cuffed in front. Yet makes excuse that my nails were so short that he cut into the nail bed, yet I didn't even flinch says he. And can anyone explain how the judge couldn't entertain in his mind just how police are cutting my nails cuffed in back ( agreed by all, even the judge now) accept that differs from MC Donald's version.

Constable McDonald, who

15 I found was a straightforward witness

The Judge:

20 At the end of the day, on the evidence it’s hard not to conclude that nearly from the

21 get-go in this investigation Constable Folk could have cared less about Mr. Harms’ right

22 to counsel or his right to silence. That was obvious as early as the encounter in the

23 basement, the unconstitutionality of which is conceded by the Crown, although not for

24 Section 24(2) purposes. That what I find to be Constable Folk’s cavalier attitude with

25 regard to Mr. Harms’ rights continued at the detachment by virtue of the unexplained

26 delays in facilitating the right to counsel and by taking selective notes of statements the

27 Crown now wants to adduce in evidence against the accused.

So in the end, these notes ( from Folk) could have been blank for all we knew after all they were never sealed into evidence and they were knew notes, not matching that which we were given. Under the Canadian evidence act they should have been sealed into evidence. You see the final comments of the judge about Folk and his careless attitude towards my charter rights but the judge stops short in actually doing his job and as one would think, 'ask a few questions of his own to each officer. After all he is the judge and the whole thing is absurd, with all the flip flopping in testimony one should be cautious you would think. Instead he himself flip flops and sometimes same paragraphs says they are credible, they aren't credible, I believe him in this but in this instance I don't. From the onset the judge begs excusing for his rushed ruling as a 5 day trial was to begin....yet it ended the first day just a mere 3 hours into it or less. You figure it out .
More to come in the next while, a little irrefutable proof of corruption, tampering and malicious prosecution that I really don't think they are going to feel comfortable with. By the way for a complete break down for each officers testimony at the 'voir Dire ' hearing see the individual