TORONTO – Accusations of high-level political interference, petty vindictiveness and tarnished reputations will be on public display this week as Ontario’s top cop heads to court to force an adjudicator he accuses of bias to step down from a police disciplinary hearing.
The Divisional Court case Thursday that has entangled Ontario Provincial Police Commissioner Julian Fantino comes years after an act of domestic violence that, at most, would have been a media footnote.
Instead, a years-long process was set in motion that has raised troubling questions about the politics of justice in Ontario.
A dust storm of allegations – witness tampering, personal reprisals, professional wrongdoing, legal chess games and judicial intimidation and judicial bias – still swirls.
Court files and hearing documents show it all began when a frightened Susan Cole called 911 one evening in April 2004.
She said her estranged husband, provincial police Const. Robert Alaire, had taken a baseball bat to her car at their home in Gananoque, Ont.
Det.-Sgt. Mark Zulinski and other officers responded. They asked her to leave her home. They did not arrest Alaire.
Cole complained. Her husband, she said, should have been arrested.
“It should have been a slam dunk,” Cole said in an interview. “(Instead) it’s a nightmare. It’s just not right.”
Cole’s complaint reached the civilian agency that oversees the province’s police. It asked for an investigation.
Two senior officers in the Ontario Provincial Police’s professional standards bureau – Supt. Ken MacDonald and Insp. Alison Jevons – eventually concluded proper procedure had not been followed.
They recommended “education” rather than sanctions.
The union that represents provincial police officers was outraged.
“We may have the ammo to take down MacDonald,” the union’s lawyer, Gavin May, wrote in an email to Karl Walsh, the president of the Ontario Provincial Police Association, in August 2006.
“We may get two for the price of one.”
The association formally complained about the two officers two weeks later. The complaint landed on the desk of Ontario’s top cop – freshly appointed Commissioner Julian Fantino.
Fantino was also dealing with fallout from his plans to restructure the 6,000-member police force he now headed. Someone was leaking the plans to town council in Caledon, northwest of Toronto, and some local politicians didn’t like what they were hearing.
Fantino concluded the leak must have come from MacDonald, witnesses testified.
In a parking lot on March 1, 2007, Fantino said to another senior officer: “Will you execute the disloyal one, or should I?”
Fantino later explained the comment as humour, or “appropriate” police speak, a way of saying he wanted the leak stopped and an end to the distractions it was causing.
What he didn’t know was that Chief Supt. Bill Grodzinski made notes of the conversation.
Fantino charged MacDonald and Jevons, both of whom he transferred out of the professional standards unit without speaking to them or their supervisors, under the Police Services Act.
The two officers stood accused of misconduct and deceit related to their investigation of the response to Cole’s 911 call.
Any suggestion he laid the charges to appease the police union or to get back at MacDonald for the leak were “hysterical nonsense,” Fantino has said.
The first two associates Fantino appointed to preside over the hearing against MacDonald and Jevons both stepped down over issues of potential bias.
Months passed before Leonard Montgomery, a retired Superior Court justice with 33 years on the bench, would step into the increasingly mucky swamp as adjudicator.
Called to testify, Grodzinski produced his notes, including those of Fantino asking about executing the “disloyal one.”
The next morning, the officer found out he was being transferred.
Fantino later said he thought he was doing Grodzinski a favour, although he expressed disdain about the “cheat notes.”
“People who know me do not hold onto these notes for later retribution,” he said.
Grodzinski was blunt.
“I viewed the transfer . . . as an immediate punishment, sanction, reprisal – use what word you wish,” Grodzinski said.
Intervention from Deb Newman, deputy minister with the Ministry of Community Safety and Correctional Services, undid the forced transfer.
Julian Falconer, acting for Jevons and MacDonald, denounces the transfer threat as nothing short of witness tampering.
The hearings against MacDonald and Jevons proceeded amid increasing acrimony between the prosecution led by Brian Gover, a well regarded, experienced former Crown lawyer acting for Fantino, and the defence.
The defence argued to have the case thrown out as an abuse of process.
During hearings in October in which Fantino insulted Falconer and tensions ran high, Fantino changed some of his testimony. The notion that someone had tipped him off during a lunch break led Montgomery to remark that he was “upset.”
Gover filed a motion – Fantino was in the middle of being cross-examined – asking Montgomery to step down as biased.
He would take the matter to court if Montgomery refused, Gover said, adding the attorney general backed his position.
Within a few hours, the ministry disavowed any such backing and said Attorney General Chris Bentley had not been involved.
A stunned Montgomery branded Gover’s comments as attempted judicial intimidation and refused to step down.
If the ministry had indeed said it wanted him off the case, the political interference was astounding and the conflicts of interest “endless,” Montgomery wrote.
Gover remained adamant the attorney general wanted Montgomery gone and had pledged its support.
Falconer, in the interim, demanded his interrupted cross-examination of Fantino go ahead. Fantino’s new lawyer, Tom Curry, asked Divisional Court to stay the proceedings until the recusal motion was decided.
The court refused to interfere. Montgomery was perhaps just “calling a spade a spade,” the judge said.
Fantino appealed.
A three-judge panel split in his favour, staying his cross-examination until after the recusal motion is dealt with on Thursday.
In the interim, MacDonald and Jevons sit quietly through hours of hearings, seemingly no closer to having their case decided.
Cole, who said the two officers were the only ones who ever helped her, said she was dumbfounded at what her complaint unleashed almost five years ago.
All she ever wanted, she said, was for provincial police to implement a sensible policy when officers are involved in domestic violence.
“It’s gone on to actually hurt some really good people. Like it’s just endless.”
