Court upholds Ipperwash shooting conviction

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It took barely 10 minutes on Jan. 26 for the nine justices of the Supreme Court of Canada to decide they would not revisit the conviction of the Ontario Provincial Police officer who shot and killed Ipperwash protester Dudley George in September 1995.

"This appeal comes to us as of right," said Chief Justice Beverley McLachlin for the court. "Assuming without deciding that a voir dire should have been held, we all agree that this is a proper case to apply the proviso of Section 686(1)(b)(iii) of the Criminal Code. The appeal is dismissed. Court is adjourned."

And that was the end of it.

The section of the Criminal Code that McLachlin referred to states that the appeal court can dismiss an appeal based on a procedural error if the court is of the opinion that no substantial wrong or miscarriage of justice has occurred.

Lawyer Alan D. Gould, representing OPP Acting Sergeant Kenneth Deane, argued that a trial within a trial - or voir dire - should have been conducted to decide admissibility of evidence that was introduced at trial - the procedural error.

Court records show that, with Ipperwash Provincial Park occupied by a group of First Nations people in early August 1995 in connection with a land claim dispute, a crowd management unit (CMU) of the Ontario Provincial Police's Tactical Response Unit (TRU) was instructed to secure a sand-covered roadway just outside the park.

On the night of Sept. 6, 1995 at approximately 11 p.m., the CMU assembled and walked towards the park. When the CMU approached, people on the roadway retreated into the park. The police retreated, but some of the occupiers came out of the park. The CMU was commanded to rush towards them. During the confrontation, Deane fired three shots at a man who was crouched in front of the sand-covered roadway. This man, Dudley George, subsequently died from the injuries.

The Crown's position at trial was that Deane had fired a spray of bullets randomly towards the park. He testified and denied that he had shot randomly. He said that he had seen muzzle flashes from a sandy berm and fired his rifle at those flashes. He testified he saw a man with a rifle move from the sandy berm and hide down by a ditch. The man aimed his rifle at the police and then Deane fired three bullets at him.

At trial, Judge Hugh Fraser concluded that Deane "concocted" that story and found him guilty of criminal negligence causing death.

Deane was cross-examined with respect to any statements he had made, or did not make, at the time and immediately after the shooting. Each officer had had a walkie-talkie and could relay statements to other Tactical Response Unit members during the confrontations. These communications were monitored by a supervising officer, Sgt. Skinner, located at the OPP's field headquarters. The second stage of communications was during the "fall back" and the third stage was at the field command post site itself, during which Deane testified that he made verbal reports to Sgt. Skinner. No voir dire was held with respect to the statements made during these time periods. During the cross-examination, defence counsel objected to the lack of a voir dire. The trial judge ruled that there was no requirement for a voir dire because the statements were not made to someone in a position to control or influence the judicial proceedings.

After barely an hour of arguments before the Supreme Court, the Justices adjourned to consider their decision and returned after 10 minutes to announce their unanimous decision.

Members of the George family continue with their $7 million wrongful death civil suit and continue to press the Ontario premier to call a public inquiry into the events of that night.

Premier Mike Harris, who has been accused by the family of changing the previous government policy of negotiating with Native rights protesters and introducing violence into the mix, has refused to call an inquiry. Media reports in Ontario suggest that goernment employees have destroyed documents.

Murray Klippenstein, lawyer for members of the George family, said his clients welcomed the Supreme Court's decision.

"It's obviously encouraging for the family and it removes the last possibility of an excuse for the Ontario government to refuse an inquiry - not that there ever legally was an excuse. There's now no reason for the premier not to call an inquiry. The family has always said that if a proper inquiry was held, there'd be no need for the lawsuit and that an inquiry is a better way than a lawsuit," he said.