Railroaded – A Spectator True Crime Exclusive / By Steve Buist
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It’s been 16 years since the Project No Show report was completed and, for 16 years, the full report has been kept from the public.
Shortly after the OPP’s press statement was released in 1998, The Spectator and Ontario’s Criminal Lawyers’ Association submitted freedom of information (FOI) requests to Ontario’s Ministry of Community Safety and Correctional Services seeking access to the OPP’s 318-page report.
“I was struck by this massive inconsistency between what Justice Glithero said and what the OPP were claiming, and I felt it deserved some examination as to how that could be,” Alan Gold said in a recent interview.
Gold was president of the Criminal Lawyers’ Association from 1997 to 2001, when the fight for access to the OPP report first started.
“It certainly gave an appearance of the police either improperly exonerating themselves or Justice Glithero being massively wrong,” Gold said.
“Quite frankly, we found the latter theory a little hard to accept given what we knew about him and his reputation.
“Justice Glithero is not a jurist who jumps the gun,” Gold said. “We were dealing with an extremely reputable, careful jurist who would not say these things unless the evidence compelled him to say them.
“For the OPP then to issue a report saying, ‘No, no, we investigated and all is well,’ it wasn’t something we could let go.”
In November 1998, the ministry refused to release the report, stating that exemptions in the FOI act for solicitor-client privilege and law-enforcement privilege covered all the material.
The decision was appealed to Ontario’s Information and Privacy Commissioner (IPC). The IPC upheld the ministry’s decision.
From there, the fight moved into the courts.
In 2004, a Divisional Court judge upheld the decisions of the ministry and the IPC. But in 2007, Ontario’s Court of Appeal overturned the ruling, saying there can be instances where public interest can override some of the exemptions that are applied to keep information private.
The ministry, in turn, appealed that decision to the Supreme Court of Canada.
In 2010, the Supreme Court offered a mixed decision.
The highest court ruled that access to government documents is not necessarily a constitutional right and that exemptions made because of solicitor-client privilege should be considered virtually sacrosanct.
But the court did instruct the IPC to reconsider if the public interest provision could allow for the release of some parts of the report because of the exemption related to law enforcement activities.
In December 2011, the ministry released a small amount of the report. In July 2013, the IPC ordered the ministry to try again. In October 2013, some additional portions of the OPP report were released.
In March, the IPC once again ordered the ministry to take another run at releasing more of the document.
The IPC’s decision at that time stated the ministry’s reasoning for keeping portions of the OPP report secret was “flawed.”
“This is not a typical investigation in which evidence was gathered from members of the general public,” the IPC ruled. “Unlike the general public, police officers and Crown attorneys may, and in many cases do, have an obligation to co-operate with internal investigations into police/Crown conduct.”
The IPC stated the ministry had withheld interviews simply because the interview subjects didn’t want the information released.
“The ministry continues to redact and withhold interviews ‘in accordance with their wishes,’” the IPC wrote.
“One police official’s interview was withheld in full, after he refused to consent to its disclosure. He explained that he would not consent to releasing his interview because the disclosure could potentially result in criticism of other police officials involved in the murder investigation.
“Refusing to disclose the interview, on the basis of that police official’s wishes, cannot be a proper exercise of discretion,” the IPC added.
The IPC also noted there was a compelling public interest to find out why no criminal charges flowed from the serious misconduct outlined by Glithero.
“Neither the OPP nor the ministry has offered a public explanation for the disconnect between the results of the OPP investigation and the findings of Justice Glithero,” the IPC ruled.
In May, the ministry released a further 110 pages of the OPP report. Altogether, about 70 per cent of the pages have now been released, although some sections of those pages have still been blacked out from view.
The ministry has even blacked out the name of the manufacturer of the audio recording equipment used in the doughnut shop.
Independent of the FOI process, The Spectator has obtained a full, unredacted version of the Project No Show report.
On Sept. 25, the IPC issued a final order after 16 years, essentially throwing up its hands in frustration and walking away from the fight.
The IPC has closed the file, admitting there’s nothing more it can do to force the ministry to comply with its rulings.
For the third time, the IPC has declared the ministry has not properly exercised its discretion in releasing the contents of the OPP report.
“In all three of its revised decisions purporting to reflect a re-exercise of discretion, the ministry has failed to properly consider relevant factors and has taken into account irrelevant considerations,” acting IPC commissioner Brian Beamish ruled.
Stunningly, the IPC says there is no legal remedy it can employ to force disclosure by the ministry, which continues to ignore the IPC’s instructions.
It’s perhaps the most shocking example in Ontario exposing the toothlessness of the legislation governing the ability of people to access their government’s information.
“I find it would serve no useful purpose to return this matter to the ministry for a further re-exercise of discretion based on principles the ministry has chosen to disregard,” Beamish ruled.
“As I have no other recourse to address the ministry’s improper exercise of discretion, I will close these appeal files without making further orders to the ministry.”
Jessica Orkin, one of the lawyers representing the Criminal Lawyers’ Association in this case, called the IPC’s ruling “astounding.”
“It’s a frank acknowledgement by the IPC that their orders are not being followed,” Orkin added.
That’s just one of several issues that have left Orkin and her association frustrated.
“The real scandal here is that this investigation doesn’t indicate any desire to figure out what happened,” Orkin said.
“It’s not a particularly probing investigation on any of the issues.
“You don’t go in thinking there’s nothing here to investigate,” she added.
“Maybe what happened wasn’t criminal. But that doesn’t mean it wasn’t worth fixing or understanding.”
The Criminal Lawyers’ Association has decided to once again head back to court to seek a judicial review of the IPC’s final order.
Ontario’s Ministry of Community Safety and Correctional Services indicated it will not discuss the Project No Show report or the 16-year fight to access the document.
“As the matter is once again before the courts, it would be inappropriate to comment further,” a ministry spokesperson responded.
The ministry then suggested The Spectator contact the OPP for information about Project No Show.
The OPP did not respond to repeated interview requests over a three-week period.
It’s been 31 years since a mobster with five bullet holes in his body was found dead on a railway track in Milton.
We’re no closer to knowing who really killed Domenic Racco, no closer to knowing why two men were railroaded for his murder and certainly no closer to knowing why the police and Crown haven’t been held accountable for the egregious conduct that sent those two men to jail.
That makes both Graham Court and Dennis Monaghan angry.
From the time he was arrested in December 1989 until he was finally freed on bail in the midst of his second trial, Monaghan spent seven years in prison.
Those were not benign years.
During that time, Monaghan saw one of his best friends at Collins Bay die of an overdose and he himself became addicted to heroin while inside.
“I started to give up, to give up hope,” said Monaghan. “Why not do heroin? Why not do Valium? Why not do everything and just numb myself out?”
For years, the only way he could see his two older sons was during trailer visits at Collins Bay.
“One of my sons some 20-plus years ago sent me a letter and put it all into perspective for me,” Monaghan said. “He said, ‘Dad, even though you may be in there for a long time, at least we get to come and see you.’
“He was absolutely, unequivocally right. You can take my body but not my spirit.”
Seventeen years ago, Court was put on a plane destined for London’s Heathrow Airport. He has not been allowed back to Canada since.
His wife, Teresa, decided to accompany him to England when he was deported. She has remained there with him ever since.
They left behind a son, 19 at the time, and the couple now has two grandchildren.
“The separation from my family … has destroyed both myself and my wife,” said Court.
“It has left my wife with the ongoing turmoil of questioning her decision to leave her family and life back in Canada.
“We have had to build and maintain relationships with our family and friends using the phone and video chats and have had to use all of our savings to pay for my wife to return home annually to be able to spend quality time with our grandchildren and her parents.”
“I am left with the guilt of not being able to be there for my son and his family to assist with the regular fatherly and grandfatherly duties and pick them up in difficult times,” Court added.
“I will be forever torn knowing that my wife made this sacrifice for me and knowing that if I had made better choices in the early years, we would never have had to deal with this separation.”
Monaghan has read the parts of the OPP report that have been released and he’s written down a few thoughts that have been swirling inside him since he was set free 17 years ago.
Before he starts, he quotes Lord Acton’s famous line — “Power tends to corrupt and absolute power corrupts absolutely” — then he opens a binder and begins reading aloud his reaction from a handwritten piece of paper.
“With the power entrusted to (Paul) Stunt by the courts, the citizens and the country, he (could have destroyed) my life by stripping me of any hope of creating a better future,” Monaghan said. “For what? It really doesn’t matter.
“What matters is that it wasn’t for the truth,” said Monaghan.
“As a representative of the town of Milton, the province of Ontario and the country of Canada, his actions are an embarrassment collectively and a slap in the face of all the above and a stain on the annals of history forever.
“I thank my God first and foremost for opening the doors for me and for giving men a free will, to exercise it toward God or toward their own egos.”
This Nov. 29 will mark the 25th anniversary of the night Monaghan uttered those fateful seven words that sent him to jail — “Yeah, but the thing is, he’s right.”
In those 25 years, neither Court nor Monaghan has received an apology for what happened to them or even a satisfactory explanation for why it happened.
“Nor do I care to receive one,” said Court.
“The only difference that can be made in my life at this point in time is to clear my name to assist with lifting the deportation order so that I can come to back to Canada to see my family.”
Monaghan is a bit more philosophical.
“The justice system, well, it sort of worked,” said Monaghan.
“I’m out. But I wasn’t acquitted, the charges were stayed.
“They can still try to say I did it.
“I would like an apology, though I would question the sincerity of it, especially if I had to ask for it,” Monaghan said. “I can’t say it would make much of a difference after all the damage has been done — and it is irreversible.
“I don’t know what people will think after reading the story,” he added. “I do know that I lived the story and I still live it today.
“This can happen to any Joe Blow or Jane Doe in the country if our police agencies are not made to be transparent.
“Why should they have a problem with transparency?” Monaghan asked.
“For God’s sake, they are here to serve and protect and to find the truth.”