Friday, March 23, 2012

Warden denies Mariam's dad release for funeral

By ,Toronto Sun
First posted: | Updated:

TORONTO - Lela Tabidze will say a final goodbye this weekend to her daughter, Mariam Makhniashvili.

But her husband most likely won’t be at her side when their teenager, whose mysterious disappearance gripped the city for more than two years, is laid to rest.

“I feel for him,” Calvin Barry, Vakhtang Makhniashvili’s lawyer, said Friday.

As a parent himself, Barry said he can only imagine how heartbreaking it must be for the father not to be allowed to attend his daughter’s funeral or to be there to comfort his wife and son during such an emotional time.

Vakhtang is currently serving a six-year prison sentence at Milhaven penitentiary for stabbing three people in two separate incidents in the wake of Mariam’s disappearance.

Barry said he had obtained pre-approval for his client to attend the funeral Saturday, but the warden “nixed” the day-pass Thursday.

“I was kind of surprised and taken aback,” Barry said, explaining it’s not uncommon for prisoners to be released for the day to attend a loved one’s funeral.

Based on psychiatric assessments submitted during Vakhtang’s trial, the warden concluded his release could pose a risk to the public, Barry said.

He is appealing the decision and hoping the warden has a change of heart.

“But we’re running out of time,” Barry said.

Mariam vanished after walking to Forest Hill Collegiate with her younger brother George in September 2009, just a few months after the siblings emigrated from the Republic of Georgia to be reunited with their parents.

The 17-year-old’s disappearance sparked a massive search.

Police confirmed March 9 that human remains found a week earlier on the edge of the Don Valley Golf Course near Yonge St. and Hwy. 401. were Mariam.

It’s believed Mariam fell to her death from an overpass.

Toronto Police have said foul play is not suspected at this time.

Although there was some confusion about whether or not the funeral would be private, Barry said it will be open to the public.

Visitation will be held Friday from 2-4 p.m. at Newbigging Funeral Home, 733 Mt. Pleasant Rd.

Mariam’s funeral will be on Saturday at 1 p.m. at the same location.

Wednesday, March 7, 2012

Special justice for police officers

By Joe Warmington , Toronto Sun
TORONTO - What if the roles were reversed and the guy who was killed by a police officer was the one accused of doing the killing?

Had alleged murder victim Eric Osawe been charged with murdering Const. David Cavanaugh, would the Crown have consented to bail without any time in custody?

Would he have been aided by court staff in dodging media attention in three different court houses?

Would they have taken him in and out of a back door and through a parking garage so no one could see him or get a fresh picture?

Would a suspect be permitted to move in and out of the court with a police escort?

Would it have been a situation where the media were so confused about the time he was scheduled to appear to face his upgraded charge from manslaughter to second-degree murder, they actually missed it?

The hearing was scheduled for 2 p.m. It happened in a much quieter special hearing at 12:45 p.m.

Welcome to the Blue Wall of justice.

It’s a private club where membership has its rewards.

And veteran copper Cavanaugh is a card-carrying member who has in the past not only done his job well as a member of the prestigious Emergency Task Force, was one of the arresting officers in the Jane Creba case.

He’s been a hero who has done the service and city proud.

And now he’s the first Toronto copper ever to be charged with murder while on duty.

Known as a “terrific police officer” by several who have worked with him, Cavanaugh will have his day in court.

Toronto Police recently have had many members before the courts. They range from those facing G20 brutality allegations, to threatening to use a stun gun on a suspect’s genitalia to assaulting homeless people or people in custody. Then there were allegations of internal sexual harassment to an investigation into claims that the head of the RIDE program was impaired at work.

This is all on top of those officers under an internal probe for non-sanctioned selling of $75,000 of memorial T-shirts for slain Sgt. Ryan Russell to hard feelings about mental health patients dying at the hands of police.

But it’s actually police who feel they are being unfairly targeted.

“Our membership and our police officers have, quite frankly, lost faith and confidence in the process and the system, whether it’s the SIU or the Crown’s office who recommended these charges,” said Toronto Police Association President Mike McCormack.

Statistics show, however, that the SIU have cleared 96% of their last 800 investigations in Ontario. In 2011 in Ontario eight officers were charged in 199 investigations.

It’s special justice when police officers are investigated and it’s extra special when they are charged.

Police loathe either.

McCormack called the upgrade to murder “insulting to all the police officers in this city” and “way over the top.”

Time will tell if he’s right— perhaps lots of time since when a police officers faces justice, it’s often justice delayed.

The TPA has deep pockets, paid for by brothers and sisters in arms, to hire top lawyers like Peter Brauti, Calvin Barry, Harry Black or Gary Clewley.

And history has shown cases can take more than a decade to go to trial — with officers being paid the whole time.

If convictions do come about there’s rarely jail time served.

“When a police officer is before the courts they are treated with kid gloves,” said veteran defence lawyer Julian Falconer who represents the family of the 26-year-old allegedly slain man, who was “shot in the back” at an Etobicoke apartment complex in 2010 after a gun seizure project by police.

Falconer said he does not blame Justice Ian Nordheimer who “had this thrown before his bench at last minute” but wonders if court security and administration were facilitating a “double standard” that puts at risk “accountability” and the perception of impartiality.

“This accused should be treated no worse or no better than any accused,” said Falconer. “The administration of justice is supposed to create the impression the are no special deals.”

Certainly the alleged murder victim here, or his two fatherless children, didn’t receive any.

Crown counters Vaive's defence

Joe Fantauzzi|
Feb 22, 2012 - 5:32 PM

On trial. Rick Vaive (centre) checks his cellphone as he leaves the Newmarket courthouse with lawyer Calvin Barry (left) and Vaive's wife, Joyce. Torstar file photo

Former Toronto Maple Leafs great Rick Vaive told different stories to police officers who arrested him for impaired driving and during his court case, the Crown said today.
Mr. Vaive is charged with impaired driving and driving with more than 80 milligrams of alcohol in 100 millilitres of blood after a traffic stop in 2009. He has pleaded not guilty.

After being arrested by York Regional Police in Vaughan July 14, 2009, Mr. Vaive told York officers he had consumed one beer before he got into his truck following a golf game in Gravenhurst, prosecutor Jon Fuller told the court. However, while testifying, Mr. Vaive admitted to drinking six beers, he added.

Also, when questioned by York officers, Mr. Vaive admitted to one rest stop, Mr. Fuller said. But, during the trial, Mr. Vaive testified he had stopped several times, he noted.

Mr. Fuller also argued it is odd Mr. Vaive’s travelling companion, Bill Derlago, testified he did not see a large urine stain on Mr. Vaive’s shorts, which Mr. Vaive testified had appeared after a second rest stop between Gravenhurst and Vaughan.
Mr. Derlago reportedly testified he believed Mr. Vaive was fit to drive.

“It’s noticeable,” Mr. Fuller said of the stain when Mr. Vaive was pulled over by York police. “It’s something that isn’t in dispute that it’s there.”

Mr. Fuller suggested two possibilities: either the stain appeared after Mr. Vaive dropped off Mr. Derlago in Vaughan or Mr. Derlago missed the stain. If the latter is true, the power of Mr. Derlago’s observations during his testimony should be questioned.

Earlier in the day, Mr. Vaive’s lawyer, Calvin Barry, picked through testimony and records of several witnesses and argued to the court his client’s rights, including those protecting the right to contact a lawyer and against an unreasonable search, were violated.

When York police pulled over Mr. Vaive’s vehicle in Vaughan, the former hockey player called a civil lawyer, who said he needed criminal counsel. The civil lawyer told a York officer he would try to reach a criminal lawyer for Mr. Vaive, Mr. Barry said.

The officer did not suspend the impaired driving investigation while that criminal lawyer was being contacted and, instead, began obtaining breath samples from Mr. Vaive, Mr. Barry said.

That was a “shortcut” that violated Mr. Vaive’s right to get proper legal advice, Mr. Barry said.

Thus, the breath samples, which reportedly showed Mr. Vaive’s blood-alcohol level to be nearly double the legal limit, should be excluded and he should be found not guilty, Mr. Barry said.

However, Mr. Fuller took aim at Mr. Barry’s reasoning, arguing that based on a York officer’s testimony, Mr. Vaive never expressed discontent with the legal advice he received.

And Canadian high courts have ruled police are not required to maintain the quality of legal advice received by an accused person once contact with a lawyer is made, Mr. Fuller added.

Besides, Mr. Vaive testified he was aware of the existence of duty counsel but did not want to use that free legal service, he noted.

That was his choice — not a breach of his rights, Mr. Fuller said.

York Regional Police received a call about a suspected impaired driver in the Pine Valley Drive and Hwy. 7 area in Vaughan, July 14, 2009 after a man was spotted getting into a vehicle at a plaza.

The caller saw the vehicle head south on Pine Valley, then west on Hwy. 407, police said.

As the vehicle exited at Hwy. 427, York police stopped it, investigated Mr. Vaive and arrested him.

Mr. Vaive had was returning from a golf game in Gravenhurst.

Fernando Bernardo, who phoned police that day, testified in February he made the call after seeing a man struggling to stand in a parking lot.

When Mr. Bernardo spotted the man in the lot, he thought he may be ill, court heard. But when the man leaned against a pickup truck before climbing behind the wheel, it was clear he wasn’t sick, he testified.

A sentencing date is not yet available.

Police conclude search after human remains found

The police tape has been taken down and the commando post dismantled near Highway 401 and Yonge Street following a grisly discovery Tuesday afternoon.

Forensic tests are underway to try and identify human remains found in a ravine in a wooded area just north of the Don Valley Golf Course's first tee box. Their next step will be to figure out how the person died.

Dental records or DNA samples may be required to positively identify the person. Clothing found with the skeletal remains may also yield some clues.

Police haven't released any information about the gender or age of the person, and it's not known how long the remains had been there.

The homicide squad has been notified and is monitoring the investigation, but police haven't indicated if there is any suspicion of foul play.

When human remains are found, it's a common practice for police to contact families of missing people as a courtesy, according to authorities.

In this case, one of the people police called was Lela Tabidze, the mother of missing teen Mariam Makhniashvili.

Tabidze told CP24 police told her remains had been found, but it's not known who they belong to.

In addition to Makhniashvili's mother, police also contacted Calvin Barry, a lawyer for the teen's father Vakhtang, who is currently serving a six-year prison sentence for stabbing three people in two separate incidents that occurred after the teen's disappearance.

In an interview with CP24 Friday afternoon Barry said he planned to travel to Millhaven Institution in Bath, Ontario to inform his client of the news.

"It's obviously going to cause upset," he said. "It's been very hard for Mr. Makhniashvili. In fact one of the findings by the judge when he was sentenced was that he had some delusional psychological disorders that spawned themselves from his missing daughter and the fact that he thought she was dead."

Barry said he spoke with Tabidze Friday and told her not to jump to any conclusions.

"It is a day by day thing. Other families have been notified about the remains that have been found and there is a lot of forensic testing that need to happen," he said. "Hopefully we will have a conclusion soon."

Police placed similar courtesy calls to the Makhniashvili family after previous discoveries of human remains, which turned out to be people other than their daughter, who was 17 when she disappeared in September 2009.

With files from CP24's Sue Sgambati, Katie Simpson and Cam Woolley

@ChrisKitching is on Twitter. Don't forget, for instant breaking news, follow @CP24 on Twitter.

Friday, March 2, 2012