The May 1, 2018 article in the National Post by Adrian Humphreys chronicles the 20-year efforts of the police to validate their belief that Mr. DeMaria is ‘a ‘top mafia boss’ involved in traditional organized crime. What is described in the headline of that article as ‘desperate measures’ by the police, who have resorted to dubious parole violations and deportation proceedings, could also be labeled as an abuse of the corrections and deportation systems.
Decades of close supervision and surveillance of Mr. DeMaria in the community did not result in a single charge of a criminal organization offence or any other crime being laid by the police. However, as a parolee, Mr. DeMaria is particularly vulnerable to having his residual liberties removed and being returned to prison for breaching conditions of his parole. Such revocations, however, still need to comply with Charter-protected procedural fairness and be based on reliable and persuasive information. In Mr. DeMaria’s case, not only were his procedural rights violated but the Parole Board found the reliability and persuasiveness of the information used for the initial parole suspension to be inadequate.
Given his Italian background, his criminal record, his success in business, and his family and friends in the Canadian-Italian community, Mr. DeMaria may well be a victim of ethnic profiling. Police testimony reveals that there is ‘no smoking gun’ linking Mr. DeMaria to traditional organized crime and that their belief in his involvement is largely based on questionable ‘intelligence’ from Italy.
The danger of reliance on such intelligence is well-known. The O’Connor Report studying the Maher Arar tragedy recommended significant reform of Canada’s inadequate information sharing practices. The report specifically referenced the risks posed by ethnic and religious stereotyping. In response, Public Safety Minister Goodale directed the enforcement agencies reporting to him to reduce the risk of mistreating individuals as a result of poor intelligence information.
Prof. Kent Roach, who teaches at the University of Toronto Law School, is a recognized expert on the difference between evidence sufficient for a court to deprive someone of liberty and intelligence which may be based on unproved assumptions and speculation. In his affidavit, Roach notes that “decision-makers in the parole and other administrative contexts should be aware of the danger that intelligence, especially unsourced and conclusory intelligence, may not be reliable”. He cautions that these decision-makers should be wary about the precision, accuracy and reliability of information when it is used to impose adverse legal consequences on people.
The parole revocations and deportation order against Mr. DeMaria, a Canadian permanent resident, are good illustrations of what can go wrong when speculative intelligence reports are taken as legal evidence or reliable and persuasive information.
On April 20, 2009, after 17 years in the community on parole, Mr. DeMaria was apprehended and his parole suspended due to police information indicating a violation of one of his parole conditions. The RCMP-led Combined Forces Special Enforcement Unit provided information on separate dates to justify its allegations, including two videos. Investigation into the information and videos cast doubt on the integrity and quality of the information supplied by the police. The Parole Board found that the allegations presented by the police were “not reliable or persuasive”, and so Mr. DeMaria’s parole was reinstated.
Then, in November 2013, Mr. DeMaria’s parole was again suspended because the police alleged his attendance at two family weddings – which had already been approved by his parole officer — breached a parole condition not to associate with known criminals. In January 2017, the federal court found that the parole board in its 2013 suspension of Mr. DeMaria’s parole had acted improperly and ordered a new hearing. After being in prison for more than three years, the re-hearing of Mr. DeMaria’s case finally determined that the information relating to his breach of parole conditions by attending two family weddings was neither persuasive nor reliable. The Board did find, however, that additional information provided mainly by the police that would be used at an upcoming deportation hearing, showed Mr. DeMaria’s ongoing involvement with organized crime, stock fraud manipulation and money laundering and his parole was once again revoked.
It was not until deportation proceedings against Mr. DeMaria in July 2017 that finally some of the intelligence supporting the parole revocation and proposed deportation was revealed. The lead detective from the Peel Intelligence Unit admitted that there was ‘no smoking gun’ linking Mr. DeMaria to organized crime. He also acknowledged that he had not read the Italian intelligence reports that he cited as the lead reason for his opinion that Mr. DeMaria was a member of organized crime. The strongly-held belief of the police that foreign intelligence identified Mr. DeMaria as a member of organized crime could have misled them into viewing his normal business practices as stock manipulation and money laundering. Certainly no evidence was ever presented that led to charges against Mr. DeMaria on these issues, and independent auditors also found no money laundering.
Mr. DeMaria has now been in prison for almost 5 years and is facing deportation, initially for having attended two weddings pre-approved by his parole officer and now based on flimsy allegations of shady business practices fueled by a foreign intelligence report. No doubt the police are frustrated that their intelligence and 20 years’ investigational work have not yielded sufficient evidence to lay charges against Mr. DeMaria, but this does not prompt them to question the accuracy of their intelligence. Allowing police to use corrections and deportation proceedings to achieve their ends as they have in Mr. DeMaria’s case undermines the integrity and purpose of those proceedings and jeopardizes justice for all people subjected to them. This entire practice needs to be critically examined not just for Mr. DeMaria but for all parolees who might be subject to ‘desperate measures’ by police. The law must always remain an instrument of justice rather than of the state’s purposes, whatever they may be.
The John Howard Society of Canada