Assault victim alleges double standard of justice

The victim of an assault by a drunken off-duty police officer is outraged over what he says is the double standard of justice employed by the Edmonton Police Service and Alberta Justice.

Devin Stacey says Const. Mike Wasylyshen, son of former chief Bob Wasylyshen, received preferential treatment both from police and the Crown in relation to an unprovoked, alcohol-fueled attack in 2005.

Wasylyshen also assaulted a security guard, repeatedly threatened to kill Stacey and a second security guard, and resisted arrest during the incident.

Despite this, Wasylyshen was not immediately charged or jailed. Instead, officers dropped him off at a private residence, CBC has learned.

Edmonton police refuse to explain why his victims were not interviewed until a year after the incident and why charges were not laid for 18 months. The Crown refuses to explain why uttering death threat charges against Wasylsyshen were dropped.

The criminal case took more than three years to go to court and Wasylyshen's disciplinary hearing, held earlier this month, came nearly four and a half years after the incident.

"I was born and raised in Edmonton and I know guys who are police officers there," said Stacey, who now lives in Vancouver. "But I have lost all respect for the Edmonton police. It's absolutely disgusting what happened."

Edmonton defence lawyer Tom Engel has filed more complaints on behalf of clients against police officers than any other lawyer in Alberta.

But he has also defended several police officers. He said if the roles were reversed and an off-duty officer had been attacked, it would have taken hours, not months, for charges to be laid.

"That investigation is going to be over in an hour and all the witnesses would be identified and statements taken and it's over," Engel said. "So it is exceptionally inconsistent but that's not new. That happens all the time when police officers are the suspects."

Stacey believes if he had attacked Wasylyshen, "I'm 100 per cent positive I would be serving some time."

The alleged double standard is not just between police officers and civilians. Edmonton Police Association President Tony Simioni will not comment on specific cases, but he said the EPS disciplinary system treats some officers more leniently than others.

"There are differences and there are discrepancies and I have concerns with that," he said.

The attack

Stacey was on crutches after knee surgery, trying to flag down a cab with one of his crutches on Whyte Avenue at 2:30 a.m. on Dec. 18, 2005 when Wasylyshen began yelling at him.

"It was basically just retard, cripple, … get a job in no specific order," Stacey said. "I would say about 15 minutes of rambling before he came at me."

A court transcript obtained by CBC show Wasylyshen admitted he was heavily intoxicated after leaving a Christmas party at a nearby bar.

He punched Stacey on the side of the head. Wasylyshen was pulled off by two friends but repeatedly broke away to go after Stacey as the two men engaged in a shouting match.

On his cell phone, Stacey called two friends in a nearby bar for help. They got into a fight with Wasylyshen, who was being beaten up.

Death threats

Two security guards at a nearby convenience store intervened. Wasylyshen punched one of the guards in the head and then repeatedly threatened to kill Stacey and a second security guard.

"He was adamant on telling us that he will find out who we are, he will find out who are families were, he will kill us" Stacey said. "He will burn our houses down. He will kill me.

"I definitely took it seriously. I honestly thought he was having a complete mental breakdown."

At least two uniformed police officers arrived to arrest Wasylyshen, who was being held by the security guards. Stacey said the officers threw Wasylyshen up against the wall repeatedly.

"It was a violent arrest," Stacey said. "It was resisting arrest and I think at that point they didn't know who he was. They were rough on him. They threw him in the back of the cop car with authority."

Wasylyshen however, was not detained and charged. Instead, he was dropped off by police at a private residence.

Lawyer Tom Engel said that, based on his experience, if a person is heavily intoxicated, has assaulted two people, and has threatened to kill them, he would be jailed for the night after being read his rights, fingerprinted and photographed.

Stacey and the guards gave statements to police but heard nothing until they were contacted by an EPS professional standards investigator a year later. That's when they first learned Wasylyshen was a police officer.

"I just couldn't believe it when she told me," Stacey said. "I was floored. My jaw dropped."

No complaints

Police subpoenaed Stacey to testify at Wasylyshen's trial. But when he phoned the police witness central unit to get details about when and where he should appear, he was told he was no longer needed because Wasylyshen had pleaded guilty.

"I read the newspaper two days, or a day, after the court proceedings, and it indicated that they said we opted to stay out of the court," Stacey said, "and that we hadn't filed (criminal) complaints."

In sentencing Wasylyshen, the judge also noted there were no criminal complaints or victim-impact statements filed.

Stacey said that on the evening of the attack, he was driven home in a van by three officers, one of whom repeatedly pressed him to file a criminal complaint.

But the officer did not tell him Wasylyshen was a police officer. Stacey said he told the officer he just wanted to go home and that he should call him later.

"A week later I got a phone call from an officer and he asked me if I was still interested in laying charges in the case," Stacey said. "And I said that I was and I just wanted to know how to go about filing that and he assured me that talking to him was actually filing the complaint for the charges."

Stacey and the security guards told CBC that no one from the police informed them of their legal right to file a victim-impact statement.

The judge convicted Wasylyshen on two counts of assault and fined him a total of $500.

Disciplinary hearing discrepancies

Wasylyshen also pleaded guilty at his disciplinary hearing. The prosecuting officer, Derek Cranna, a private lawyer representing Chief Mike Boyd, entered an agreed statement of facts along with Wasylyshen's lawyer.

CBC obtained a copy of that agreed statement and a copy of the transcript from Wasylyshen's criminal trial. The evidence about the version of events differs significantly on some critical points.

In the criminal case, the judge stated, "the aggravating factors are that Wasylyshen was clearly the primary aggressor." In other words, the off-duty officer started the altercation by yelling at Devin Stacey and then attacked him.

But the agreed statement of facts entered into Wasylyshen's disciplinary hearing states that Stacey "directed a comment" to Wasylyshen first, and that statement combined with his waving of his crutch was essentially misinterpreted by Wasylyshen as a challenge.

Stacey strongly denies that version of events. He says he ignored Wasylyshen's insults and taunts for at least five minutes before he finally shouted back.

"It was awful," Stacey said. "It was over and over, he wouldn't stop. I informed him, I said, "I can't fight you. I'm on crutches. I can't give you the fight you're looking for.' "This guy physically assaulted me. He completely started the fight on every level."

Stacey says Wasylyshen repeatedly threatened to kill him. But according to the agreed statement of facts, the officer had made statements "that could have been construed as threats to do bodily harm."

The agreed statement of facts state that Wasylyshen, "made statements to (security guard Brad) Litviak that could have been construed as a threat to damage his property."

But that's not what Litviak said he told police in his statement.

"His words were, 'I want to burn your house down with your family inside of it.' Basically a death threat," Litviak told CBC.

In fact, the judge in the criminal case found Wasylyshen "uttered words that would come across as a threat to burn Brad Litviak's home and family, had the accused been sober."

Litviak said he didn't take the threat seriously at the time. But after he learned Wasylyshen was a police officer, he realized the officer could find him and his family because of his potential access to internal police databases.

Both Crenna and the EPS refuse to explain why Wasylyshen's death threat was portrayed as simply a threat to damage property.

The presiding officer in the case agreed with a joint sentencing submission and Wasylyshen was fined a total of about two-and-a-half weeks pay.

CBC asked lawyer Tom Engel to compare the facts from Wasylyshen's criminal trial to those entered into his internal disciplinary hearing.

"The prosecution in this case, in other words, the Edmonton Police Service, watered down the facts so that they're not as serious as they were," Engel said.

The EPS did that, "so that Constable Wasylyshen wouldn't be punished based on what he actually did, but on some altered version of what he did, a more benign version."

Engel said he has seen this before.

"Frankly I think that what they do is if they really want to go after a police officer, then they do everything they can to make the facts sound as bad as they can," he said.

"But if it's an officer they don't really want to have punished harshly or they don't want dismissed, then the only way they can do it is to water down the facts."