JUSTICE

Can police protect a witness?

An informant claims that the RCMP left him out in the cold

JOE CHIDLEY August 7 1995
JUSTICE

Can police protect a witness?

An informant claims that the RCMP left him out in the cold

JOE CHIDLEY August 7 1995

Can police protect a witness?

JUSTICE

An informant claims that the RCMP left him out in the cold

JOE CHIDLEY

One afternoon in the summer of 1993, Michael Simmons was driving along a lonesome stretch of highway when he saw a pack of six or seven bikers approaching him from behind, the headlights of their Harley-Davidson motorcycles blazing. As the gang roared their cycles past his truck, one of the bikes backfired. Shaken, Simmons pulled the truck over to the side of the road. “I had to get out and lay down,” he recalls, his voice quavering. “I couldn’t control myself. I wasn’t shaking—it was more than that. Surging. Almost convulsing.” In anybody else, that might seem an overreaction. But the 38-yearold former trucker and RCMP operative believes he is a wanted man—not by the law, but by the criminals he helped to convict more than three years ago.

It was not supposed to work out that way. In 1991, Simmons, who was bom and raised in the London, Ont, area, volunteered to participate in a joint Ontario Provincial Police/RCMP investigation of the Outlaws motorcycle gang, a close-knit band of some 200 bikers based in Ontario and Quebec whose stock in trade is drugs, guns and Harleys. After the investigation, the RCMP enrolled him in the so-called witness protection program, relocating Simmons, his wife and their two primary-school-age children to another town, where they received new names and new identities, so they could start life over again.

But that, Simmons now says, was only the beginning of their problems. In a telephone interview with Maclean’s from an undisclosed location, Simmons told a story of broken promises and official bungling that have made the past three years “nothing but hell,” as he describes them. Simmons and his family are no longer under police protection. And the Outlaws, he believes, have a contract out on his life. Now, Simmons, 38, is suing the federal government for $2.7 million over the RCMP’s handling of his case.

“I have to do something to change this,” he says, “because I can’t see putting a dog through this life.”

Because of the lawsuit, the RCMP has officially declined to discuss Simmons or his time in the witness protection program.

But much of Simmons’s story is disputed in the government’s statement of defence, fded in Ontario Court in May, 1994.

Although it acknowledges that Simmons was in the RCMP’s witness protection and relocation program from March, 1992, until September, 1993, it claims that the RCMP fulfilled its contractual obligations to him—and denies any wrongdoing or negligence.

Still, a handful of civil suits over the RCMP’s handling of protected witnesses—the most famous one, launched by a woman calling herself Jane Blank, was resolved out of court in 1993—has brought the highly secretive program under increasing scrutiny in recent years. Largely in response to the spate of lawsuits, federal Solicitor General Herb Gray introduced a bill last March that would make sweeping changes to the program—and make its administration more accountable to Parliament Established in 1984, the RCMP’s witness protection and reloca-

tion program now protects the identities and helps to re-establish the lives of between 80 and 100 witnesses and their families. Since its inception, the program has proven to be a vital tool in law enforcement, particularly in investigations of organized crime. But critics charge that the program has no standard for admission, that it is too secretive and that the lack of consistent rules for dealing with protected witnesses inevitably leads to foul-ups and security problems.

Michael Simmons’s story certainly supports those criticisms. By his own telling, it offers a disturbing glimpse of the price of justice, and of a life lived in fear. And it all began because Simmons did something for police that many people would never imagine themselves doing: he ratted on his own brother.

Throughout much of his adult life, Simmons had an uneasy relationship with his elder brother Andrew, better known as Teach in biker circles. Since his teens, Andrew was in trouble with the law—he has a criminal record dating back to 1969. By the late 1980s, the elder Simmons, who is now 48,

I can’t see putting a dog through this life’

was national president of the Outlaws motorcycle club. While his brother pursued a life of crime, Michael Simmons says he stayed out of trouble and dreamed of being a policeman—a distant dream, he thought “When I was 13 years old, I was told by an OPP officer that I didn’t have a hope in hell because of my brother,” he says. “I believed that for the next 20 years.”

But in February, 1991, Simmons saw his chance. At the time, he was working for an automobile recovery . service—in other words, he was a repo man. The job often brought him into contact with police officers who, he says, taunted him about his brother. “They would say, ‘Repo, huh? It’s a good job for a Simmons, being legal theft,’ ” he recalls. “It drove me kind of nuts, because I’ve lived with that all my life.” On his own, he approached the OPP drug unit in London and told them he wanted to infiltrate his brother’s gang. Recalls Simmons: “The look on their faces when I said I would do it was—I wish I had a picture.”

To prepare for his role as biker, Simmons grew his hair and beard, and began spending more time with his brother. He quit the repo business and got a job with a trucking firm near the Outlaws clubhouse in London. In August, the RCMP signed him to a six-month contract, paying him $600 a week and promising $25,000— a sum later increased to $37,500—upon completion of the investigation. “‘OK, I’m in good hands,”’ Simmons recalls thinking. “‘Heck, it’s the federal witness protection program—what have I got to worry about?”’ Supplied with a proposed “hit list”—the names of 12 men the police wanted evidence on—Simmons says he began buying drugs, guns, Mace and other contra-

band from bikers. “Nobody ever hassled me,” he says. “I could walk into a biker party and they’d be swarming me—hugging me, kissing me, because I’m Teach’s little brother.” By early 1992, Simmons and the OPP undercover officer working with him had enough leads for police to make arrests. On March 12, police staged a series of raids on motorcycle club houses in London and nearby St. Thomas, eventually charging 18 people—among them, two Outlaws and several members of the associated Annihilators gang—with drug and weapons offences. Among those convicted was Andrew Simmons, who received a 10-year sentence and a fine of $25,000.

While his brother faced justice in London, Simmons and his family had already begun their lives as different people. A few days before the arrests, the RCMP had relocated them to a safe interim location—they were moved to their permanent new location about two weeks later. But as he learned what was happening back in London, Simmons had little cause for comfort For one thing, he found out that the undercover officer—whom he had introduced to the gang—was present at the arrest of the bikers, a giveaway that Simmons was an informant Even worse, Simmons says, is what happened in court. Although Andrew Simmons pleaded guilty to all the charges against him, a Crown prosecutor identified his brother, by name and in open court, as the primary source of information. The government, in its statement of defence against Simmons’s lawsuit, claims that he knew all along that he would be identified as a police operative, and that the Crown was required by law to disclose his identity and role to defence counsel. But Simmons, pointing out that there was no need for him to testify—although he had been willing to do so— claims that the Crown and the police carelessly increased the risk to him and his family. “Now they [other bikers] knew for sure,” he says angrily. “Before, there was no way in the world that they would think I was the No. 1 key witness.”

There is a public perception of life as a protected witness, a romantic notion perpetrated by Hollywood movies and detective shows, that once the feds begin to look after someone, he does not have a care in the world. The authorities get him a job, a house, a new life and a fresh start, all under the caring hand of the police. But Simmons tells a far different story.

From the start, he says, the officers in charge of his safety showed a disturbing nonchalance. “They took my wife and me and our two kids to the Toronto airport, handed us our plane tickets and said, ‘See ya later,’ ” he recalls. No police, he adds, accompanied them on the flight. The family changed planes at another airport— and there were no officers there, either.

The RCMP put the family up in a temporary safe location—in this case, a motel room. Meanwhile, the officers in charge pressured him to find a house. Within a week, Simmons found a modest bungalow. But because he had no credit or work history, he had to lie to secure a mortgage.

Two weeks after going into hiding, while his RCMP contacts were pushing him to find a job, the RCMP issued him a social insurance number—no card, just a number, he says. Three months later, he, his wife and his two children received new birth certificates—but there was an error on his wife’s and she had to wait

another 15 months before receiving a correct one. In addition, neither he nor his wife received credit histories, and the RCMP never supplied them with work histories. The result, Simmons says, is that his wife, a registered nurse, has been unable to get full-time work, and he has been forced to take a series of low-paying part-time jobs. Still, from March, 1992, Simmons received $1,000 per month from the RCMP for housing, plus a weekly $300 maintenance payment.

But there were other bungles, Simmons says—at one point, the RCMP forwarded mail to him that was addressed to another witness. But one thing in particular sticks in Simmons’s craw. While negotiating his relocation, RCMP and OPP officers repeatedly assured him that they would prepare a letter of recommendation for him to attend police college, he claims. When he asked his RCMP contacts at the new location about the letter,

“they almost split a gut,” he recalls.

“They said, ‘You’ll never get that.’ ”

Simmons says that he was counting on that letter to help ensure his safety.

“When you’re a cop, you can arrest a guy and throw him in jail and the chances of him coming after you are almost nil,” he explains. “That’s what I was banking on.”

In March, 1993, increasingly frustrated and in financial straits, Simmons fired off a letter to then-Solicitor General Doug Lewis, the minister responsible for the RCMP in the former Conservative government. The solicitor general’s office sent him a terse letter of acknowledgment several weeks later. In mid-May, Simmons received an itemized response from Supt. J. G. R. Goulet, the officer in charge of the RCMP drug operations branch, whose men had handled Simmons’s case from the beginning.

In August, 1993, Simmons’s RCMP contacts arrived at his door and presented him with a termination notice, effectively ending his term of protection.

The officers asked him to sign the notice, but he refused. “They were kicking us out of the program,” Simmons says. “Well, I’d never been a member of a program anyway. What were they going to take away?” By the end of September, the RCMP’s housing allowance ended, as did the weekly payments. In the same month, Simmons decided to take his complaints to court.

In its response to Simmons’s statement of claim, filed in Ontario court of justice, general division, in November, 1993, counsel for the attorney general of Canada denies almost all the allegations. Police never promised Simmons a letter of recommendation in writing, the statement of defence claims; the RCMP fulfilled its obligations as they were set out in various written letters of agreement, signed by Simmons.

Still, Simmons’s is not an isolated case. In 1993, Jane Blank sued the federal government for $6 million after she testified against her abusive husband in a fraud case and the RCMP, she charged, failed to provide protection—her case was resolved out of court. More recently, Launa Edwards, a witness in the 1992 Supreme Court hearings into the case of David Milgaard—who, before his release three years ago, spent 22 years in prison for a murder he says he did not commit— filed suit last year, claiming that assurances to protect her, made in chambers by Chief Justice Antonio Lamer, were never honored by the RCMP. In its statement of defence, however, the government

maintains that enrolling Edwards in the witness protection program was never discussed.

Against that background, Solicitor General Gray’s Witness Protection Program Act would make some significant changes. Among other things, the bill clearly sets out the process for admission into the program, and specifically refers all complaints to the RCMP’s public complaints commission, an independent review body. Although Gray says the existing program has been “quite effective,” he acknowledges that his bill was prompted by the recent lawsuits. “I felt that creating a legislative basis for the program would help ensure that those who entered it have a clear idea of their obligations,” Gray told Maclean’s, “and that the same would apply to the RCMP.” But the bill, which is expected to receive second reading in the fall, would also take away witnesses’ ability to sue—an addition that Simmons’s lawyer, Toronto-based Barry Swadron, dismisses as “getting rid of a political hot potato.”

In the meantime, life is not getting any easier for Michael Simmons. In mid-July, his stint as an agricultural worker ended, and he is now out of work. The stress of his upcoming legal battle—his case is now in discovery phase, and may not reach court, Swadron estimates, for another two years—has only aggravated the difficulties of living in hiding. He has not seen his parents since Christmas, 1991. Phoning home means driving to a public telephone far away.

Their secret pasts have prevented the family from becoming fully part of their new community. For a time, they attended the local United Church. “Everything is a lie,” Simmons says. ‘You’re standing shaking hands with these people in church and you’re lying to them. We’ve since stopped going, because we can’t do that.” Simmons has not told his youngest child about his past—which, he says, has taken a psychological toll. “She gets this empty look in her eyes and asks why we can’t go see Grandma. What do I say?”

And there is the fear. Simmons and his wife still drive their kids to and from school every day. The low rumble of Harley-Davidsons passing by the house sends him into a cold sweat, he says. With some chagrin, he adds: “One of the first things I had to do, once I realized what was going on here, was go out and get a handgun. I’m a registered handgun owner now.”

Still, Simmons says he is determined to have his day in court— even if it means exposing himself to the Outlaws or to any of the hundreds of other bikers who he believes want him dead. His reasons are, perhaps, less than noble—but understandable. Besides the fear and the disappointment he expresses, there is a strong undercurrent of anger in his voice—and a clear desire that others not make the same mistakes. “I want to make sure that you know what would happen if you were walking down the street and witnessed a murder and then they’re asking you to testify,” Simmons says. “Anybody who figures they’re going to do good deeds for their country had better take a hard look and think of themselves. Because there’s no life here—none whatsoever.” Of all Simmons’s allegations, that may be the most disturbing. □

‘She asks why we can’t see Grandma. What do I say?’