Most importantly, Heinemann discovered that Kelsall and Latouf had been fully aware of the investigation when Kelsall called Heinemann that Saturday to propose the meeting at the church. During his testimony, Dan Riley also confirmed that the warrior flag was all about outlaws, defiance, and disrespect for authority. The flag was ubiquitous on the reserve, Riley said, but only criminals and malcontents displayed it.
As the case wore on, Heinemann became increasingly mistrustful. He started to believe there was a grand conspiracy afoot—one that might even include Rosen—to portray him as a lone, rabid racist who had been heroically rooted out by the opp on the cusp of the Ipperwash inquiry.
In early July, shortly after the opp concluded its case against Heinemann, Latouf told Heinemann he would testify for him, but only in camera0—an offer that was unfeasible given the public nature of psa hearings. Media reports about his settlement package had already caused him heat at work, he said. Although Latouf remained at the top of his wish list, Heinemann identified many individuals he wanted called in his defence, including the commissioner herself, Inspector Deevy, Chief Riley, even the psychiatrist who had examined him. He presented the list to Rosen, one of the most prominent defence lawyers in the country, but was made to understand that calling these people would do more to harm his case than to help it. Ultimately, Rosen put only Heinemann himself on the stand.
psa hearings are more constrained than criminal trials, and in Heinemann’s case the finding hinged not on whether there was reasonable doubt that his actions constituted racism, but rather a straight either/or finding based on clear and convincing evidence that he broke opp protocols. On October 28, 2005, the hearing adjudicator found him guilty of discreditable conduct and deceit. While the ruling was harsh, the adjudicator did conclude that there was no racial intention behind the pen marks. This was a huge victory for Heinemann.
Immediately after the ruling, Rosen brought a motion to compel the opp to produce the details of all the settlements made with various Barrie tru members, including John Latouf and Ken Deane. Rosen argued that these settlements (which left both men unscathed and enriched) were essential to inform the adjudicator’s deliberations about what punishment, if any, Heinemann should receive. Naturally, the opp vigorously opposed his motion, and in December the adjudicator ruled against it. Rosen then appealed to the Divisional Court, which took the matter out of the cloistered world of a psa hearing and the opp’s general headquarters.
The opp was heavily invested in the widely held perception that Ken Deane was a bad apple who had been plucked out of the basket and discarded. The last thing it wanted made public were the details of what Ken Deane actually received after the Ipperwash case or information about John Latouf ‘s settlement package. And the organization’s lawyers feared that Rosen’s appeal would succeed.
In mid-January 2006, Heinemann received an offer via the Ontario Provincial Police Association (oppa) that would allow him to keep his job. The terms were as follows:
(1) Demotion from first-class to fourth-class constable with a work-back schedule within the usual time frame—a matter of years. Overall, this would amount to an $80,000 loss in pay.
(2) A transfer, selected from a set list of detachments. This meant that Heinemann would have to move his family out of the Barrie area.
(3) Participation in a native healing course.
Heinemann was given until January 25 to make a decision. If he did not accept the offer, the union would cut off his legal funding.