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In the crosshairs

Cover Story
|Written By Jennifer Brown
In the crosshairs

On the morning of Oct. 17, 2012, David Potts got up as usual and went to his job as solicitor for the City of Oshawa as if it was any other day. As difficult as it might be for some to understand, it was important to him that he do that — even though the night before he found himself the target of a volatile abduction by a former municipal councillor who had held him at gunpoint for three terrifying hours.

On Oct. 15, David’s wife Maureen, a teacher, had arrived home from a meeting in their southern Ontario city around 10 p.m. Two of the couple’s four children were at home with her, while the two oldest were away at university. Maureen and David had been text messaging each other earlier that evening about when they hoped each of them would finally be home from their long days. David had been at a council meeting that night. The couple have known each other since they were 14 years old. “Maureen is the most beautiful person I have ever known,” says David, a soft-spoken man who clearly adores the love of his life. “I’ve been privileged to have been married to her for almost 26 years.”

Before joining the City of Oshawa in 2001, Potts practised with his dad Jim and brother-in-law Stephen Kylie in Peterborough, Ont., from 1992 to 1999. It was a family business. But Potts found himself drawn to public service and has been part of the small legal department in the growing community just east of Toronto.

When Potts finally arrived home that night at 10:50 p.m., he realized an unknown sport utility vehicle was parked outside his house. As he exited his own car, he noticed the person approaching him was former Oshawa city councillor Robert Lutczyk. Potts, surprised but not immediately worried to see the councillor in his driveway, recognized Lutczyk and was about to extend his hand to the man. Maureen and the couple’s two daughters aged 14 and 16, who were home at the time, would soon hear Potts’ car alarm go off. Lutczyk had approached Potts, indicated he had a gun, and swiftly stuck it in Potts’ ribs, shoving him into his waiting SUV, saying he would be shot if he didn’t get into the truck.

Potts says he had never had any kind of confrontational encounters with Lutczyk during the time the troubled man was on several terms of council. “Personally, I never had any dealings with him outside of city hall, and my dealings with him within city hall were no different than with any other member of council,” says Potts. “If he and I were ever passing in the hall, it might be simply ‘Hi, Dave.’ ‘Hi, Robert.’”

What happened that night was completely unfathomable to David Potts.

Three-year ordeal

On Feb. 26 of this year, Lutczyk was sentenced to eight years and four months in prison for Potts’ 2012 violent kidnapping. Lutczyk, who had been in custody since the incident, was sentenced at the Durham Region Courthouse before Justice Alexander Sosna. With credit for time already spent in jail since his arrest, Lutczyk has three years and four months left to serve.

Potts, who refrained from speaking to the media throughout the legal proceedings, spoke briefly outside the courtroom in Oshawa after the sentencing in February. With his wife, parents, and two of his four children by his side, he said he accepted the outcome. “I really do feel that justice was served. I commend both counsel for their excellent work,” Potts said.

In his sentencing decision, Sosna highlighted the fact that Potts, as the solicitor for the City of Oshawa, was clearly targeted by Lutczyk for his role as the lawyer for the city. Lutczyk blamed Potts for a decision the city made to garnish his council salary between 2008 and 2010 regarding a $190,000 judgment against him by a construction client, and for a 2003 dispute between the city and his father related to a zoning bylaw.

The city was on the receiving end of garnishment proceedings initiated by Lut-czyk’s creditors. Potts’ role was to give the legal opinion. Also as the city solicitor, it was ultimately Potts’ responsibility to make the determination whether there was enough evidence to proceed with a prosecution under the city’s zoning bylaw. He decided there was and the prosecution led to a conviction following a trial with a $1,000 fine that was imposed. Lutczyk pursued appeals all the way to the Supreme Court of Canada and lost.

Lutczyk was broke, without work, and his marriage was falling apart. He decided to direct his blame at Potts. “David Potts, as the lawyer for the City of Oshawa, was performing his duties in accordance with his calling,” Sosna said in court. “Individuals performing their duties in the judicial system should have no fear of retribution for violence or threats from members of the public who perceive they have been wronged. The strength and integrity of this system of justice cannot be eroded or lessened by such actions. Lutczyk, in kidnapping David Potts, did exactly that.”

Sosna said Lutczyk’s statements to police during the 26-hour standoff after Potts managed to escape “speak volumes” for his views as they related to Potts and his role in the justice system. Statements such as: “He messed with me so many times . . . he cost me money and he did it out of malice; for no good reason.” When asked about the fact he was targeted by Lutczyk because of actions he took as the lawyer for the city, Potts simply deferred to Sosna’s comments: “That was a concern, and I think Justice Sosna’s comments were appropriate,” he said.

‘MOST TERRIFYING NIGHTMARE’

The case has been a long and tumultuous one for the Potts family as they endured countless court delays, including pre-trial motions that dragged on for six months as Lutczyk argued his charges ought to be dismissed because of his treatment in jail. In the victim impact statement Maureen gave to the court in early February, she said on the night her husband was kidnapped, she feared she might never see him again. At a sentencing hearing Potts attended with 15 family members including his four children, his wife read an emotional half-hour-long victim impact statement on behalf of the family. Potts chose not to provide a statement of his own.

Often pausing to hold back her tears, Maureen explained how the events of Oct. 15, 2012 unfolded, describing it as “the most terrifying nightmare that one could ever inflict on a family. What happened is also important for anyone who has a role in the administration of justice,” she said. “We have relived the details of that night for each of the 1,200 days and nights since.”

On the night of the kidnapping, the Potts’ oldest daughter, Mary, 20, and son Sam, 19, were away at university. Daughters Ellen, then 16, and Julia, 14, were with their mother at home in Courtice, Ont.

When they heard the car alarm, Maureen and Ellen ran from their bedrooms, down the stairs, and out the front door into the driveway, fearing Potts had somehow hurt himself and was trying to draw their attention. “The driver’s door on David’s car was open. So was one of our garage doors. David was not there. I knew he had been taken,” Maureen said.

She called police and tried calling Potts’ BlackBerry and left messages. Their voices were panicky and desperate. The phone went dead as Ellen was trying to leave a message for her father.

Thinking it might have been an incident of road rage or robbery, Maureen’s mind went to what she thought was a worst-case scenario — was he being beaten or left for dead? “I’ve never been so desperate and lost. I contemplated that I would never see David again,” said Maureen, who was trying to stay strong for her children. “I couldn’t bear to think of my life without Dave.”

Once he had Potts in his SUV, Lutczyk drove him to an industrial area in nearby Whitby, Ont., where he chained his wrists together and took his BlackBerry. He would eventually ask Potts for the password to his voice mail and played back messages from his wife and daughter — frantic voices in messages left after Potts had been abducted.

The industrial unit where Lutczyk held Potts contained an arsenal of weapons including guns, grenades, plates for body armour, and 1,548 rounds of ammunition for a rifle. During the emotional victim impact statement, Maureen listed the things found in the truck, which included an Armi Jager (AK47 variant) 0.22-calibre semi-automatic rifle with two clips containing 27 rounds and 15 rounds in a backpack behind the driver seat, nylon ties, gloves, bear spray, and a collapsible shovel.

A cube van Lutczyk had also obtained had been altered to include wooden cabinets and metal plates for the doors and windows. Inside the cube van and the industrial unit there were other weapons including a semi-automatic handgun with 18 rounds — a prohibited firearm, Russian anti-tank rifle, a device with three filled propane tanks and materials to make a pipe bomb.

At one point during the three hours he was held hostage, Potts managed to convince Lutczyk to drive to a Tim Hortons restaurant to get him some food. On the way, Lutczyk said: “You know, David, there is a doomsday scenario.” Potts was convinced he was going to kill them both when he talked about the doomsday scenario.

Meanwhile, Maureen had called police as soon as she heard the SUV drive away from their house.

Working with Rogers Communications, police began to try and track Potts’ BlackBerry. Once police were able to locate Lutczyk’s vehicle at the Tim Hortons, a chase took place back to the location where he had been holding Potts. A struggle ensued and Potts was used as a “shield” by Lutczyk against police with drawn weapons, but Potts was able to escape to police unharmed.

Durham and York Region Police were on the scene. When he managed to break free, Potts told police it was Lutczyk who was in the unit and warned them not to let their officers go into the unit, as he believed there were bombs inside.

Throughout the ordeal, Potts says he knew it was important to keep his composure — for Lutczyk to see him as he would have seen him each day at city hall. He also refused to sit on a stool Lutczyk had placed in the unit holding area for Potts, he kept his tie straight, he chose his words carefully — all intended to re-direct and avoid immediate confrontations.

That worked until Lutczyk began playing back the voice mail messages from Maureen and his daughter.

In her statement, Maureen described this as: “Mr. Lutczyk’s unimaginable cruelty found its mark that night and continues to haunt.”

Inside the unit, Lutczyk angrily described his personal and financial circumstances, blaming Potts. He said he was “exacting revenge.” At one point, using Potts’ BlackBerry, he sent messages to Oshawa’s city manager, Bob Duignan, inquiring about his availability. As city manager, Duignan had authority to settle financial disputes involving the city. Potts had suggested it as a way to depersonalize the conflict and buy time.

As Maureen stated in court: “There were no witnesses to Mr. Lutcyzk’s serious crimes except David, who was handcuffed in front of his armed kidnapper.”

During the preliminary inquiry, Potts spent two days on the witness stand describing the details of that night, except the part about the voice mails. He couldn’t get the words out, Maureen said, and still can’t.

“There are no words to describe Mr. Lut-czyk’s cruelty to David’s rage and despair,” she told the court.

Once inside the unit, it occurred to Potts that Lutczyk hadn’t made any attempt to conceal his identity.

“When he chained my wrists and padlocked it, and then when I saw him opening the gate with a key he had, that’s when I felt the real sense of ‘OK, this is bad,’” says Potts, who knew then he had to get out of the industrial unit. “It was almost like an obsession; I had to be outside,” says Potts, who was constantly thinking about his wife and four children and the possibility he would never be discovered.

The unit where Lutczyk took Potts was on a dead-end street in a low-traffic area. The parking area was enclosed by a fence with a locked gate. After stopping in front of the gate, Lutczyk reached to the dark floor of the rear seat, pulled up a metal chain, and instructed Potts to hold his wrists in front of him. The chains were replaced with plastic tie handcuffs while Lutczyk referenced his military training and then took Potts at gunpoint through a metal door into the industrial unit. But, eventually, Potts convinced Lutczyk to remove the handcuffs and eventually go to the Tim Hortons.

Guilty plea

On Dec. 1, 2015, after three years of legal wrangling, Lutczyk, 48, pleaded guilty to charges stemming from the kidnapping that ended in a 26-hour standoff with police. He has been in custody since the event.

He entered the guilty plea for kidnapping Potts at gunpoint, as well as two other weapons charges.

When asked how he felt about the ordeal being over once sentencing was handed down, Potts simply said it was “back to the office” for him. “It’s over. It was over three-and-a-half years ago,” he said. Potts said he and his family accept the apology Lutczyk made during sentencing submissions Feb. 4, in which he said he was sorry for the “ordeal” and pain caused to the family. Outside the courthouse on Feb. 26, Maureen Potts thanked Lutczyk for his apology, saying it “meant a lot to our family.” She said her husband “is a man of great integrity, and he has shown that all through this procedure, wanting a fair trial for Mr. Lutczyk. He has been an amazing father and husband all through this.”

During his pre-sentence comments, Sosna highlighted the fact that Lutczyk waited three-and-a-half years after his arrest to extend his apology to Potts and his family.

Sosna had initially suggested he was considering a 10-year sentence for Lut-czyk with five years’ credit for time served based on a formula of 1.5 days for each day he has already spent in jail. The Crown had originally submitted Lutczyk should be eligible for two days for each day served. After some last-minute arguments put forward by defence counsel Chris Murphy, Sosna reconsidered, offering a nine-year sentence. Sosna agreed to a final joint submission of eight years and four months from Murphy and Crown counsel Ngai On Young, with agreement on 1.5 days for each day served. He said he found no legal reference for him to grant the 2-for-1 credit formula.

When asked if he has any lasting effects from the kidnapping, Potts referred to his wife Maureen’s victim impact statement that spoke to what it was like for the family the night Potts was abducted.

Sosna also noted additional orders to Lutczyk’s sentence include a DNA databank order, firearm prohibition for life, and a ban on contact with Potts and his family during the time Lutczyk is in custody.

“Please listen to me, Mr. Lutczyk, and listen hard. The last order I can only apply during your period of custody . . . I can’t order this, but for the sake of the Potts family that is here, who have suffered in many ways, you would be best served to stay away from them, do you understand that?”

Potts says the responsibilities of lawyers no matter what the potential risks are “non-negotiable.” “What happened to me happened in my driveway; not at city hall. These risks exist all the time for everybody.

It’s understandably a risk for any lawyer, and for me, I would never in my wildest dreams have predicted an armed kidnapping in my driveway. The important thing is that our responsibilities to our profession and our clients are non-negotiable. The perception that there would be any influence or different thinking in those circumstances is a concern as well,” he says.

Today, Potts is adamant that for him and his family, the “kidnapping happened and it’s over. It was easier that night for me than it was for Maureen and our children and our family and friends,” he says. “I knew what was going on and they didn’t. We have everything for which to be grateful.”

Potts notes he has but one client — Oshawa council and its staff. “They’ve also treated me and the circumstances as business as usual every day. I’m a pretty lucky person,” he says.

While he is Catholic, Potts says he “doesn’t wear that on his sleeve,” but forgiving Lutczyk has been important to him and his family in terms of moving on with their lives. “This has nothing to do with religion; but I am a victim if I hang on to this. I have been very self-conscious about that status — that label — from the beginning. I really and truly bear no ill will toward Mr. Lutczyk. What he did was very serious. On a personal front, I really have let go.”

The Potts’ son Sam’s career plan was to apply to law school, until his father was abducted. He then made the decision to focus on becoming a police officer instead and has applied to the Ontario Provincial Police.

The Potts’ youngest daughter is also pursuing a career in law enforcement. Potts is focused on the future for all involved. “I really am hopeful Mr. Lutczyk will find his way and have the help of family and friends,” he says.

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