Not Good Enough
Current Failures of Police Accountability in B.C.
Professor Gerry Ferguson and Professor Michelle Lawrence
Criminal Law Term- Major Paper
March 11, 2016
Celia Pinette
Word count: 7670
“The public is demanding accountability of the police. I do not think that the demands of the
public are unreasonable. The public has conferred upon the police powers, which are not
conferred upon ordinary citizens. In any democratic society based on the rule of law and
responsible government, it is fundamental that police independence be balanced with
accountability."
(Retired) Justice Wally Oppal,
Commissioner of Inquiry on Policing in BC1
Police officers are authorized by law to use deadly force. Society entrusts police with
discretion to use that force in rare, but appropriate, circumstances. When those circumstances
manifest, and a police-involved death occurs, it is imperative that the family of the deceased and
the public are provided with an accurate and forthcoming account of the events leading to the
killing. Regrettably, it would appear, this is often not the case. It is argued in this paper that, in
the absence of any legal mechanism to compel evidence – even self-incriminating evidence from the police officers involved in a killing, families are left in the unsatisfactory position of
having to search for the truth on their own. Often without assistance and likely without result,
arguably drawing the administration of justice into disrepute in the process. The law as it stands,
is simply not good enough.
Police interests are protected by a culture that appears to permit, if not encourage,
coercion and perjury. Police have reportedly fabricated independent evidence, such as video
footage, computer records, audio recordings and officer notes.2 This naturally gives rise to a
concern about the transparency and integrity of evidence of police misconduct, particularly from
the point of view of affected families, since police officers are likely to be the collectors and
guardians of evidence in the moments after a killing occurs and before any other supervisory
1
Commissioner the Honourable (Retired) Mr. Wallace Oppal. (1994). Closing the Gap: Policing and the
Community. Vol 1 (in subsequent footnote Oppal Report) at 17.
2
Tanovich, David M. Faculty of Law, University of Windsor. (no date). Judicial and Prosecutorial Control of Lying
by the Police. Criminal Reports 100 C.R. (6TH) at 323.
1
agencies might become involved in the investigation. In many cases, the subject officer is likely
to be the only witness.3
It is argued that, in light of these uncomfortable realities, it is essential that the
Independent Investigations Office (“IIO”) be provided with the legislative authority to compel
subject officers as part of their investigation of a police-involved death.4 Police notes and police
interviews are key forms of evidence, and are essential for the IIO to conduct competent,
thorough and timely investigations. Without such evidence, the IIO’s ability to fulfill its
legislative mandate is impeded, the public interest in police accountability is left unmet, and
families are left without answers.
It perhaps goes without saying that the special immunities afforded to police officers at
law, reports of abuse of authority on the part of individual police officers, and insufficient
accountability in the supervisory regime have led to a diminished trust in the police on the part of
affected families and the public. The research conducted for the purposes of this paper aims to go
beyond the anecdotal reports of and reactions to allegations of police bias and lack of
accountability. It will consider the cases, seek to identify shortcomings in the law, and explain
how external agencies and legislation does not adequately facilitate disclosure. In the result, legal
authority on the part of the IIO compel subject officers to provide an account of their
involvement in a killing is therefore recommended. It is further argued, to the extent those
accounts are inculpable, police should be exempt from protection of self-incrimination otherwise
available to citizen due to their special authority and duties as peace officers.
3
BC Civil Liberties Association. (no date). Police Involved Deaths: The Need for Reform (in subsequent footnote
BCCLA Police Reform) at 2. Research by David MacAlister, available online at: https://bccla.org/our_work/policeinvolved-deaths-the-need-for-reform/>.
4
For the purposes of this paper, “police-involved death” is defined as the police killing a civilian member of society
by way of lethal force.
2
Recent Cases of Police-Involved Deaths in British Columbia
There appears to be a relatively long -- and sadly repeating -- history of police-involved
deaths in British Columbia, where police involvement in the subsequent investigation and
prosecutorial process has sometimes defied comprehension and often times strained public trust.
Set out below is an abridged summary of some recent cases on this point.
In December 1998, the body of Frank Paul was discovered dead from hypothermia in an
alley in the Downtown Eastside. Initially, Vancouver Police officers told the Paul family that
Paul had been the victim of a “hit-and-run.” They did not inform the family that, the evening
prior to his death, Paul had been in police custody for being intoxicated in a public place, that he
had been transported by police wagon to an alley, and that he had been dumped there and left to
die. An internal jailhouse video was later released. It showed police officers dragging Paul’s
unconscious body out of an elevator.5
In October 2000, Jeffery Berg was apprehended in an alley by a member of the
Vancouver Police Department. He later died as the result of a fatal traumatic brain aneurysm. A
police spokesperson maintained that Berg was violent in his dealings with police officers. He
reportedly "collapsed" as a result of an altercation with them. However, an autopsy concluded
the cause of death was an aneurysm brought on by a blow to the neck.6
In December 2002, Thomas Stevenson was shot six times by two members of the
Vancouver Police Department after he refused to get out of a locked stolen car. He died as a
result. It was later discovered that, at 1:30 a.m. on the morning after the killing, homicide
investigators met with the Vancouver Police Union president and media relations to formulate a
5
PIVOT. Towards More Effective Police Oversight. (2004) (in subsequent footnote PIVOT) at 11. Eby. D, Metcalf.
J, Richardson. J, Singhal. D. Available online at: http://capg.ca/wp-content/uploads/2013/05/Effective-PoliceOversight.pdf>.
6
PIVOT, supra note 5 at 11.
3
public relations position. Indeed, later that morning, the department announced Stevenson’s
death and released Stevenson’s criminal record to the media, seemingly to convey the impression
that Stevenson was an individual in repeated conflict with the law.7
In October 2005, Ian Bush was detained for drinking beer outside a hockey arena in
Houston, B.C. and killed while in custody. R.C.M.P. told the Bush family that Bush and
Constable Koester were alone in the detachment, that Bush attached an officer, and that the
officer shot him in self-defense. Not video surveillance video was available, officers explained,
since the video recording equipment in the facility had not been turned on that evening.8
In the summer of 2007, Paul Boyd was shot eight times by Vancouver Police. He
reportedly swung a heavy chain at an officer during an attempt to arrest. The police account was
that Boyd possessed the chain at the time the officer shot, and that the officer acted in selfdefense. Quite unexpectedly, civilian video evidence emerged five years after the incident. It
showed that Boyd was in fact on his hands and knees, crawling toward officers and seemingly
posing little danger to them at the time he was shot. Special prosecutor, Mark Jette, took the view
that the new evidence was incomplete and did not tell the whole story. He was apparently
influenced by the fact that, although the civilian evidence showed what appeared to be an officer
removing the chain from Boyd,9 “a number of civilian witnesses failed to observe a police officer
remove the chain prior to the fatal shots.”10
In 2007, Constable Millington killed Robert Dziekanski at the Vancouver International
7
PIVOT, supra note 5 at 12.
Journal of the British Columbia Civil Liberties Association. (2007) (in subsequent footnote BCCLA Journal) at 5.
Vol 41. Article by Linda Bush. Available online at: https://bccla.org/wpcontent/uploads/2012/08/2007_Fall_Newsletter_Democratic_Commitment.pdf>.
9
The Canadian Press, “No Charges in Fatal Vancouver Police Shooting Prosecutor Rules.” (2013). Available online
at: <http://www.theglobeandmail.com/news/british-columbia/no-charges-in-fatal-vancouver-police-shootingprosecutor-rules/article15126522/>.
10
BC Government Criminal Justice Branch Media Statement. No Criminal Charges Approved in the Death of Paul
Boyd. (October 28, 2013) at 7.
8
4
Airport by use of conducted energy weapon. Millington was convicted of perjury for testimony
he gave at the Commission of Inquiry into Dziekanski’s death. In July 2015, he was sentenced to
30 months in prison, but was released on bail pending the sentence appeal.11 Corporal Benjamin
(“Monty”) Robinson was also convicted of perjury in connection with the Dziekanski killing. He
was sentenced to two years less a day in jail, one year probation, and 240 hours of community
service. A BC Supreme Court Judge told the court that “[i]t was Robinson's job to tell the truth
as a police officer…It strikes at the heart of the justice system."12 The civil suit launched
Dziekanski’s mother was settled for a non-disclosed amount.
In October 2008, Robinson was involved in an off-duty death in Delta. He was driving
under the influence of alcohol with his children in the vehicle when he struck and killed a 21year old. It was found that Robinson immediately proceeded to his home and consumed two
shots of vodka in order to thwart the subsequent police investigation. He was sentenced on
conviction to a one-year conditional sentence. He was suspended with pay for four years before
he voluntarily left the RCMP in 2012.13
In 2009, David Pompeo of the Duncan RCMP shot Bill Gillespie during a traffic stop.
Gillespie survived the shooting, albeit with a bullet now permanently lodged near his spine.
Pompeo was convicted of aggravated assault. The issue at trial was whether the use of lethal
force was within the scope of section 25 of the Criminal Code. The judge found that while the
officer believed that the use of lethal force was necessary for self-preservation, there was no
11
No author, “Robert Dsiekanski Taser Death: Kwesi Millington Sentenced to 30 Months for Perjury”, CBC News
(June 22, 2015). Available online at: <http://www.cbc.ca/news/canada/british-columbia/robert-dziekanski-taserdeath-kwesi-millington-sentenced-to-30-months-for-perjury-1.3122941>.
12
No author, “Monty Robinson to Appeal Conviction in Robert Dziekanski Perjury Case”, CBC News (June 24,
2015). Available online at: <http://www.cbc.ca/news/canada/british-columbia/monty-robinson-to-appeal-convictionin-robert-dziekanski-perjury-case-1.3166318>.
13
Vivian Luk, “No Jail Time for Former RCMP officer Monty Robinson Convicted of Obstruction”, The Vancouver
Sun (July 27, 2012). Available online at:
<http://www.vancouversun.com/news/jail+time+former+RCMP+officer+Monty+Robinson+convicted+obstruction/
6999826/story.html>.
5
reasonable basis for that belief and received a 2-year probationary sentence. On appeal, the BC
Court of Appeal held that the judge erred in excluding the evidence of an expert who was of the
view that the use of lethal force was necessary in the circumstances of the case and in accordance
with police protocols and training. A new trial was ordered, and outcome of which is expected in
April 2016. Gillespie’s civil suit was settled for a non-disclosed amount.
External Investigatory Agencies for Police-Involved Deaths
It is understandable that a family’s trust in police would be strained when their loved one
is killed by the police officer. Adding to this strain is the unfortunate reality in our legal system
that affected families cannot rely on police to provide them with an accurate account of the
incident and events leading up to the family. Families may be left for days without knowing the
particulars of the incident. They may resort to calling hospitals to find out something as simple
as the location of the body of their loved one. They may meet with police officers, only to learn
subsequently through media reports that they were not told the whole story. Worse, they may be
left on their own to combat misinformation and defamatory comments circulating in the press
about their partner, parent, sibling or child.
It would not strain the imagination to think that families in these circumstances might
distrust even the external agencies involved in the investigation. Multiple inquiries, reports and
recommendations regarding problematic police legislation have emerged against this backdrop.
All have called for improved police accountability through independent investigatory processes,
but seemingly little attention has yet been given to the important question of disclosure. For
example, in 1994, Commissioner Wally Oppal released the Oppal Report. It recommended
action for the implementation of an independent public trust complaint investigative process. In a
6
subsequent 2007 report entitled Review of the Police Complaint Process in B.C., former B.C.
Supreme Court Justice Josiah Wood likewise called for enhanced civilian oversight of police
wrongdoing investigations. Two years later, in 2009, the Davis and Braidwood Inquires
addressed the failures of police-involved death investigations, and recommended that the
government create an office for independent investigations.14
It is not until 2015, when the B.C. Legislature released Special Committee to Review the
Independent Investigation Office, that specific consideration is given to questions of disclosure.
That report includes seven recommendations, including an endorsement of officer worn body
cameras as a means of gathering evidence following a police-involved death. The report states
that police notes had been dealt with through the provisions of the Memorandum of
Understanding (“the MOU”), between the IIO and Police Agencies. It is argued below that the
current law around police notes needs to be reformed in order to allow for office evidence of this
kind to be compelled.
What follow is an overview of the external investigatory agencies with jurisdiction over
police-involved deaths, and the disclosure requirements of each.
BC Coroner Services
a.
History
As concluded by the Supreme Court of Canada in Faber v. the Queen, “The traditional
role of the coroner…was replaced by a duly Canadianized function, one which was not primarily
of a criminal nature, but came to have a social context.”15 In 2007, thirty years after that
decision, the BC government repealed and replaced the Coroners Act. The coroner now plays a
14
The British Columbia Civil Liberties Association and PIVOT Legal Society have also published a variety of legal
reports and made recommendations on police accountability from a public interest perspective.
15
Faber v. the Queen, [1976] 2 SCR 9 at 30.
7
significant part in enhancing public safety through the prevention of future deaths.16 If this is the
case, however, further legislative amendments have made the current law somewhat inconsistent
with the legislative intent. The growing number of police-involved deaths has not been identified
as a factor in the preservation of public safety (see Table 2). Furthermore, many of B.C.’s past
Chief Coroners have been ex-police officers, which begs the question of whether the BC Coroner
Service will be trusted by families or the public to provide a fair investigation or inquest
following a police-involved death.
b.
Coroner Investigation
The Coroners Act and accompanying Regulations govern the operations of BC Coroner
Service.17 Section 3(2) provides that a peace officer must immediately report to a coroner the
facts and circumstances relating to the death of a person who dies while detained by or in the
custody of the police. However, the Coroner Act falls short of what should be required to
investigate a death by a police officer. Section 7 provides that a coroner must conduct an
investigation if the coroner receives a report of a death that occurred in B.C. A coroner
investigation sets out to determine the cause of death, and may or may not involve an autopsy of
the deceased body. When a death is reported to the Coroner, he/she has the authority to collect
information, conduct interviews, inspect and seize documents and secure the scene. Upon
conclusion, a report is released, setting out the coroner’s findings and cause of death.
The coroner relies on evidence from the police, who may or may not disclose pertinent
evidence if a homicide is in question. The coroner investigation is not a means to criticize the
quality of the evidence provided by the police. Naturally, in the result, the coroner’s
16
British Columbia, Legislative Assembly, Hansard, Third Session, 38th Parl, 3rd Sess, Vol 16 No 2, (8 March
2007) at 1340.
17
The Coroners Act (SBC 2007) Ch.15 and The Coroners Act B.C. Reg. 298 (2007).
8
investigation may leave a family with few answers and further questions regarding circumstances
of the death. The Chief Coroner may re-open an investigation upon an application outlining new
evidence. Even then, there is no guarantee that a new investigation will yield a more satisfying
outcome.
c.
Coroner Inquest
Inquests are formal court proceedings, with a five-person jury, held to publicly review the
circumstances of a death. Unlike a coroner investigation, the inquest jury hears evidence from
witnesses. The presiding coroner is responsible to ensure the jury maintains the goal of factfinding, not fault finding. Upon conclusion, a verdict is prepared, including the classification of
the death and recommendations on how to prevent a similar death. Once an inquest is complete,
a family may gain access to the investigation file.
Until recently in British Columbia, all police-involved deaths were the subject to a
coroner inquest. Requiring an inquest ensured the public that every death in custody would be
given the serious attention it deserves. Section 18(2) of the Coroners Act, previously stated:
s. 18 (2) The chief coroner must direct a coroner to hold an inquest if the deceased person
died in any of the circumstances described in section 3 (2) (a) [deaths while in the
custody of peace officers].
However, in 2010, section 18(2) was replaced with provisions that removed the important
requirement of an inquest.
a
s. 18...(2) If a deceased person died in a circumstance described in section 3 (2)(a)
[death while in custody of peace officer],
the chief coroner must direct a coroner to hold
an inquest unless
any of the following apply, in which case the chief coroner may direct
coroner to hold an inquest:
(a) the chief coroner is satisfied that
(i) the deceased person’s death was due to natural causes and was not preventable, or
(ii) there was no meaningful connection between the deceased person’s death and the
nature of the care or supervision received by the person while detained or in custody;
9
Removing police-involved deaths out of the public view by depriving them of a
mandatory inquest18 decreases accountability. Appendix A sets out a list of coroner’s inquests
into police-involved deaths since 2007. As noted therein, since that date, 91 out of 132 coroner
inquests were related to police-involved deaths. Since the establishment of the IIO in 2012, to the
present date, there have been 24 police-involved deaths.19 As a result of the 2010 amendments,
inquests were held for only nine of those deaths.20
The inquest process if problematic for a variety of reasons. Notwithstanding the negative
effect of legislative amendments, the family of the deceased is not provided with legal counsel
for the inquest and is left to retain counsel at their own expense. This gives an unfair advantage
to the state, as illustrated in the Bush case. Taxpayer funded government counsel represented the
RCMP, the subject officer, and the Attorney General’s office. The Bush family retained their
own counsel, and hired an investigator, pathologist, and blood spatter expert at great expense,
without whom, Bush’s mother states, “the coroner would rubber stamp the police investigation
through the inquest.”21 The forensic evidence revealed that Bush was shot in the back of the
head.
Section 61 of the Coroner Act provides that a coroner must not be required to testify or
produce evidence in any proceedings about the reasons for which he or she reached a conclusion
or made a decision in the performance of duties under the Act. The provision acts as an
“immunity” for officers in subsequent criminal proceedings, which is not particularly
problematic if the family feels they have gained some measure of accountability through the BC
18
BCCLA Police Reform, supra note 3 at 22.
IIO BC: Cases. (2016). Available online at: http://iiobc.ca/cases/>.
20
BC Coroner service: Inquest Schedule, Jury Findings and Verdicts (in subsequent footnote BC Coroner Services)
(2016). Available online at: http://www2.gov.bc.ca/gov/content/life-events/death-and-bereavement/coronersservice/inquest-schedule-jury-findings-verdicts>.
21
BCCLA Journal, supra note 7 at 5.
19
10
Coroner Service. For the most part, however, inquests have left families believing that the
coroner process fails as a meaningful forum through which to provide answers, let alone
accountability.22
Offices of Municipal Police and RCMP Complaint Commissioners23
a.
Professional Standards Investigative Agencies
Criminal investigations determine if criminal charges will be sought. They are
distinguished from professional standards investigations, which if substantiated, would lead to
internal disciplinary measures. Municipal police professional standards investigations are
overseen by the Office of the Police Complaint Commissioner (“OPCC”), and for RCMP, by the
Civilian Review and Complaints Commission (“CRCC”). The OPCC was established by the
Police Amendment Act (1997), as a response to the recommendations provided in the Oppal
Report.24 The report called for the OPCC to investigate all provincial police, however, the
RCMP remained outside the jurisdiction.25
b.
Municipal Police and RCMP Complaint Processes
In order for a conduct complaint to be considered, the complaint must contain allegations
of police misconduct as defined under the Police Act (“the Act”) and RCMP Act. They must not
be frivolous or vexatious; and the incident must have occurred within 12 months of the filing of
22
BCCLA Police Reform, supra note 3 at 9.
British Columbia Office of the Police Complaint Commissioner, (2016) Available online at:
<https://www.opcc.bc.ca/index.html>.
24
Police Amendment Act [RSBC 1997], c.37.
25
Oppal Report, supra note 1 at 43.
23
11
the complaint. The Commissioners merely determines whether or not it is admissible in
accordance with the Act.26
Officers working in their agency’s professional standards section of the police
department internally investigate complaints. For example, when a complaint is made against an
officer, that complaint will be investigated by the Internal Investigations Department at that
officer’s department. Depending on the findings and recommendations of the internal
investigators, the Chief of Police has the authority to take corrective action through disciplinary
proceedings. The Commissioners remain at arms length. They are responsible for reviewing the
decisions reached by the department after an internal investigation has been completed. If the
claimant is not satisfied with the result, the Commissioner can investigate further or hold a public
hearing.27
c.
Defining Misconduct
The Act defines misconduct as a breach of public trust. Offences include breaches that
constitute a conviction, breaches that would deem a member unfit to perform duties or discredit
the police department, including harassment, coercion, intimidation, obstruction of investigation,
abuse of authority, accessory to misconduct, corrupt practice, damaging property, deceit,
discourtesy, discreditable conduct, improper disclosure of information, misuse of intoxicants,
and neglect of duty.28 Section 7.1 of the RCMP Code of Conduct defines misconduct in broader
terms, requiring members to behave in a manner that is not likely to discredit the Force.29
26
A Step –By-Step Guide to the Municipal Complaint Process (2016) Available online at:
https://www.opcc.bc.ca/publications/printable_brochures/let_us_help_you.pdf>.
27
Civilian Review and Complaints Commission for the RCMP. Complaint and Review Process Flowchart (2016)
Available online at: https://www.crcc-ccetp.gc.ca/en/complaint-and-review-process-flowchart>.
28
Police Act (RSBC 1996) c. 367 (in subsequent footnote the Act) at s. 77(1).
29
Schedule 18 Code of Conduct of the Royal Canadian Mounted Police (2014) at s.18 and ss. 23(1) Available online
at: http://laws.justice.gc.ca/eng/regulations/SOR-2014-281/page-6.html#h-29>.
12
In February 2015, the OPCC provided disclosure of an investigation into the conduct of
Constable Christopher Nicholson of Abbotsford Police Department. Nicholson has been charged
with six counts of attempting to obstruct justice, three counts of breach of trust, and one count of
unsafe storage of a firearm, according to the B.C. Criminal Justice Branch. His trial date has
been set for May 26, 2016. In addition, 16 Abbotsford Police Department officers are currently
under investigation by the New Westminster Police Department for 148 allegations of
misconduct including breach of the Corrupt Practice, Deceit and Neglect of Duty.30 A large
number of these allegations relate to concerns with the integrity of statements sworn or affirmed
before judicial officers in which authorizations for search warrants were obtained. What is
concerning is the extent to which the search warrants in issue may have contributed to potentially
unsafe prosecutions.
d.
Misconduct as it Relates to Police-Involved Death
The Act requires departments to report all “reportable injuries” to the OPCC. Reportable
injuries include the death of an individual in the custody of the police, or where an individual
suffers injury related to excessive force, dog bites or motor vehicle accidents.31 Requiring the
reporting of reportable injuries to the OPCC could be favorable as some form of police
accountability. Unfortunately, however, as set out below, that requirement appears not to be
evenly enforced.
Police misconduct is publicly reported in the OPCC Annual Statistical Reports, except
for misconduct of reportable injuries and police-involved death. Of the 24 police-involved death
30
British Columbia Office of the Police Complaint Commissioner Media Statement (February 18, 2015) Disclosure
of Investigation Pursuant the Police Act. Available online at:
<https://www.opcc.bc.ca/media/media_release_docs/2015-02-18_Media_Statement_re_APD_2014-9474.pdf>.
31
The Act, supra note 28 at s. 89(1).
13
investigated by the IIO, nine involved municipal police officers. The Act required the OPCC to
investigate all nine municipal reportable injuries. It is not clear if that was done. What is clear is
that only five of the 15 RCMP files resulted in the CRCC Chair Initiated Complaint and public
report.32 Although the RCMP have a low number of discipline investigations resulting from
police-involved death, the misconduct at issue in those cases was at least previously open to an
open adjudication hearing, and decisions were made public. Since the Enhancing Royal
Canadian Mounted Police Accountability Act came into force in 2014, the RCMP Act no longer
includes any reporting requirement. The new Act also does not define “serious misconduct.” It
remains for the RCMP to determine if the misconduct should be dealt with at an internal conduct
meeting or a public adjudication hearing.33 It is concerning that, since the new Act came into
force, no RCMP involved deaths have resulted in a Chair Initiated Complaint investigation.
In 2013, municipal departments policed twelve municipalities in BC, and the RCMP
policed 63 municipalities.34 As the law holds, a citizen who is killed by a municipal officer will
have a complaint automatically initiated. A citizen who is killed by the RCMP, which is the
majority of police deaths in the province, will not.
The Berg case points out other fundamental flaws within the complaint process, leaving
little hope for families who seek to gain knowledge regarding the death. Following a 26-month
investigation, the Vancouver Police Department determined there was no evidence to support
allegations of officer misconduct. The internal investigation relied solely upon the statement of
the officer involved. Berg’s sister hired a private investigator to canvass the neighborhood for
32
3 of the 5 CRCC complaint investigations are concluded. Misconduct findings were not researched for the
purposes of this report. Available online at: < https://www.crcc-ccetp.gc.ca/en/completed-reports>.
33
Alison Crawford “RCMP Accountability Act Leads to More Secretive Proceedings, Lawyer Say” CBC News
(March 14, 2016. Available online at: <http://www.cbc.ca/news/politics/rcmp-discipline-behaviour-accountabilityact-1.3490768>.
34
Ministry of Justice, Police Services Branch. Police Resources in British Columbia (2014) Available online at:
http://www2.gov.bc.ca/gov/content?id=1C2AD44E34414E239D9EA4F1D8FF63EC>.
14
witnesses. That private investigator found witnesses who disputed the police version of events.
Two independent witnesses stated that they saw the subject officer repeatedly kick and an
unresisting Berg in the neck and head as he lay on the ground.35
e.
Issue Estoppel and Subsequent Civil Litigation
Naturally, questions might arise as to the impact of any preceding administrative law
process on subsequent civil litigation brought by a family in their pursuant to accountability and
answers. In Penner,36 the court held that a claimant should not be permitted to put the parties
through a duplicative proceeding that would yield the same result. It held that the difference in
standard of proof between an administrative tribunal and civil court is irrelevant. Yet, the
application of issue estoppel would mean the administrative decision would be final and binding,
and could foreclose efforts by families to pursue claim in civil court. What does the decision in
Penner mean for families who wish to pursue civil litigation against the police? Arguably, if
evidence does not support wrongdoing in the complaint process, which is more often the case
than not, a family may be barred from filing for civil litigation and hearing witness testimony.
This would be unfortunate for families, since complaints against the police can take years to
resolve, and appears to rarely be successful. When they are successful, they are not
compensatory or punitive in nature, nor do they often result in the firing of a police officer.
Rather, they are corrective and educative through the police department’s internal disciplinary
authority.37 In the circumstances, it might be prudent for counsel to advise their client that not to
file a complaint if they want to keep the option to litigate against the police.
35
PIVOT, supra note 6 at page 10.
Penner v. Niagara [2013] 2 S.C.R.
37
B.C. Reg. 205/98 Code of Professional Conduct Regulations (1998) at s. 19(2).
36
15
Access to Information and Privacy Law
The processes for requesting information from the municipal police are governed by the
Freedom of information and Protection of Privacy Act.38 The Access to Information Act protects
information requested by the RCMP.39 Families might believe that they can gain information by
filing an information request. However, this would be naïve. Neither Act includes provisions or
regulations that provide for the disclosure of evidence or investigatory information to families. In
actuality, the privacy provisions within the Acts heavily guard the police against requirements
for the disclosure of information.
While families should have a right to review the full police investigation file, no such
right is provided at law. Typically the next of kin or the executor of the deceased’s estate is the
only party entitled to gain access to the investigation file. However, they are often only privy to
their personal information, not other potentially pertinent and potentially inculpatory information
in the hands of the police. The appeal process will likely not yield further information disclosure.
If successful, whether at first instance or on appeal, families should expect to receive little more
than a list of provisions that protect against the release of information. The contents of
documents that are disclosed might be largely, if not entirely, redacted.
Civil Litigation
Some resort might be made to civil litigation as a means to find justice. For example, the
mother of Greg Matters filed a lawsuit against an officer who arrested her as the standoff
between her son and police unfolded on Sept. 10, 2012. Matters mother is reported to have said
38
Freedom of information and Protection of Pricy Act [RSBC 1996] Chapter165. Available online at:
<http://www.bclaws.ca/Recon/document/ID/freeside/96165_00>.
39
Access to Information Act R.S.C., 1985, c. A-1. Available online at: http://laws-lois.justice.gc.ca/eng/acts/a1/FullText.html.
16
that "[w]e believe it should have been investigated as a criminal case…We can now only pursue
this as a civil case…We're hoping for truth and justice…We want everyone to know the facts."40
Unlike the criminal process, a police officer can be compelled in the civil process to
testify, and have their credibility examined. A key benefit to litigation is that all relevant
investigation documents are disclosed, including many that could contain the information from
which the family seeks to gain closure. In the Matters’ case, that could involve information about
the nature of the training – or apparent lack – given to officers tasked with responding to
persons-in-crisis.
In the civil process, compensation can be awarded for the death of a family member. That
award may be dependent on the deceased’s income, and if they were supporting or had the
potential to support someone else. Regardless, civil litigation can be costly and take years to
resolve, causing much personal stress. Awards may not cover the full cost of the legal fees or
disbursements. Further, punitive damages are not available to a family affected by wrongful
death, pursuant to section 3(2) of the Family Compensation Act.41 Some lawyers may be
agreeable to taking on a case on a contingency basis. It is not expected that many would,
however, given lack of evidence in such cases and knowing that police legal counsel defend
aggressively. If the claimant is unsuccessful in the lawsuit, they may have a “cost award” made
against them by the court to pay back the government for some of the legal expenses incurred
defending the claim against the police.
40
Dene Moore, “Greg Matters Mother Suing RCMP for Shooting Her Son”, CBC News (September 9, 2013)
Available online at: http://www.cbc.ca/news/canada/british-columbia/greg-matters-mother-suing-rcmp-for-shootingher-son-1.2761312.
41
Family Compensation Act [RSBC 1996].
17
Accountability
'I don't feel there is any justice - justice would be [the officer] losing his job.'
Heather Prisk-Wright, March 10, 201642
According to Black’s Law Dictionary, accountability is defined as one party reporting its
activities and taking responsibility for them. It is done to keep the party honest and responsible.
For some, the benchmark of accountability may not be to ground a conviction. In the recent
settlement for the Prisk-Wright family, accountability would have meant the officer losing their
job.
The Honourable (Retired) Justice Mr. Frank Iacobucci stated that a goal of the criminal
justice system is the proper prosecution of an alleged crime, while being sensitive to the means
by which we pursue justice. Although the Charter produced many challenges in this respect, he
also stated that there is lots of room for improvement in specific cases and systemically.43
Iacobucci’s statement speaks to the rule of law as a basic tenant of parliamentary democracy.
However, to achieve true accountability, first principles of self-incrimination need to be
reconsidered in the interest of the public and for the benefit of the administration of justice
generally.
The recent case of Sammy Yatim demonstrates the important role of evidence in cases of
police misconduct. In January 2016, Toronto Const. James Forcillo was convicted of attempted
murder after firing two rounds and multiple shots that killed 18-year old Sammy Yatim. In the
Yatim case, video evidence was used to ground a conviction. If that evidence was not available,
42
Eric Rankin “RCMP Settles with Permanently Brain Injured Man, Robert Wright”, CBC News (March 10, 2016)
Available online at: http://www.cbc.ca/news/canada/british-columbia/robert-wright-terrace-first-nations-braininjury-1.3485547>.
43
Criminal Law Term Guest Lecture by the Honourable (Retired) Mr. Justice Frank Iacobucci (March 9, 2916).
18
or could not be compelled, officers such as Forcello would likely never be charged, let alone
convicted for an offence as serious as attempted murder. Consideration thus turns to the question
of whether evidence in the possession of the police – which might be critical to understanding
the circumstances of a killing but which also might be inculpatory of an officer – but compelled
by IIO investigators for the benefit of families and the pursuit of justice, notwithstanding the
privileges and protections against self-incrimination enjoyed by Canadians generally?
Independent Investigations Office BC44
a.
The Creation and the Purpose of the IIO
The IIO was formed following the Davies and Braidwood Commissions of Inquiry for
the reported purpose of restoring public confidence in the police investigatory process. It was
recommended that the provincial government establish a civilian-led investigative body,
modeled on Ontario’s Special Investigation Unit, (“the SIU”), to investigate all municipal police
and R.C.M.P related incidents of serious harm and death. The object of those investigations
would be to determine whether criminal charges should be laid against a police officer.45 In
response to these recommendations, the BC Government introduced the necessary amendments
to the Police Act, which received Royal Assent on June 2, 2011.46 The IIO became operational in
September 2012.
44
Parts of this discussion on the IIO were initially reported in a paper prepared for Professor Magnot in her Fall
2015 UVic law school course on civil liberties. The author acknowledges with gratitude the comments provided by
Professor Magnot on that work.
45
Braidwood Report, supra note 48 at 412.
46
Bill 12: Police (Independent Investigations Office) Amendment Act [2011]. Available online at:
<https://www.leg.bc.ca/Pages/BCLASSLegacy.aspx#%2Fcontent%2Flegacy%2Fweb%2F39th3rd%2F3rd_read%2
Fgov12-3.htm>.
19
b.
Mandate, Jurisdiction and Goals
It is the mandate of the IIO Chief Civilian Director, (“the CCD”) to determine whether an
officer “may” have committed an offence. He has described the goals of the IIO in carrying out
this mandate to include the conduct of competent, thorough and unbiased investigations, the
completion of these investigations in a timely manner, and transparency through public
reporting.47
The scope of an IIO investigatory jurisdiction includes incidents involving death or
serious harm. Serious harm is defined as an injury that may result in death, may cause serious
disfigurement or may cause substantial loss or impairment of mobility of the body as a whole or
of the function of any limb or organ.48 The Act 49 requires police to notify the IIO of all incidents
involving serious injury or death, and requires police to secure the scene of the incident until an
IIO Investigator arrives.
c.
Police Involved Death in BC: Statistics 2012-2016
Since the inception of the IIO, 24 police-involved deaths have occurred. Of the 24 deaths,
twenty files are closed. These are listed in Table 1 below. Theoretically, the file should only be
closed where evidence supports the exoneration of the officer. However, the law is unclear in
this area. The CCD previously stated that where there is not sufficient evidence to exonerate an
officer, a report to Crown Counsel would be made.50 The CCD also stated that when there is not
47
The IIO Mandate, supra note 51.
IIO BC (2016) (in subsequent footnote the IIO Mandate) Available online at: http://iiobc.ca/mandate/>.
49
The Act, supra note 29 at s. 38.09.
50
Testimony of Richard Rosenthal, before the Special Committee to Review the Independent Investigations Office
(in subsequent footnote Special Committee). Legislative Assembly, 40th Parl, 3rd Sess, in Report of Proceedings
[December 11, 2014] at 117.
48
20
sufficient evidence to either exonerate an officer or suggest a criminal offence has occurred, the
file would be closed. Preliminary research reveals that, to date, only four reports have been made
to Crown Counsel. Unfortunately, the contents of these reports are not publicly available. Nor is
the evidence relied upon by the Crown to decide not to proceed with charges.
Table 2: Total IIO Files of Police-Involved Deaths
September 10, 2012 to present
Death: Closed files (no RTCC)
In-custody death
MVI death
Self-inflicted death
Firearm death
CEW death
Other death
Total
Death: RTCC
MVI death
Firearm death
Other death
Total
Total IIO files involving death
9
3
1
4
2
1
20
2
1
1
4
24
Of the 24 police-involved deaths listed in Table 1, there were at least 32 subject officers
were involved. Of these, 11 subject officers declined interviews and 14 subject officers provided
written statements (some vetted by counsel). One file did not indicate if the officer provided any
information. Six subject officers provided interviews. In the result, it would appear that the vast
majority of officers are not making disclosure, either in whole or in part. The IIO reports reveal
that almost 80% of subject officers exercised what they perceive to be their Charter rights to not
be compelled, or to a right to speak with legal counsel prior to submitting police notes.
21
Based on the brief evidentiary descriptions in the closed files, 13 files were closed on the
basis of evidence contained in video footage, in the statement of the deceased prior to death, or
with the benefit of a finding that the cause of death was self-inflicted injury. Otherwise, and
alarmingly, in at least 11 of the 32 files, officers declined to provide oral or written statements,
officers talked to each other contrary to section 15 of the MOU, or there were no civilian
witnesses to the incident. For at least six files, it was difficult to determine if the evidence was
sufficient to support the closure of the file. Also of concern is the use of confusing and
inconsistent language in the reports of the CCD, particularly in relation to the evidence on which
conclusions were based. In some cases, it was difficult to understand if the CCD was exonerating
an officer based on sufficient evidence, or if there was simply a lack of evidence to support
referral to the Crown’s office.51 Arguably, the rationale behind the dispositions should be clear
and transparent.
e.
Charge Assessment Standard
The charge approval standard in British Columbia is such that the Crown must be
satisfied that there is a substantial likelihood of conviction on the available evidence and that
public interest requires prosecution. Otherwise, for conviction, there must be proof beyond a
reasonable doubt of all elements of the offence. The apparent lack of evidence in cases of policeinvolved deaths makes it difficult to meet either.
51
For example, “No reason to believe that any of the involved officers may have committed a criminal offence,”
“There is no evidence that any police officer may have committed an offence in relation to this death,” “I cannot
conclude that the subject officer may have committed any offence,” “Based on the evidence obtained as a result of
this investigation,” “No reason to believe that either officer may have committed any offence,” and “Based on all of
the evidence collected during the course of this IIO investigation and the law as it applies, the CCD does not
consider that any police officer may have committed an offence.” All of these expressions were drawn from files
where the subject officer exercised their Charter right not to be compelled.
22
g.
The Ontario Wood v. Schaeffer Model: Police Notes and Right to Counsel
In Wood v. Schaeffer, (“Schaeffer”), the Supreme Court of Canada was called upon to
determine whether the legislative scheme for police accountability in Ontario permitted witness
and subject officers to consult with counsel before completing their notes. The court held that
officers are not permitted to consult with counsel prior to the notes taking phase of the
investigation, however, they are free to consult with counsel once the notes are submitted to the
Chief of Police.52
Section 7(1) of the Regulations stated that every police officer is entitled to consult with
legal counsel or a representative of a police association and to have legal counsel or a
representative of a police association present during his or her interview with the Special
Investigations Unit. Section 9 of the Ontario Act provided that both witness and subject officers
have a duty to the Chief of Police "to complete in full the notes on the incident in accordance
with his or her duty". The court found that it would be wrong to interpret section 7(1) in a
manner that would contradict the broader duty imposed by section 9. Lawyer-vetted refinements
in the note-taking process would undermine the very purpose of an officer's notes, namely, to set
out the officer's independent and contemporaneous record of the incident.53 Further, the court
stated that permitting officers to consult with counsel before their notes are prepared “is an
anathema to the transparency that the legislative scheme aims to promote.”54
h.
The Legislative Scheme and the Memorandum of Understanding in British Columbia
In contrast to the Ontario’s legislative and regulatory regime is the British Columbia
52
Wood v. Schaeffer, 2013 SCC 71 (in subsequent footnote Schaeffer) at para 88.
Schaeffer, supra note 56 at para 71.
54
Ibid at para 6.
53
23
legislative regime. The Act is accompanied by the MOU that governs investigations by the IIO
of officers in the province.55 The legislative intent was clear in that the IIO was to build public
confidence in policing across the province.56 However, the regime is problematic, and falls short
of its stated goals, because it affords officers protections that undermine the legislative intent and
the operations of the IIO. Of particular govern is the fact that, in British Columbia, subject and
witness officers may consult with legal counsel prior to completing police notes, and the IIO
itself cannot compel officers to provide an account of the police involved death.
i.
Officer Duty to Cooperate
The IIO developed the MOU in cooperation with all of the police agencies in the
province, whom ensured that officers’ constitutional rights are protected.57 The Act states that
officers must fully cooperate with the CCD. Although witness officers are compelled to
provide notes and participate in interviews, the MOU states that subject officers will not be
compelled.58 Arguably, this part of the MOU derogates, or not wholly conflicts, with the duty
of cooperation set out in the Act.
The duty to cooperate plays a pivotal role in enabling the CCD to investigate police
incidents competently and thoroughly in the families’ and public’s interest. In the event the
subject officer is the only witness available, the duty to cooperate by providing notes of the
incident is arguably essential to ensuring that the CCD has adequate evidence to assess the
55
IIO MOU [signed February 12, 2013] (in subsequent footnote IIO MOU) at page 1. Officers include the RCMP,
Municipal Police Departments of BC, the Organized Crime Agency of BC, the South Coast BC Transportation
Authority Police Service and the Stl’atl’imx Tribal Police.
56
Legislative Assembly of British Columbia Hansard, 39 th Parl, 3rd Sess [May 26, 2011] at paras 1035, 1115, 1120
and 7452.
57
Testimony of Jamie Deitch, Executive Director of the Criminal Justice and Legal Access Policy Division, before
the Special Committee to Review the Independent Investigations Office, Legislative Assembly, 40 th Parl, 3rd Sess, in
Report of Proceedings [December 11, 2014] at 0935.
58
IIO MOU at s. 17.2, s. 17.4, s. 18. 2 and s.19.3.
24
allegations against the office.59 The Legislature’s Special Committee reported on police notes
in their final report, stating “…BC has dealt with issues related to police notes on critical
police incidents through provisions in a Memorandum of Understanding between the IIO and
police agencies.”60 The MOU includes words to the effect that officers' constitutional rights are
to respected and protected. To that apparent end, it specifies that subject officers are not
compelled to provide notes or participate in interviews.61
j.
Legal Counsel
Section 15(1)(d) of the MOU sets out that, in order to preserve the contamination of
evidence, officers are not permitted to discuss recollections of the incident directly to anyone
other than the IIO investigator. However, the MOU outlines exceptions, including the ability
for subject and witness officers to obtain advice from legal counsel or a police association
representative. In this way, B.C. law is out of step with the Supreme Court decision in
Schaeffer. Witness and subject officers should be prohibited from seeking legal advice until
after the note-taking phase of the IIO investigation. In Schaeffer, notes were found to be the
most immediate source of evidence relevant, and by allowing legal counsel to vet officer notes,
the Director was unable to rely on them for the truth of their contents to determine what
happened.62 Applying the Schaeffer rationale, allowing officers to consult with counsel is in
conflict with section 15(1)(d) purpose to preserve the contamination of evidence.
59
See also the Testimony of Richard Rosenthal, before the Special Committee to Review the Independent
Investigations Office (in subsequent footnote Special Committee). Legislative Assembly, 40th Parl, 3rd Sess, in
Report of Proceedings [December 11, 2014] at 1125 where he speaks to the issues of file referral where evidence is
insufficient.
60
Special Committee to Review the Independent Investigations Office, Legislative Assembly, 40 th Parl, 4th Sess at
10.
61
MOU, s 17, 18, 19, 20.
62
Schaeffer, supra note 56 at para 66 and 81. S. 10(b) of the Charter was not addressed in Schaeffer because the
main parties did not raise the issue.
25
Curiously, in his testimony before the Special Legislative Committee, the CCD stated
that officers do not consult with counsel.63 However, the records of the IIO show that officers do
consult with counsel prior to writing notes. IIO investigation reports provide that at least four
different officers have consulted with counsel.64 Obviously, in the interest of transparency, it is
critical that accurate accounts of investigations are portrayed to the public.
Another area of contention lies within section 15(1)(2)(3) of the MOU. As noted
elsewhere, it provides that officers shall not provide accounts of the events with anyone other
than the IIO investigator. The CCD stated that there was one incident of police possibly
corroborating, and they were dealt with accordingly.65 The measures taken to deal with officers
not adhering to MOU should likewise be publicly reported and strict disciplinary measures
should be taken against the officer if section 15 was breached. It bears note also that to prevent
conflict of interest, lawyers have a professional obligation to disclose each of their clients what
the others have told them. The practice of one lawyer representing multiple officers makes
section 15 of the MOU meaningless, and should likewise be avoided.
Compellability and Self-Incrimination
There is great opportunity through the work of the IIO to make accountability right for
families by providing them with the information required to know what happened to their loved
one. The IIO has the ability to restore the public’s faith in police accountability. However, as the
law stands, it cannot complete a competent investigation in the absence of adequate evidence. It
63
Special Committee, supra note 50 at 1110.
Independent Investigation Office Public Reports on Closed Investigations File numbers 2012-0002, 2013-000024
and 2014-000108. Available online at: http://iiobc.ca/cases/>.
65
Independent Investigation Office Public Reports on Closed Investigations File number 2013-01-0002.
64
26
is in the public’s interest that the IIO have the ability to acquire that evidence in order to
exonerate officers and otherwise hold officers accountable in cases of misconduct.
This is particularly important where misconduct on the part of police results in death. Our
community expects penal consequences for culpable homicide. For family, the more modest - yet
perhaps more important - objective is simply to know what happened. Access to justice should
not be different – let alone diminished - for those affected by police violence. Families and the
public have a right to have the courts deal with their interests in serious crime by officers, as they
do with the protection from other individuals in society causing the same harm.66
Yet does this justify a diminished privilege of self-incrimination for police officers who
use force in the course of their public duties? There is a compelling argument to be made that the
seriousness of police misconduct, and the interests of society in police accountability, justify a
departure from first principles and the creation of statutory compellability.67 In the Adams
report,68 it is said that statutory compellability would trigger the common law confession rule
due to the criminal nature of an IIO investigation.69 Interestingly, in Calder, two police officers
were charged following the production of their police statements. Although the statements were
excluded, Sopinka left open the possibility that they might be used for determining credibility
and other special circumstances, stating that, “I would however, not entirely rule out the
possibility in some very special circumstance.”70 The power to use deadly force against citizenry
66
CLT Guest Lecture by Robert Mulligan (February 18, 2016).
R v. Whittle (1994), 92 C.C.C. (3d) 11 (S.C.C.).
68
Consultation Report of the Honourable George W. Adams, Q.C. to the Attorney General and Solicitor General
Concerning police Cooperation with the Special Investigations Unit (1998) at page 69. Available online at:
<http://www.siu.on.ca/pdfs/the_adams_report_1998.pdf>.
69
An argument could be made that IIO investigations are not criminal in nature, and that the CCD’s authority does
not include the approval of criminal charges. The CCD distinguished IIO investigations by stating that he conducts
critical incident investigations, not criminal investigations. See Testimony of Richard Rosenthal, before the Special
Committee to Review the Independent Investigations Office (in subsequent footnote Special Committee). Legislative
Assembly, 40th Parl, 3rd Sess, in Report of Proceedings [December 11, 2014] at 105.
70
Calder at para 15.
67
27
should be one of the special circumstances. After all, the legislative intention of the IIO is to
determine if a criminal offence occurred71 Indeed, as the Supreme Court found in Schaeffer, in
this arena, public interest should be paramount. The Court stated, “…so long as police officers
choose to wear the badge, they must comply with their duties and responsibilities under the
regulation, even if this means at times having to forego liberties they would otherwise enjoy as
ordinary citizens.”72
The Court in Herbert stated that the Charter right to silence is not absolute and the
individual interest must be balanced with a legitimate public interest.73 Illustrations with respect
to the manner in which this balance might be struck are found in case law arising within the
regulatory arena. Notably, in Fitzpatrick,74 the Supreme Court of Canada decided that the
principle of self-incrimination did not require an accused to be granted use immunity against
subsequent use by the Crown of a report that hewas required by statute to file. However, in order
for the finding in Fitzpatrick to be applied in B.C., it is critical that police accountability
legislation and any regulations or memoranda of understanding developed under that legislation,
reflect the full breadth of the duty to cooperate. They must specifically require – not exempt police officers to submit notes within a reasonable amount of time and submit to an interview.
Conclusion
Listed in Appendix B is a summary of recommendation and issues for future research
arising from this analysis. Otherwise, it should apparent that affected families have little, if any,
meaningful recourse to information about the events that caused or might be contributed to the
71
Legislative Assembly of British Columbia Hansard, [May 26, 2011]. 39 th Parl, 3rd Sess.
Schaeffer, supra note 55 at para 32.
73
R v. Herbert (1990), 57 C.C.C. (3d) 1 (S.C.C.) at para 6 and para 46.
74
R v Fitzpatrick (1995), 102 C.C.C. (3d) 144 (S.C.C.).
72
28
death of a loved one at the hands of police. It is troubling that those empowered by our law to
investigate allegations of police misconduct, although better resources and enabled, are likewise
limited in their ability to access evidence from the polices involved. Whether that evidence takes
the more of notes or responses of interviews, and whether the object of the investigation is for
the prevention of future deaths or criminal prosecution, it would appear that our legal system
stands in the way of justice rather than facilitate it. It appears to fall short even in relation to the
most simple task of reporting just what was decided – and why - in any given case. One simple,
but admittedly controversial, answer might lie in the imposition of a statutory requirement that
subject officer be compelled to provide notes and participate in interview, even if the evidence
provided is inculpatory. Arguably, the interests of families and the public in police accountability
justify a departure from the principles and protections against self-incrimination otherwise
available to citizens under the Charter. To find otherwise potential immunizes police officers –
in whom great trust is placed – from prosecution and expose others in that way to great risk. As
the law stand, there is not even an attempt to balance these interests. Yet we recognize that no
one right is absolute. The challenge ahead is in crafting the right balance, in light of changing
technologies, changing attitudes about police conduct, and changing needs of vulnerable persons
in their dealings with law enforcement. Given the rights at stake, to do nothing is simply not
good enough.
29
Appendix A: Table of B.C. Coroner Inquests into Police-Involved Deaths75
Year
2007
2008
2009
2010
75
Type of Death
Police custody
Police custody
Police custody
Police custody
Police custody
Police custody
Police custody
Police custody
Police shooting
Police custody
Police custody
Police custody
Police custody
Police custody
Police pursuit
Police custody
Police custody
Police custody
Police custody
Police shooting
Police custody
Police custody
Police custody
Police custody
Police shooting
Police custody
Police custody
Police shooting
Police custody
Police custody
Police custody
Police custody
Police custody
Police custody
Police custody
Police custody
Police custody
Date of Death
Jun-07
June 20007
Jul-07
Aug-07
Aug-07
Sep-07
Sep-07
Nov-07
Nov-07
Nov-07
Adjourned
Nov-07
Dec-07
5-Aug-07
1-Aug-06
30-Aug-06
16-Aug-07
5-Aug-07
13-Aug-06
23-Aug-05
3-Jan-08
9-Jan-06
28-Aug-07
2-Sep-07
27-Dec-07
27-Oct-07
n/a
13-Oct-06
4-Feb-08
1-Jul-08
23-Mar-08
14-Mar-08
7-Dec-07
26-Jun-08
24-Nov-07
31-Jul-08
19-Jun-08
BC Coroner Services, supra note 20.
30
Name of Deceased
Robert Michael Ellis
Dwight Anthony Caron
Ian Bush
Michael Kelly Kurash
Ryan Mathew Bauer
Jay Douglas Louis
Christopher Jickels
Brent Andrew Abbott
John James Seguin
Derrick Patrick Madrusan
Donald Lewis
David Smelts
Colin Tremeer
Christopher Tom
Yau Tong Lam
James Bertholet
Michael Stein
Steven Qualtier
Donald Lewis
Kyle Tait
Percival Willie
Candice Pete
Larry McPherson
Daniel Hong-Ross
Chrispher Klim
Cecil McKenna
Duane Nelson
Daniel King
Laura Coward
Ryan Wagemans
Albert Prevost
Debra Coon
Daniel Serbeh
Cheryl Bouey
Robert Knipstron
Brandon Whitelaw
David Stitt
2011
2012
2013
Police custody
Police custody
Police custody
Police custody
Police custody
Police shooting
Police shooting
Police shooting
Police custody
Police custody
Police shooting
Police custody
Police custody
Police custody
Police shooting
Police shooting
Police shooting
Police custody
Police custody
Police custody
Police custody
Police custody
Police shooting
Police shooting
Police shooting
Police shooting
Police custody
Police shooting
Police shooting
Police custody
Police custody
Police involved
Police involved
Police custody
Police shooting
Police shooting
Police shooting
Police related
Police custody
Police related
Police custody
19-Oct-08
27-Jun-09
7-Feb-08
4-Aug-09
8-Aug-08
rescheduled
13-Aug-07
1-Mar-09
30-Sep-08
12-Jul-09
15-Jul-09
14-Jul-10
9-Jul-10
18-Sep-09
23-Oct-09
30-Sep-09
26-Sep-09
19-May-10
21-Nov-09
28-May-10
23-Aug-10
22-Jun-10
Sep 18. 2009
7-Aug-10
10-Jan-10
20-Mar-09
19-Jan-09
30-Jul-10
22-Jun-11
Au 15, 2010
3-Jan-11
31-Jan-11
16-Jul-11
2-Jul-11
2-Mar-11
3-Mar-11
24-Sep-11
10-May-11
9-Sep-11
10-May-11
30-May-12
31
Ian Young
Kevin Vigar
Alexander Walker
Stanley Cardinal
Christine Miller
Rodney Jackson
Paul Poyd
Derek Welson
Frank Frechette
John Rice
Kenneth Baines
Jerry Burke
Jason Diffner
Marvin Asmunt
Jeffery Hughes
Valeri George
Rodney Jackson
Ropinder Gil
John Gibbone
Gordon Amyotte
Laurent Parrouty
Bikermanjit Singh Kooner
Eugene Knite
Alvin Wright
John Wilcox
Michael Hubbard
George Jones
Wilbert Bartley
Darrell Barnes
Brandt Zimmer
Colan Kohalyk
Ashley Guiboche
Leslie Smears
Christopher Kampman
Adam Purdie
Brenden Beddow
Justin Zinser
Patrick Wilder
Bretton Lohouse
Patrick Wilder
Angus Mitchell
2014
2015
2016
Police custody
*Police shooting
Police custody
Police related
*Police shooting
*Police shooting
Police custody
*Police custody
*Police shooting
*Police custody
*Police custody
*Police shooting
*Police shooting
30-Dec-11
10-Sep-12
22-Apr-12
16-Jul-11
29-Oct-12
31-Jan-13
10-Aug-12
13-Feb-14
17-Jan-14
10-Sep-13
31-Jul-14
23-Dec-14
18-Nov-12
Total police
involved
death
inquests
91
32
Surinder Malhi
Greg Matters
Jeremy Richardson
Kyle Vandenberg
Christopher Ray
Ryan Jacob
Steven Scott
Gerg Lloyd
Gaetan Plante
Alyssa George
Ernest Moosomin
Cheryl Cowan
Mehrdad Bayrani
Appendix B: Summary of Recommendations and Issues for Further Study
1.
Amend the MOU to prohibit witness and subject officers from consulting with counsel
during the note-taking phase of the investigation.
2.
Amend the MOU in order for it to be consistent with s. 38.101 of the Act. Require subject
officers to fully cooperate with the IIO.
3.
Amend the MOU to require witness and subject officers to have a duty to prepare
complete notes, and submit them by end of day to the Chief of Police, as required in
Ontario by Regulation s.9(2).
4.
Amend the MOU to require officers to consult with separate legal counsel once their
notes are submitted within 24 hours after the death, as required in Ontario by Reg. 7(3).
5.
Amend the Act to require mandatory public reporting, and to require that the CCD
disclose public reports.76
6.
Report on the public record, strict disciplinary measures taken for officers who breach the
MoU.
7.
Legislate IIO authority to investigate reportable injury complaint investigations against
both municipal police officers and RCMP officers.
Question to Explore Further IIO77
1.
Pursuant to s.7 of the Charter, could an argument to me made that the independent
agencies and the police cause family members state imposed psychological harm? Can
imperial evidence be collected from family members and used in support the legal
argument?
2.
How can police training play a role in preventing deaths against persons in crisis, and
what would that training look like?
3.
What are the implications behind implementing officer worn body cameras in BC?
What best practices can be taken from other provinces and countries who use the
technology?
76
77
Public reporting is currently not required by the legislation.
Topic warrant further investigation, however fall outside the scope of this paper.
33
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