Former Oversight Director Says Police are “Ungovernable”: Hamilton Cops Do Not Report Killing of Chokha Bayez (20)

As this project has detailed repeatedly police across Canada act largely as they wish in investigations into the harms they inflict on civilians. This includes not even reporting those harms.

In September of 2016 a Hamilton police officer was involved in a vehicular pursuit that killed 20-year-old motorcyclist Chokha Bayez. Yet the Hamilton police broke the law and never reported the killing by the officer to the Special Investigations Unit (SIU) as they are required to do. Every police service in Ontario is legally mandated to notify the SIU immediately of any incidents of serious injury, allegations of sexual assault, or death involving their officers (Carter 2017).

An SIU investigation into the Hamilton police killing of Bayez was only initiated when the victim’s family contacted the unit a month after the crash. This is an unacceptable delay that further serves to interfere with any proper investigation. As judge Michael Tulloch put it is his report on oversight in Ontario: ”In most cases, the SIU depends on the police notifying it of incidents within its mandate. Prompt, thorough police notification is the starting point for effective, efficient SIU investigations. If the police take too long to notify the SIU of an incident, or fail to do so at all, any investigation may be compromised and justice may not ever be done” (quoted in Carter 2017).

Furthermore, the investigation is not even listed on a Hamilton police report of SIU investigations presented to the police board earlier in April 2017 (Carter 2017). Constable Steve Welton told the Canadian Broadcasting Corporation (CBC) that the incident was included (despite saying he could not comment on the case and failure to report to the SIU). Oddly, according to the CBC, no vehicular death can be found in the police board report (Carter 2017). CBC News only became aware of the SIU investigation as a result of a freedom of information request listing all of the SIU’s investigations into Hamilton police officers from 2016 (Carter 2017).

As we have documented consistently in this project there is no proper independent oversight of police and no mechanism is used, legal or otherwise, to ensure there are any negative consequences for officers and police forces who fail to comply with investigative policy and requirements. Even where they violate or flaunt the law.

SIU spokesperson Monica Hudon told CBC News: “If the SIU Director is of the view that there may have been a breach of the regulation, and no charges are laid, it has been the Director’s practice to notify the Chief/Commissioner of his concerns in order that they may be reviewed” (quoted in Carter 2017). Of course the chief is under no obligation to act and it is unsure if such notice has even been given in this case.

André Marin, a former Ontario ombudsman and past SIU director, is clear in stating that under current conditions there is nothing to stop police from acting like this whenever they so choose. In his words: “Because there are no consequences, police can be extremely lax. They have proven themselves to be ungovernable” (quoted in Carter 2017).

Marin has a stark assessment of police services boards as well. In his view, while they could push for oversight:  “Police services boards should be vigilant and hold their feet to the fire — but they don’t care either. There is absolutely no excuse for this” (quoted in Carter 2017).

Again, the police are a law unto themselves. And the state always protects the state.

 

Further Reading

Carter, Adam. 2017. “Hamilton Police Broke the Law and there were No Consequences.” CBC News. April 25. http://www.cbc.ca/news/canada/hamilton/hamilton-police-siu-1.4083410

ASIRT Again Clears Cops Despite Finding “Procedural Errors” Led to Prisoner’s Death

The Alberta Serious Incident Response Team (ASIRT) the provincial body that investigates incidents of police harm to civilians in the province, is quickly developing a reputation for letting cops off on flimsy grounds when they are involved in civilian deaths.

On Friday, April 21, 2017 ASIRT announced that no officers from the Tsuut’ina Nation Police Service (TNPS) would be charged after a 25-year-old man in police custody apparently killed himself. This despite the fact that the ASIRT investigation found that the force did not follow the “specific protocols [which] were in place” for times when the man, who was known by police, was taken into police custody. According to the ASIRT ruling said “procedural errors” were made and the man was left unsupervised, which protocol said he should not have been “resulting in a sufficient amount of time to commit suicide” (ASIRT).

The man had been arrested on February 17, 2015, supposedly for intoxication and a complaint about his presence at a residence. So once again police were called to address a health care issue and the result is a civilian death.

ASIRT, which has an apparent habit of offering bogus excuses for officers and forces involved in civilian deaths, such as the dubious “excited delirium” claim, this time went one better. Their report attributed the man’s death to the vague and rather unscientific explanation of a “perfect storm” resulting in the man’s death. Surely this is clearly an ideological or copaganda mystification that excuses the officers involved for their own active choices and actions, the committing of procedural errors, and the role those played in contributing to the death. Yet the “perfect storm” means even a consideration of something like negligence is nullified. To the benefit of the police officers responsible.

ASIRT said in a statement that: “This case, however, should remind officers of the duty of care they undertake when exercising custody or control of another person” (ASIRT). Yet there is no mechanism to go beyond the occasional reminder when the investigative body keeps providing excuses to get cops off when civilians die in their custody.

Similarly,  in a statement, Chief Keith Blake of the TNPS said: “The Tsuut’ina Police remain absolutely committed to the highest levels of care for those persons in our care and custody” (Statement). Yet this case shows the lack of commitment to even basic standards of their own protocol. So one might well ask what it is they remain committed too.

 

Hamilton Police Do Not Bother Reporting Vehicular Killing to SIU as Required by Law

We have repeatedly commented on the lack of real, independent oversight of police agencies at all levels across Canada on this site. This relates both to the absence of true autonomy and independence but also to the lack of transparency within oversight agencies and their incapacity to hold police accountable for obstructing and blocking investigations, not cooperating with investigations, or violating policies and requirements for reporting incidents of harm to civilians.

Information secured by the Canadian Broadcasting Corporation (CBC) through access to information requests shows that police forces do not necessarily even report cases where their officers have killed a civilian. In this local case the Hamilton Police Service did not notify the province’s Special Investigations Unit (SIU), regarded as the “gold standard” for oversight of police globally, about a vehicular killing involving police in Hamilton in September 2016. The collision on September 3 killed a 20-year-old male, Chokha Bayez. Incredibly an investigation was only launched into the incident when the victim’s family approached the SIU almost one month after the crash.

SIU spokesperson Monica Hudon said in response to questions from CBC that the vehicle death listed in the FOI response was not publicized by the SIU simply because Hamilton police did not tell the agency about it. Yet all Ontario police services operate under a legal requirement to immediately notify the SIU of incidents of serious injury, allegations of sexual assault, or death of civilians in which their officers are involved. Furthermore the vehicular killing is not even listed on a police board report of SIU investigations presented at the Hamilton police board in April of 2017. Clearly the Hamilton Police Services view themselves as well above the law, as do police forces across the country. They are a law unto themselves as we have long known.

Ontario Attorney General Yasir Naqvi has committed to publishing the details of every police-involved fatality dating back to 1990, when the Special Investigations Unit was established, as per the recommendations of the recent report on police oversight undertaken by Justice Michael Tulloch. SIU investigations are kept secret even from the families of victims. The Tulloch report also recommended that oversight agencies start collecting demographic data including race and religion, currently not maintained systematically in Canada. The report also recommended that oversight bodies release detailed reports whenever a police officer is cleared of wrongdoing. At the same time, police officers involved in deaths or serious incidents will not be identified unless they are charged, as is current, bad, practice.

 

Further Reading

Carter, Adam. 2017. “4 Times Hamilton Cops were Investigated for Sex Assault and the SIU Said Nothing.” CBC News. April 20.  http://www.cbc.ca/news/canada/hamilton/siu-sexual-assault-allegations-hamilton-police-1.4077303

 

Bogus “Excited Delirium” Excuse Gets Killer Cops Off for 2015 Alberta Death

The finding of “excited delirium,” which makes its primary appearance in medical contexts usually only ever as justification for police killings of civilians, is an ideological tool used to excuse lethal police force. It has been used by police forces as a way to simultaneously blame victims for their own killings and give killer cops an answer where no real answer exists.

This dubious piece of copaganda has been offered up once again in Alberta to excuse Edmonton Police Service officers who killed a 25-year-old man on April 29, 2015. This despite well established debunking of the notion of excited delirium. The Alberta Serious Incident Response Team (ASIRT) offered the excited delirium defense in findings released on April 18, 2017, two years after the young victim died after being subjected to force by multiple officers while in police custody.

Sadly, the victim was targeted by police for the trivial act of supposedly trespassing in the City Centre Mall after nervous security staff called them. The security staff had tweaked to him because they suspected him of being under the influence of alcohol or drugs. So an effort at moral regulation by private security ultimately resulted in a young man having his life taken by police. The ASIRT report added to the moral regulatory approach by suggesting the man had been uncooperative with police, saying he refused to follow directions.

For many police officers refusing to follow directions is an invitation to a beating or worse an extrajudicial execution. In this case ASIRT reports that at least four officers used force on the man supposedly to get him into restraints. After being violently removed from the mall and taken into Downtown Division the man was placed on the floor in the detention area. At this point Edmonton Police Services officers noticed he was unconscious, and in medical distress. Paramedics took the man to hospital but he could not be stabilized and was declared dead there.

Notably, the ASIRT reports makes clear that the man was acting in a way that suggested both to private security and police that his issue was health related not criminal. According to the ASIRT release the man “exhibited bizarre behaviour” (ASIRT). The report continues: “He was observed twisting and attempting to pull away. He was observed to be breathing heavily, mumbling and yelling, mostly incoherently” (ASIRT). Yet the intervention was, once again, repressive violence and thuggish force rather than health care.

This is a case in which private security and police intervene against someone who is, at most, dealing with substance abuse issues. Police should not be intervening in this situation. Yet they do so with force. And when force becomes lethal they turn to “excited delirium” in an attempt to justify the unjustifiable. And it routinely gets them off. And mainstream media repeat the claim uncritically.

 

Death by Delay: Police Stonewall Investigations into Killer Cops

The notion of independent oversight and investigations of police in Canada is a myth. Police have numerous methods for interfering with and obstructing investigations, derailing and diverting them to ensure charges are never brought against officers who kill and the identities of killer cops remain hidden. Among the effective ways in which police forces, killer cops, and their colleagues have frustrated victims’ families and the public more broadly is through various delay tactics such as not releasing information, asking to see incident video before filing reports, and non-cooperation on all levels with investigators. And there is nothing investigative units can do about it within existing frameworks. As the saying goes, “justice delayed is justice denied” even in the state’s own terms  (but one should never expect the same system that police are part of to deliver anything resembling justice).

This has a real impact. In addition to leaving grieving loved ones desperate for information, it has the material legal impact of ensuring that charges cannot be brought in a timely manner. Thus trials cannot start in a timely fashion and, as a result, even when officers are charged their lawyers can get charges dropped on the basis of undue delay. A nice set up.

At this point investigative units have no mechanism to compel police forces and officers to cooperate in a meaningful manner with investigations. That is they have no legal mechanism to acquire needed information, including notes from involved officers, and no enforcement mechanism to hold recalcitrant officers to standards of cooperation. They, furthermore, have pursued no legal means to charge uncooperative officers or their managers.

 

Delay in British Columbia

As one example from British Columbia, the grieving family of Myles Gray has waited almost two years for even basic details and some answers about the killing of their loved one by police after being trapped in a backyard. They have not received any. Gray’s parents have not even been told how he died. Brutally they have only recently learned that the IIO’s work has been delayed because the officers involved are refusing to give any more statements (Lindsay 2017).

The Independent Investigations Office (IIO) is notoriously behind in its investigations taking unacceptable amounts of time to conclude reports, even by their own admission. The IIO currently has 12 open death or severe injury cases involving Vancouver police (Lindsay 2017).

The level of obstruction and non-cooperation exercised by the Vancouver Police Department and the IIO recently resulted in a legal challenge from the investigative body. In March of 2017 Bert Phipps, the IIO’s interim chief civilian director, filed a petition in BC Supreme Court to rule in the fatal shooting by police of Daniel Peter Rintoul in 2016. An incredible total of seven officers who witnessed the killing have refused to be interviewed by the IIO in that case. In that case the officers are making the ludicrous demand that they be allowed first to watch cellphone and security-camera video footage of the shooting before giving any statements.

Watching video ahead of time would clearly distort officers’ views of overall events, a position reinforced by virtually all available research on the matter. Psychological studies conclude that watching video of an incident may distort officers’ memories of events that took place off-camera (Lindsay 2017). Recognizing this, in 2016 the civilian heads of each investigative unit in Canada signed on to a model policy agreeing that police officers watching video prior to providing a statement would “almost inevitably influence a witness account and diminish its investigative value” (quoted in Lindsay 2017). Their policy recommends instead for a two-stage interview process, where witness officers may be allowed to watch video only after giving an initial statement and then clarify their evidence (Lindsay 2017).

The court process is itself a slow one that could stretch over years. A similar case involving a lack of cooperation by a Vancouver officer with the Office of the Police Complaint Commissioner was not resolved until 20 months after filing of the first petition. In that case, only decided in 2017, a judge ordered the constable to attend interviews with investigators (Lindsay 2017).

 

Situation Dire in Ontario

The situation involving investigations is dire in all of the larger provinces (where there are more cases of police lethal use of force) and particularly acute in Ontario and British Columbia. The Special Investigations Unit (SIU) in Ontario is the oldest such unit in the country and is viewed as the “gold standard” for such units, achieving even a global level of recognition. Yet its own record over the last few years is troubling. According to the unit’s annual report, ironically delivered nine months late, a mere 28 percent of cases wrapped by the SIU in 2015 were completed within 30 business days. That is a decline from the 33 per cent wrapped within the same time frame in 2014 (Toronto Star 2017). Those numbers are both a steep drop from the nearly three-quarters of cases wrapped within 30 days in 2012 and 2013. And it should be pointed out by those, like investigators in British Columbia who point to high case loads, 2012 and 2013 were years in which the SIU had comparable or significantly higher new case loads than in either 2014 or 2015 (Toronto Star 2017). The SIU has recently claimed that it will not even continue to achieve its internal goal of 30 days for investigations because of the difficulties faced in pursuing cases now. One can surmise that much of this difficulty stems from the obstruction and non-cooperation of police forces, associations, and officers.

As it stands there is no hard deadline for the SIU for completing investigations. They can take as long as they like. A report commissioned by the government in Ontario and undertaken by Michael Tulloch, a judge with Ontario’s appeal court, has initiated some limited rethinking of these issues. The Tulloch report recommends a set deadline for the SIU of 120 days. He further suggested that where that is not met the unit must report to the public at that point with additional reports every 60 days they go over from there. Tulloch also recommended ensuring that notes prepared by any officer who is the focus of an investigation be provided to the unit directly, before the SIU even gets involved in a case.

 

It is Already a Violation of Law but Stalling Officers are Never Charged

Perhaps the most significant recommendation on the issue of timeliness and responses from officers would  be a law allowing the SIU to charge an officer with a provincial offense for failure to co-operate with an investigation. In the words of the Tulloch report: “The legislation should include a provincial offence for failing to cooperate with an SIU investigation punishable by fine, imprisonment, or both” (quoted in Toronto Star 2017).

While police forces, associations, and officers will still hold tremendous power, and have numerous ways to engage in obstruction and harassment, this would provide some mechanism to encourage timely access to information and some level of accountability.

Richard Rosenthal, the former chief civilian director of the IIO in British Columbia, commends the Tulloch recommendation. In his words: “The legislation would be an added benefit to provide the IIO with the ability to administratively charge or even criminally charge a police officer for failure to cooperate, or obstruction” (quoted in Lindsay 2017). Rosenthal, though, notes that the police chief of each force already has a responsibility in this. According to Rosenthal: “But the reality is that today, the chief of police can order the officer to cooperate and should do so” (quoted in Lindsay 2017).

Indeed under British Columbia’s Police Act, officers must “cooperate fully” with IIO investigations. Yet emails filed as part of a 185-page affidavit in the court case show that the police are trying to obstruct even on the meaning of the word “cooperate.” According to the Vancouver police association Lawyer Kevin Woodall: “From the union perspective, cooperation is a two-way street where parties attempt to work through contentious issues in a reasoned, principled manner” (quoted in Lindsay 2017). In response IIO counsel Martin Allen replies: “Ah, Kevin, we do disagree about so much. The duty to cooperate … is obviously not some nebulous duty to ‘attempt to work through contentious issues in a reasonable, principled manner.’ It is a duty to ‘cooperate fully’ with an IIO investigator” (quoted in Lindsay 2017).

This view is echoed by the BC government.  According to Donna Sitter, a spokeswoman at the Justice Ministry, the responsibility of police officers is clear. In her words: “Our view is that the legislation is clear and requires police officers to cooperate fully with IIO investigations” (quoted in Lindsay 2017).

So the issue is one of police violations of the existing laws already. Yet, despite this, nothing is being done to hold obstructing officers, at any level, accountable legally. One might well ask why not. And find an answer in the nature of the state and state violence itself.

 

Conclusion

As of April 2017 the investigative units do not even release detailed reports to the public in cases where the involved officer is not charged. That may change in Ontario as the provincial Attorney General Yasir Naqvi promised to immediately make public all Special Investigations Unit (SIU) reports in cases where no officer faces charges. This announcement was made in response to the Tulloch report on police oversight.

Sadly, in attempting to ingratiate itself with police forces and officers the IIO has provided a record of its own futility. IIO communications director Marten Youssef has made the point of highlighting, as if to reassure killer cops, that while the agency has been notified of 1,250 police-involved incidents since its inception in 2012, only a few have met the agency’s mandate to investigate death or severe injury related to officers’ actions (Lindsay 2017). Of the 139 cases that the IIO has pursued and wrapped, only 65 were referred to Crown counsel for consideration, and only a miniscule total of 10 have ended in charges. Four of those did result in guilty pleas while two were stayed. Two ended in acquittals and another two are still pending (Lindsay 2017).

Regardless of timeline these are not numbers to suggest that grieving family members and friends of people killed by police will see anything resembling, justice or accountability. And this is not overly surprising. In the end the state is very competent in protecting the state, particularly its monopoly on violence.

 

Further Reading

Lindsay, Bethany. 2017. “Vancouver Cops, BC Investigations Agency Lock Horns over Cooperation.” Vancouver Sun. April 16. http://vancouversun.com/news/local-news/city-cops-b-c-agency-lock-horns-over-cooperation-as-ontario-mulls-jail-time-for-officers-who-wont-answer-questions

Toronto Star. 2017. “Speed Up Investigations by Police Watchdog: Editorial.” Toronto Star. April 17. https://www.thestar.com/opinion/editorials/2017/04/17/speed-up-investigations-by-police-watchdog-editorial.html

ASIRT Stats Show Large Increases in Police Violence, Lethal Force in Alberta

Statistics released by the Alberta Serious Incident Response Team (ASIRT) show a troubling steady increase in major police-involved incidents of violence, including police killings of civilians over the last decade.

In 2008, the year ASIRT began operations there were 10 cases of police violence that resulted in death or serious injury. In 2016, there were 42 such incidents. These include a range of police actions: police shootings, vehicle pursuits and collisions, use-of-force incidents with no weapon, and injuries caused by use of tasers and police dogs. The ASIRT statistics show nine police shootings that caused death or serious injury in 2013, 10 in 2014, 13 in 2015, and nine in 2016.

As of mid-April, 2017 there are nine police-involved incidents of death or serious injury under investigation in the province; three in Edmonton, three in Calgary, and three in RCMP jurisdictions. Of the three fatalities, one was in Edmonton, involving the Edmonton police department and the other two were RCMP cases. Edmonton has had three police shootings of civilians in March 2017 alone. One was the fatal police shooting of Vitaly Savin, a 55-year-old construction worker with no criminal record, who was targeted by police simply for supposedly driving erratically.

 

Police Incidents Involving Death or Serious Injury (By Year)

Year       Incidents

2008       10

2009       20

2010       18

2011       25

2012       18

2013       27

2014       31

2015       48

2016       42

 

Calgary police had a brutal year in 2016. The Calgary Police Services were responsible for a total of 10 police shootings that year. This stands as the highest total of police shootings of any city in the country. Five of the shootings were fatal and two caused injury. To his discredit the Calgary Police Chief Roger Chaffin has threatened retribution against whistleblowers in the department who speak to media and has blamed the police violence on a drug panic of his own creation.

Edmonton’s Acting Chief Kevin Brezinski has tried to blame a vaguely constructed “organized crime” and strangely a supposed increase in home invasions. It is not clear how this would have anything to do with his force’s killing of Vitaly Savin for supposed erratic driving.

Anthony Heffernan’s Family Files Lawsuit against Killer Cop McLoughlin and Calgary Police Service

As has been documented numerous times on this site the families of people killed by police in Canada are routinely denied even basic information about the police actions in which their loved ones were killed. This includes information about the officers directly responsible for the killings. The situation is not addressed through provincial investigation units since killer cops are not required to provide statements to such units and, of course, typically choose not to.  Thus families are left with no recourse but to file lawsuits against killer cops and the forces that protect them in order to gain even basic insights into the events that took their loved ones’ lives.

The family of Anthony Heffernan, killed by a multiple killer cop two years ago, has had to take the route of a lawsuit against the Calgary Police Service (CPS) in an attempt to find answers that have so far been denied to them. They also hope the lawsuit will result in changes to the department and prevent similar killings. The lawsuit is seeking $225,000 to cover the cost of Anthony Heffernan’s funeral, lost wages, and grief counseling required by the family. In August of 2016, the Heffernan family found out that the officer who killed Anthony would not face any charges. A statement of claim in the lawsuit argues there “was an excessive and unlawful use of force” in Anthony Heffernan’s killing. In the lawsuit the family also claim that some or all of the service members involved in the incident created notes and reports that were “false, misleading, containing omissions or exaggerations” (quoted in Potkin 2017). The family is also appealing the decision not to bring charges.

Anthony Heffernan was tasered and shot four times and killed by an officer after police broke into the hotel room in which the young man was staying in the city’s northeast in March 2015. All of this happened within 72 seconds of police entering the room (Potkins 2017). He was alone in the room and posed no threat to anyone outside the room, certainly he posed no threat to the public. He did not leave the room and posed no threat officers or anyone else in the hallway. The officer who killed Anthony Heffernan was not suspended and killed another man while on duty only a few months after the Heffernan killing.

Grant Heffernan, Anthony’s brother, explains the lawsuit as follows: “The point is we want is police accountability for their actions. It’s not about the money. It’s about hopefully going to trial and getting unanswered questions that we’ve had from the beginning” (quoted in CTV 2017).

The defendants listed in the lawsuit include former interim police chief Paul Cook along with five CPS members. Four of the officers are identified as John Doe while one officer is identified as Constable McLoughlin (no first name), said to be the killer cop. Patrick Heffernan, Anthony’s father, notes that police have never identified who the five officers at and the family only learned the surname of the killer cop McLoughlin through ASIRT (Potkin 2017).

In yet another of the numerous cases in which the courts protect killer cops, the Alberta Serious Incident Response Team (ASIRT) ruled that there was potential for charges in the killing of Anthony Heffernan only to see prosecutors not bring charges because they were of the view that there was  “no reasonable likelihood of conviction” (Potkins 2017). ASIRT concluded that Heffernan had his hands in the air at the time police shot and killed him.

The Heffernan family notes, with disappointment, that while the ASIRT investigation included statements from four of the officers in the room when Anthony was killed it did not include statements from the officer who killed their loved one. While they, like other family members of victims of police killings, cannot believe this was not part of the investigation it is, in fact a protection all killer cops enjoy.

The family hopes that the civil suit will finally ensure that the officer provides a first-hand account of why he shot Anthony multiple times.

 

Further Reading

CTV. 2017. “The Family of a Man Shot and Killed by Police is Suing Calgary Police” CTV News Calgary. April 11. http://calgary.ctvnews.ca/the-family-of-a-man-shot-and-killed-by-police-is-suing-calgary-police-1.3364792

Potkin, Meghan. 2017. “Anthony Heffernan’s Family Suing Calgary Police.” Calgary Herald. April 10. http://calgaryherald.com/news/local-news/heffernan-family-suing-calgary-police-for-more-than-40000-after-fatal-shooting

Judicial Review Sought over Dropped Charges in Case of Killer Cops Patrick Bulger and Mathieu Boudreau

Courts in Canada have consistently protected police officers who kill against prosecution. Usually charges are not laid and in other cases charges are dropped after it is decided there has been too long a delay in bringing the officers to trial. The state determinedly protects the state. In the case of the killing of Michel Vienneau by Bathurst police officers Patrick Bulger and Mathieu Boudreau in 2015 a judicial review is now being sought after a provincial judge Anne Dugas-Horsman decided earlier in 2017 not to bring the officers to trial. They had faced charges of manslaughter. The judge’s decision was roundly criticized and shocked family and friends who then initiated a petition calling for a review.

On January 12, 2015, 51-year-old Michel Vienneau of Tracadie, New Brunswick, was shot and killed by Bathurst Police Force Constable Patrick Bulger (38) and Constable Mathieu Boudreau (26) under highly dubious circumstances. Vienneau was shot as he left the Bathurst VIA Rail train station following return from a trip to Montreal with his partner Annick Basque. The officers were supposedly responding to accusations against the couple through an anonymous Crime Stoppers tip. A subsequent investigation by RCMP found that neither Vienneau nor Basque were involved in any criminal activity and neither were carrying drugs as the tip claimed.

On Tuesday, April 11, 2017 it was announced that New Brunswick’s public prosecution services is seeking a judicial review of Provincial Court Judge Anne Dugas-Horsman’s decision not to proceed to trial in the case. Judge Dugas-Horsman ruled in February 2017 that there was not enough evidence to take the officers to trial.

According to spokesperson Sheila Lagacé in a prepared statement: “Public prosecutions services is of the opinion that the judge at the preliminary hearing failed to consider all of the relevant evidence and thereby committed a jurisdictional error” (quoted in Yard and MacKinnon 2017).

Judge Dugas-Horsman had ruled that the prosecution failed to meet the threshold that both accused officers engaged in an illegal act when they killed Vienneau. The public prosecutions services wants a Court of Queen’s Bench justice to review that decision.

The Court of Queen’s Bench could uphold the decision of the provincial court or officers Bulger and Boudreau could be committed to stand trial following the review (Yard and MacKinnon 2017). The review will be based on information already on record.

According to defense lawyer Lutz this is “a highly unusual manner of proceeding” (quoted in Yard and MacKinnon 2017). He suggests that it is, in fact, the “first time he has heard of a judicial review in this type of situation in years” (Yard and MacKinnon 2017). It is, however, the only way to appeal a preliminary inquiry decision which can not be appealed in regular procedures because it is “an interim of a court process” (quoted in Yard and MacKinnon 2017.

Of note, public prosecution services is somewhat independent and does not act on direction from the provincial government in carrying out its responsibilities (Yard and MacKinnon 2017).

 

Further Reading

Yard, Bridget and Bobbi-Jean MacKinnon. 2017. “Judicial Review Sought of Decision Not To Try Police in Bathurst Shooting Death.” CBC News. April 11. http://www.cbc.ca/news/canada/new-brunswick/bulger-boudreau-vienneau-bathurst-judicial-review-1.4065361

Edward James Waddell (40) Dies in Kelowna RCMP Holding Cell (April 1, 2017)

On April 1, 2017, Edward James Waddell (40) died while in RCMP custody in a Kelowna jail cell. RCMP claim officers responded to a single-vehicle crashing into a tree on McCulloch Road at around 5:15 PM on Friday, March 31, 2017. RCMP report taking the driver to the detachment in Kelowna as part of a criminal investigation, the nature of which has not been revealed publicly.

Police claim that the man was taken to hospital after complaining of pain. Following examination there he was, according to police, taken back to the detachment and booked into a cell at 11:25 PM. According to RCMP the prisoner was found unresponsive the next day at approximately 2:11 PM and was pronounced dead around 2:40 PM.

None of the police claims have been independently confirmed. The details of the prisoner’s death in RCMP custody, as presented by police, have not been independently verified.

Donald Dunphy’s Daughter Sues Killer Cop Joseph Smyth, Newfoundland Force, and Province

In the Canadian context families of people killed by police can rarely, if ever, expect that the officers involved will be held to account in any way through criminal proceedings. This is not surprising given the state’s inclination to protect its own who kill in upholding the state. Often times the only way that victims’ families can gain a sense of some accountability is through the pursuit of civil suits. The killing of Donald Dunphy (58) by officer Joseph Smyth in Newfoundland shows clearly the state protecting the state in the case of a killer cop. Once again family, in this case Dunphy’s daughter Meghan, have had to file a civil suit against the officer, the Royal Newfoundland Constabulary (RNC), and the province.

Donald Dunphy was an injured worker who, like many injured workers in jurisdictions across Canada, was frustrated with a process that often ignores or downplayed workers’ concerns or needs and seems more inclined to protect capital or negligent businesses. Dunphy, like many dealing with recalcitrant bureaucratic institutions with few resources for legal sup[port or advocacy, took to social media, especially Twitter, to air criticisms of the workers’ compensation system. Dunphy’s friends and family members note that while angry he was not violent. He was never known to use guns.

The statement of claim filed by Meghan Dunphy states: “The death of Donald Dunphy was caused by the wrongful act or neglect of Joseph Smyth” (quoted in Bailey 2017). The lawsuit also names as defendants Smyth’s force, the Royal Newfoundland Constabulary, and the Newfoundland and Labrador government for its responsibility in overseeing the force.

Royal Newfoundland Constabulary Constable Joe Smyth was a member of then-premier Paul Davis’s security team on April 5, 2015, when he made an unannounced visit to Dunphy’s home in Mitchell’s Brook, Newfoundland. Smyth made the drive 80 kilometres southwest of St. John’s apparently because of a social media post that the premier’s staff had flagged as being  “of concern” (quoted in Bailey 2017). During the visit Smyth would shoot Dunphy twice in the head and once in his left chest. He claimed the man raised a gun and police say a .22 caliber rifle owned by Dunphy’s father was found at his feet. No fingerprints of Dunphy could be found on the gun. Police accounts have not been independently verified.

The reason given for the visit, targeting a civilian because of some tweets on Twitter, should raise serious questions about the role of police as political agents defending politicians against mere statements of dissent and punishing political critics for simple expression of opposition. Constable Smyth was never charged for his unannounced political visit and apparent attempt at intimidation nor for his killing of Donald Dunphy.

A public commission of inquiry into the killing raised more concerns. Constable Smyth first testified at the inquiry over the course of three days in January. He was recalled in March when text messages discovered after his initial appearance appeared clearly to contradict his sworn testimony. Smyth had initially testified that he never considered Dunphy a threat and never received advice on his notes regarding the shooting. Yet in later retrieved BlackBerry messages, Smyth told an unidentified friend the day before the killing of Dunphy that he had to deal with a “lunatic” who was “threatening the premier” (quoted in 2017). Smyth tried to explain the deletions prior to the inquiry by stating that he deleted direct text messages habitually to clear space on his phone (Bailey 2017). He also claimed that he did not mean the term “lunatic” in a derogatory way, because who, really would take it as such. He said he was simply referring to social media comments that he viewed as ranting (Bailey 2017).

Smyth also claimed during his second inquiry appearance that he had no recollection of numerous text exchanges the day following the shooting with RNC Sergeant Tim Buckle about notes Smyth would take to his RCMP interview that afternoon (Bailey 2017). This for someone overly focused on electronic messaging.

Newfoundland has no special unit to investigate incidents of harm by police to civilians so, incredibly, the investigation into Smyth’s killing of Donald Dunphy was carried out by the Royal Canadian Mounted Police (RCMP). This despite the fact that Meghan Dunphy raised issues of fairness and transparency and requested that an outside agency be used. Stunningly RCMP investigators even told the inquiry that they “inappropriately shared evidence with Smyth” or “were more casual with him” (Bailey 2017), They stood by their findings and, dubiously, so too did the inquiry.

The inquiry into Dunphy’s killing, led by provincial Court of Appeal judge Leo Barry, took place over two months beginning in January 2017 and heard from more than 50 witnesses. As is the case with such inquiries, the Dunphy inquiry could not make findings of criminal or civil responsibility. Judge Barry is scheduled to provide his report and any recommendations by July 1.

 

Further Reading

Bailey, Sue. 2017. “Daughter of Man Shot Dead by Newfoundland Police Sues Officer, Force, Province.” CTV News. April 5. http://www.ctvnews.ca/canada/daughter-of-man-shot-dead-by-newfoundland-police-sues-officer-force-province-1.3355744