Public hearing against Transit officers possible

An adjudicator has ruled against two Transit police officers who are accused of engaging in misconduct in connection with the assault of a University of B.C. student at a Vancouver SkyTrain station more than six years ago, clearing the way for a public hearing into the case to proceed.

Const. Edgar Diaz and former Const. Michael Hughes, who face a public hearing before the B.C. police complaint commissioner, last month filed two applications before a retired judge appointed to deal with their case.

They sought to have the adjudicator, retired B.C. Supreme Court justice Ronald McKinnon, order the commissioner to provide further details of an allegation that they were dishonest in official statements made in the case.

They also applied to strike an allegation that they were engaged in misconduct by recommending charges against the man who was assaulted. But in a recent ruling, McKinnon dismissed both applications filed by lawyers for the officers.

McKinnon found that he did not have the power to order further particulars of the allegation of dishonesty. He also found that he didn’t have the power to dismiss the accusation that they wrongly recommended criminal charges.

An adjudicator in a public hearing has the powers to receive evidence to make a determination about misconduct, but does not have the authority to put an early end to the whole process, said McKinnon.

“Even assuming the adjudicator had the authority to dismiss the complaint, the argument advanced in support is extremely weak,” he said.

A lawyer for Hughes argued that the Police Act did not contain a type of misconduct called “recommending charges,” but McKinnon said the legislation refers to “abuse of authority” in an “open and nonrestrictive” way.

“The members should, as a matter of fairness, be told what is said to constitute misconduct,” said McKinnon. “But here, they have been told. They do not like the fact that it is an allegation based on the entirety of their conduct and statements (as opposed to any single statement).”

The hearing got underway Tuesday with the student testifying. It’s expected to continue until Thursday.

Police Complaint Commissioner Stan Lowe ordered the public hearing after the 22-year-old student complained he’d been assaulted by the officers at the Rupert SkyTrain station.

The incident, captured on video, saw the student being struck by a police baton and suffering cuts and bruises to his head, hands, legs and back. The young man was taken to hospital where he received sutures for his head injury after which he was taken to jail and arrested for obstruction, assault of a police officer and causing a disturbance by being drunk. Charges against him were either dropped or stayed by the Crown.

A disciplinary process against the two officers was suspended in January 2014 when charges were recommended against them.

Diaz pleaded guilty to one count of assault causing bodily harm and received 12 months’ probation. Hughes had charges against him stayed.

They do not like the fact that it is an allegation based on the entirety of their conduct and statements.