Judge orders police to obey the law
Witnesses in fatal shooting ordered to co-operate with watchdog’s probe
At the end of his rookie year as head of B.C.’s Independent Investigations Office, Ronald MacDonald was talking positively about the two-year struggle to force Vancouver police officers to obey the law.
He was even singing the praises of Chief Adam Palmer who — as his men thumbed their nose at giving statements about a police shooting — suggested the IIO was incompetent.
“I’d rather focus on going forward, than looking backward,” MacDonald maintained.
“It was unfortunate it was necessary to go to court, but that’s what we do in this society to resolve our differences. I’m very pleased the court has taken such a strong stance in favour of civilian oversight and these decisions should be left to us.”
On Nov. 10, 2016, Vancouver police officers responded to a robbery at the Canadian Tire at 2830 Bentall Street and fatally shot Daniel Peter Rintoul, a sixfoot-one, 380-pound, 38-yearold who grew up in Alberta.
The IIO investigation identified nine witness officers — seven decided to not co-operate unless a union lawyer held their hand and they reviewed any video and audio recordings.
B.C. Supreme Court Justice Miriam Gropper left no doubt they were out of line.
“It is not open to (the officers) to withhold co-operation based on assertions that the proposed interview timing inconveniences them or that the proposed IIO interviews will not be conducted in accordance with the terms of the witness officers demand for pre-interview disclosure or assurances as to potential derivative use of their accounts,” she said in her ruling Thursday.
“An obligation to co-operate fully with the IIO must be an essential element of the functioning of a police oversight agency that exists to investigate police-related fatalities and incidents involving serious harm …. There will be no arm’s-length investigation of an incident if it is at the discretion of the witness officers.”
But MacDonald took little satisfaction in the Pyrrhic vic- tory that left both institutions tarnished.
The case highlighted the dysfunction of the six-year-old IIO and the tension between it and those it was supposedly overseeing.
Palmer even refused to compel the officers to co-operate, forcing the IIO to ask Gropper for an order of mandamus — a writ commanding the cops to do their job.
On April 26, 2017, the chief finally ordered the officers to “co-operate fully,” which was why the IIO dropped him from the petition.
Still, he penned a lengthy letter expressing concern about “what appears to be the IIO’s lack of investigative competence.”
Nevertheless, MacDonald went out of his way after Thursday’s ruling to make nice with Palmer and emphasize “the disagreement here wasn’t with the department as much as it was individual officers.”
For MacDonald, this has been a baptism of fire as head of an organization beset by critics and racked by internal strife.
The IIO’s first chief civilian director, Richard Rosenthal, retired at the end of his term in January 2017 and the tenure of the American — a former L.A. prosecutor and ex-head of the Denver oversight agency — was troubled.
MacDonald arrived a year ago this month, boasting a stellar Canadian resume stretching back four decades.
Graduated from Dalhousie University, he was admitted to the Nova Scotia bar in 1985, practised as defence counsel for six years, worked for 17 years as a Crown, spent three years as the criminal policy adviser for that province’s Department of Justice, spent a year as president of the Law Societies of Canada, and was the first director of Nova Scotia’s Serious Incident Response Team.
MacDonald insisted it’s a different IIO today.
Last year, the agency opened 119 investigations; this year, it’s opened 49 and closed 33.
“In the past, unfortunately, we’ve had cases that took too long to complete and there were a variety of reasons for that — one was turnover at the IIO,” he explained.
“A lot of it had to do with turnover, internal issues at the IIO that led to that turnover, resource issues and burden, people not having the time to work of files.
“But in the last 10 to 15 months things have changed. Our relationship with police since I arrived has been, I don’t know what the descriptor is, but very good or more than very good. Does that mean everything is always perfect? No. It’s the nature of the business that we’re not always going to agree.”
This case, however, was a major issue and other police officers in a few other cases took their cue from the Vancouver police officers.
If Jane or Joe Six Pack pulled this stunt, obstruction of justice charges would have been laid.
“I understand that point of view,” MacDonald nodded.
It would be fair, he conceded, for the public to wonder whether there was sincere commitment to transparent oversight. He believed there was.
“In the whole scheme of things, civilian oversight is very new particularly in provinces like B.C., Alberta and Nova Scotia and it takes a while for everyone to kind of get used to it,” he offered.
“Saskatchewan doesn’t have a group specifically like ours, nor do Newfoundland, P.E.I. or New Brunswick. My view of the future of oversight is that the IIO and organizations like us will become not just tolerated but accepted as just part of the everyday workings of a police agency — as much as it is that every day you get up, put your uniform on and go do your job, police will come to understand, expect and respect as second nature that civilian oversight is just a part of that.”
Maybe. I am not so sure this battle was done in good faith and not to avoid accountability — the demand for immunity by officers seems to belie that.
The IIO was established in a large part because in December 1998 Vancouver police officers dragged an unconscious First Nations man, Frank Paul, out of the drunk tank and dumped him in a wet, freezing alley where he died of hypothermia.
They then covered it up. These officers should have had no “misapprehension” about theirduty.
In 2013, the Supreme Court of Canada made it clear considering these concerns: “In short, 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 forgo liberties they would otherwise enjoy as ordinary citizens.”
These officers should not only be paying the cost of this debacle, they should be disciplined.
Oh, unfortunately, the Police Act contains no enforcement provisions for failing to co-operate fully.
MacDonald said he does not think the delay will deprive Rintoul’s family from receiving justice or the public from knowing what happened.
“We’ve already got a significant amount of work done on this, the witness officer statements obviously haven’t been done yet, but will hopefully be done in the near future. I am confident we will be able to tell a very complete story of what happened here — not only for the loved ones, for whom that is very important, but also for the public, that’s important too.”
Time will tell — there could be an appeal.
The chief finally ordered the officers to ‘co-operate fully,’ which was why the IIO dropped him from the petition.