B.C.’s top court has ruled that police officers who witness a potential offence by other officers do not have the right to set the terms of their interview by the province’s civilian watchdog.
The three-judge panel upheld a lower court ruling that such officers must provide testimony on terms set by the Independent Investigation Office (IIO).
The case stemmed from a fatal police-involved shooting outside a Vancouver Canadian Tire in 2016.
Seven “witness officers” in that case — officers who witnessed the actions of the officers involved in the shooting, but who are not being investigated for their potential role in the death — refused to be interviewed by the IIO.
The refusal came after the IIO said it would not give the officers access to computer-assisted dispatch records, audio recordings or transcripts and video evidence of the incident prior to their interviews.
The dispute kicked off a bitter exchange between the two agencies, with Vancouver police chief Adam Palmer penning a letter accusing the IIO of “lacking investigative competence,” and the IIO taking the VPD to court to compel the officers to be interviewed.
In 2018, the BC Supreme Court sided with the IIO, and ruled that the officers must attend interviews as directed.
The judge also made a declaration that the duty of witness officers to cooperate with the IIO includes the duty to attend interviews as directed by the IIO, and that the attendance of witness officers’ counsel and union representatives or access to case-related materials was fully at the discretion of the watchdog.
The officers complied, were interviewed, and the IIO completed its investigation, clearing the officers involved in the shooting of any wrongdoing.
Despite that, the witness officers appealed the decision, seeking to have the judge’s declaration thrown out.
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In reasons for judgment published Monday, Justice David C. Harris agreed with officers that their request for disclosure of materials ahead of their interview was made in good faith, and wasn’t meant to frustrate the investigation.
Instead, Harris found the dispute was a disagreement about what constitutes the best, most reasonable or most efficient means of investigating a case.
However the three-judge panel rejected the officers’ argument that their duty to cooperate was not “a duty to submit to arbitrary terms imposed by the IIO.”
The judges also rejected the officers’ argument that the fact there was no specific definition of duty to cooperate in the B.C. Police Act meant that such a duty was meant to be negotiated under a memorandum of understanding between policing agencies and the IIO.
“The plain terms of the statute impose the duty to cooperate on police officers,” wrote Harris.
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“The duty is owed to IlO investigators. It is a duty to cooperate fully with those investigators. It is expressed as a mandatory, not a qualified, duty. Nothing in the wording of the statute supports the inference that police officers can withhold their cooperation with the investigation, if they disagree with the terms on which it is being conducted.”
The ruling went on to agree with the lower court judge that witness officers fail to comply with their duty to cooperate if they demand certain conditions, such as access to evidence ahead of interviews, the presence of their counsel or union representatives during an interview, or particular scheduling of the interview.
The court ruled that there was nothing in the IIO’s demands that was “arbitrary or capricious,” and that the broad definition of ‘duty to cooperate’ under the police act was indeed intended to give the IIO wide powers.
However it did note that should IIO investigators make “arbitrary” demands at odds with its mandate under the police act, officers would have room to appeal.
The court also pointed to the reasons for the IIO’s creation, stemming from inquiries into the deaths of Robert Dziekanski and Frank Paul, noting that the Braidwood inquiry into the former man’s death recommended that police officers “must promptly” make themselves available to IIO interviews.
In a statement, Canadian Police Association president Tom Stametakis said he was “somewhat disappointed” with the ruling, but there were no plans to appeal it.
“In this particular case, we had a disagreement with the Chief Civilian Director, and we used the processes that are available to adjudicate that disagreement,” Stametakis said.
“I’m quite happy to note that similar issues have not arisen since. The important thing to remember is that throughout this case, all parties continue to strongly believe in robust oversight and accountability for police personnel.”
The case at hand is not the only one in which the VPD and the IIO have found themselves at loggerheads.
The IIO went to court in 2017 to compel a VPD officer to attend an interview regarding the 2015 police-involved death of Myles Gray.
That case was finally forwarded to Crown prosecutors for consideration of charges in 2019.
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