Almost nine years after a UBC student was beaten by Metro Vancouver Transit Police in a violent assault captured on video, Police Act proceedings for one of the two officers involved are still ongoing.
The Office of the Police Complaint Commissioner (OPCC) is currently appealing a B.C. Supreme Court decision that quashed the watchdog’s order for a public hearing.
SkyTrain surveillance cameras captured the Aug. 10, 2011 incident at Rupert Station, which was sparked by an alleged fare evasion.
The then-22-year-old victim, whose name is protected by a publication ban, was there to meet a friend.
When his friend ended up taking the bus instead, he exited down the stairs and was confronted by two transit police officers over his unpaid fare.
The varsity football player told the officers he wasn’t even taking the train but they decided to issue him a violation ticket anyways. He provided his full name but the officers didn’t believe him so he was arrested for obstruction.
When he tried to flee, he was tackled, punched and then subject to a brutal beating by Const. Edgardo Diaz Rodriguez, who delivered 10 baton strikes to the victim’s head, neck and back in just nine seconds.
“The scar that’s on my head is there for life,” the victim told Global News in July 2016.
“I just got hit so many times I thought I was gonna get like beaten to death.”
The OPCC says the complainant was also later charged with causing a disturbance and assaulting a police officer.
Those charges were subsequently stayed by the Crown and became the subject of Police Act deceit allegations.
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The province’s independent civilian oversight agency for police complaints ordered an internal probe on Aug. 22, 2011, and despite a six month time limit for Police Act investigations to be completed, the process continues to drag on.
“Something’s wrong with the system,” said former B.C. Solicitor General Kash Heed.
“I was shocked to find out that this is still continuing.”
In May 2012, the first discipline authority from transit police found that three allegations against Diaz and his then-partner, Const. Michael Hughes appeared to be substantiated: abuse of authority for using unnecessary force, discreditable conduct for recommending a charge of assaulting a police officer without sufficient grounds, and discreditable conduct for recommending a charge of being intoxicated in a public place without sufficient grounds.
The OPCC then ordered an external investigation by the New Westminster Police Department (NWPD) and also later appointed a retired judge to review the matter before Diaz was suspended from operational duties with pay in October 2013.
In January 2014, discipline proceedings against Hughes, who quit the transit police in 2012, went ahead in his absence.
NWPD’s then-chief Dave Jones, who now heads Transit Police, found four abuse of authority allegations were substantiated. Hughes received a nine-day suspension without pay.
Later that month, the OPCC was advised by the NWPD that criminal charges would likely be recommended against Diaz and Hughes, and Police Act proceedings were halted pending the outcome of the criminal investigation.
In May 2016, Diaz pleaded guilty to assault causing bodily harm while all criminal charges against Hughes were stayed. Diaz was sentenced to 12 months probation in June 2016.
The Police Act process resumed with the OPCC calling a public hearing in Nov. 2016, after it disagreed with some of the second discipline authority’s findings.
In June 2017, the OPCC called a second public hearing in regards to allegations dismissed by the third discipline authority, but directed it be consolidated with the earlier public hearing so all issues with both officers would be heard by the same adjudicator.
A public hearing into allegations of professional misconduct under the Police Act began in February 2018, and heard two days of evidence from the complainant.
Diaz, who had fought to quash the public hearing order, was successful in June 2018, when B.C. Supreme Court Justice Harvey ordered a stay of proceedings, calling the delay “extraordinary” and “unacceptable.”
In his Sept. 2018 judgement, Justice Harvey stated “the continuation … specifically the public hearing, would amount to an abuse of process and … would bring the Police Act disciplinary hearing procedures into disrepute.”
The OPCC filed an appeal in Oct. 2018, claiming Justice Harvey erred in his judgement.
“The decision does not appreciate or consider the fact that the OPCC cannot control aspects of the disciplinary processes giving rise to delay,” states the appellant.
The OPCC also argued that the chambers judge did not consider the public’s interest in having the incident critically reviewed at a public hearing.
“It is undeniable that such an interest exists … permitting Const. Diaz to avoid facing a public hearing in these circumstances carries with it a serious risk of bringing the Police Act disciplinary process into disrepute,” reads the appellant’s statement of facts.
Arguments were heard on Nov. 5, 2019, and the OPCC is awaiting a judgement from B.C.’s highest court.
Diaz’ lawyer says his client’s case is “the result of a failure of failures in the oversight process.”
One of the key problems according to David Butcher, Q.C., was that the OPCC “kept moving the goalposts by changing and increasing the number of charges against Constables Diaz and Hughes.”
Butcher says his client believes that he has done all that he can do to admit what he did wrong and accept accountability for his actions, and that it’s “most unfortunate that the Police Complaint Commissioner has not accepted the rulings of the retired and sitting justices who have already adjudicated on the matter.”
Diaz has filed a factum in the Court of Appeal arguing the appeal must be dismissed because the decision to issue the second public hearing notice was unreasonable, and was issued “in the face of unreasonable delay.”
After nine years, Metro Vancouver Transit Police say they’re anxious for this matter to be resolved.
When asked whether Diaz remains behind a desk or is back on patrol, the force would not reveal what duties the officer is currently assigned to.
Diaz’ discipline history includes a 2013 written reprimand for discreditable conduct for asking a Surrey firefighter to take a photo of an intoxicated man, and eight one-day suspensions for neglect of duty in 2015.
Transit police say it’s important to note that “once an investigation is underway under the Police Act, the police agency, chief and police board do not have the ability to terminate that officer’s employment.”
That recommendation has to come at the conclusion of the Police Act complaint.
The province is promising changes to the existing 45-year-old Police Act, and B.C.’s former top cop says bridging the police watchdog or Independent Investigations Office of B.C., with the OPCC, is one possibility.
“You put it under one umbrella and you deal with the public trust side from the police complaints commissioner,” Heed told Global News.
“People have to take responsibility as to why this went sideways.”
Without knowing how the lengthy process will end and when, Metro Vancouver Transit Police, along with its union, legal counsel and executive team, have provided Diaz with nearly 50 courses of additional training — including a re-certification on the use of force.
“Nobody’s going to win at the end of the day and the largest loser is going to be the taxpayer,” said Heed, who estimates the public is on the hook for at least $2 million in costs for the entire process so far.
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