Police oversight bodies hindered by silence of accused officers, Globe analysis finds

Open this photo in gallery:

Seven people know what was done to Myles Gray the day the 33-year-old business owner died in suburban Burnaby. All of them were officers with the Vancouver Police Department. And 7½ years on, it is still not clear to anyone but them.

B.C.’s police oversight agency, the Independent Investigations Office, believed there were grounds to charge some of the officers with manslaughter, aggravated assault and assault causing bodily harm. Prosecutors declined to lay even one.

The Crown announced in 2021 that it was hamstrung by the “incomplete” and “inconsistent” accounts that officers gave investigators probing the death of Mr. Gray. They concluded that the contradictions and inconsistencies in the officers’ stories left them with no reasonable prospect for conviction. Although the IIO was able to access some of the officers’ notes, all seven refused to speak with investigators.

Open this photo in gallery:

Oversight bodies such as the IIO, which have proliferated in Canada over the past decade, are created to hold police accountable. And yet, there are serious questions about whether they are able to accomplish that mandate.

Officers rarely face charges and discipline is largely left to police departments. Perhaps the biggest roadblock to justice, experts say, is getting accused officers to participate in these investigations at all.

The Globe and Mail examined thousands of decisions made by these agencies in the past five years to understand the extent of co-operation by accused officers. The data suggest their participation is rare – in B.C., almost non-existent – undermining the ability to hold law enforcement accountable.

Refusing to co-operate is a legal option for officers whose conduct could lead to criminal charges. They are known as “subject officers,” and they have the same right to silence as any other citizen.

Some argue that treating a person who wields deadly force the same as everyone else doesn’t make a lot of sense. And given how few accused officers co-operate with investigations into their actions, they feel the law needs to be changed.

Howard Morton, a Toronto lawyer who headed Ontario’s Special Investigations Unit for three years, says that if he was defending an officer, he wouldn’t let them sit for an interview: “But it’s the law that’s wrong. It’s the law that accounts for this lack of accountability and transparency – and everything else we should expect when somebody is seriously injured or dead. The reality is police are different from you and I.”

“They carry a gun. They can pull you over on a whim. They can detain you.” There have to be special responsibilities that come with that, he adds, including explaining what led an officer to fatally shoot someone.

Aug. 13, 2015, the day Mr. Gray died, was another blisteringly hot day in one of the hottest B.C. summers on record. Thousands of wildfires were raging across the province. The skies had turned an eerie shade of orange from the smoky haze.

Mr. Gray ran a business that provided ferns and other greenery for florists in the coastal community of Sechelt. He was making deliveries in Vancouver that day. In a call to his mother before catching a ferry to the city, he mentioned that his warehouse was covered in ash from an approaching fire across the bay. He seemed “happy,” and “normal,” she recalls, if a little worried about the wildfire, which was burning out of control.

While out for a walk during a break later that day, Mr. Gray, who had no criminal record nor any record of mental illness, passed a woman watering her lawn, a violation of the region’s strict water restrictions. He said something to her – it’s not clear what – then either grabbed or kinked her hose, causing it to spray her, according to witnesses.

The woman’s son called police, saying that Mr. Gray seemed upset and unwell. Mr. Gray was initially co-operative, according to the first officer to speak with him, but became agitated when she mentioned the hose. He then retreated to a wooded yard. In all, seven officers later followed him there.

What happened next is unclear. There are no civilian witnesses, nor any video of what transpired. Contradictions between officers’ accounts make it impossible to determine a “coherent narrative,” according to an account published by the Crown.

Within nine minutes, Mr. Gray was unconscious, handcuffed and hog-tied, his ankles bound with a strap. He regained consciousness at some point – it is not clear when, nor for how long, the Crown said in its account. Officers said that Mr. Gray then resumed his struggle. So did they. Twelve minutes later, he went into cardiac arrest, and was later pronounced dead.

Mr. Gray’s mother, Margie Gray, has tried for years to make sense of what led to that point: “Maybe Myles was having a vulnerable moment – but if he was, it was help he needed.”

Vancouver police, in a brief news release the following day – still its only comment on the incident – said an “agitated man died in course of arrest.” Six officers had to be taken to hospital, two with serious injuries, it said.

Seven years later, the Crown clarified: Two officers sustained minor injuries. One had a five-centimetre cut caused by a low-hanging branch, the other had a small cut beneath his chin.

The Crown also laid out the damage done to Mr. Gray. Officers left him with a broken nose, a broken eye socket, brain bleeding, a broken voice box, a broken rib, a ruptured testicle, a possible dislocated jaw.

A postmortem could not determine a cause of death. A forensic pathologist reported that the death was likely “multi-factorial,” and pointed to nine potential causes, including suffocation, and “other injuries sustained.” Top medical officers from Alberta, Nova Scotia and Ontario reviewed the autopsy. The absence of “reliable” information about the events “complicated” their ability to “establish a conclusive medical cause of death,” they said.

Ms. Gray points out that her son’s sternum was fractured – this could have stopped his heart. Or that the airway injury could have caused him to asphyxiate. Or possibly, one of the many blows to his head could have caused fatal brain damage, she added. “Myles was severely beaten to death. That’s why he died,” she says. “How can those officers refuse to explain what happened, and still be allowed to patrol the streets?”

Open this photo in gallery:

Few rich countries aside from the U.S. log such a high rate of police killings as Canada. These deaths are often measured per 10 million people. In the U.S., the annual rate of deaths by police is 33.5 per 10 million. Canada has the next highest rate, with 9.8 deaths – seven times higher than in Germany, 20 times higher than in England and Wales, and 50 times higher than in Japan, according to data compiled by the U.S. think tank, the Prison Policy Initiative.

At least 1,129 Canadians have died in encounters with police since 2000, according to information from independent investigator reports, coroner reports, court records and news reports. In that time, 22 officers were charged with culpable homicide in the deaths of 13 civilians – three with second-degree murder and 19 with manslaughter.

In two cases, the charges against officers were later stayed or dismissed. Four cases are continuing, including that involving Toronto police officer Calvin Au, charged last week with manslaughter in the death of Chadd Facey, as well as two B.C. RCMP officers charged on Feb. 1 with manslaughter in the death of Dale Culver.

Of the 13 officers who stood trial for culpable homicide, all were acquitted. James Forcillo was, however, found guilty of the lesser charge of attempted murder in the death of Toronto teen Sammy Yatim. He served 21 months in prison.

To understand how often subject officers agree to fully participate in investigations, The Globe reviewed all decisions made by police oversight agencies in the past five years in B.C., Alberta, Manitoba, Ontario and Nova Scotia, more than 2,500 in all. (Full co-operation means that subject officers both agreed to be interviewed and to provide investigators with their notes; partial co-operation means they either agreed to an interview, or to provide their notes.)

Decisions by Quebec’s Bureau des enquêtes indépendantes do not provide co-operation by subject officers, and could therefore not be included. The Serious Incident Response Team of Newfoundland and Labrador and Saskatchewan’s Serious Incident Response Team are too newly formed to be included. And the territories, PEI and New Brunswick do not have police oversight agencies, though the latter is in the process of creating one.

Finally, the analysis did not include cases where the affected person’s death was self-inflicted or the result of illness. Nor could it include decisions made where charges against officers were considered or approved. These decisions are permanently sealed.

In B.C., just 2 per cent of the 198 officers under investigation fully co-operated with the IIO in the past five years, the poorest record of participation.

Accused officers in other provinces fared slightly better, but participation remained scant: In Manitoba, 12 per cent of the 145 officers under investigation agreed to co-operate fully with Manitoba’s Independent Investigation Unit (IIU).

In Nova Scotia, 15 per cent of officers under investigation fully co-operated with the province’s Serious Incident Response Team. In Ontario, 24 per cent of the 1,106 officers investigated by the province’s Special Investigations Unit agreed to full co-operation.

In Alberta, 12 per cent of officers under investigation agreed to be interviewed. The Alberta Serious Incident Response Team told The Globe it does not “track whether a subject officer decides to provide their notes.” They added: “Our investigation will proceed regardless of their level of involvement.”

Subject officers’ degree of co-operation tended to further decline in cases involving fatal shootings.

None of the 16 B.C. subject officers involved in fatal shootings in the past five years agreed to fully co-operate with investigations into their actions. Just one of the 12 Manitoba officers involved in fatal shootings in the past five years agreed to fully co-operate with investigators.

Accused officers didn’t always refuse to participate in these investigations. In the first years after the SIU’s 1990 launch, officers sat for interviews as a matter of course, says Mr. Morton, who headed the Ontario agency to 1995. But their lawyers eventually put an end to the practice, arguing their clients had a Charter-protected right to avoid self-incrimination. In the late 1990s, Ontario adopted a regulation specifying just that.

Other provinces have by and large replicated the Ontario model. Refusing co-operation has since become standard practice among the rank and file.

André Marin, former director of Ontario’s Special Investigations Unit (SIU), calls the entrenched rejection to civilian oversight by police the “blue wall of resistance.” The attitude may best be summed up by a lawyer who wrote in an Ontario police association newsletter that he was tempted to give detachments pencils embossed with a vulgar phrase directing officers to shut up.

Mr. Morton believes the Charter’s Section 1 may override officers’ right to avoid self-incrimination. Section 1 holds that rights can be withheld if the law in question is justified. “My view has always been that a law requiring police co-operation after a death or serious injury would be upheld,” Mr. Morton says, “because police are public servants who have extraordinary power, and carry guns.”

Open this photo in gallery:

No court has ever been asked to consider this, though the Supreme Court of Canada has come close. In 2013, the high court ruled that police lawyers cannot help officers draft their notes or review them before they are submitted to Ontario’s SIU. “So long as police officers choose to wear the badge, they must comply with their duties and responsibilities – even if this means at times having to forego liberties they would otherwise enjoy as ordinary citizens,” the court found.

The case was launched by two grieving parents, including Ruth Schaeffer, whose schizophrenic son, Levi, was fatally shot by an officer with the Ontario Provincial Police. Ms. Schaeffer drained her life savings to fight the legal battle. She did this, she said at the time, so “the next mother of somebody who’s been shot by police will know what happened. I will never know what happened to my son.”

Mr. Marin believes there is a simpler solution: Officers who refuse to co-operate should not be allowed to continue to interact with the public. “You can work desk duty or in administration. But you rescind your right to be an officer. You can no longer carry a gun.”

“If police can remain silent – when often, they are the only person who knows what happened – the implication is that they can kill with impunity, without having to give any explanation for it at all,” Mr. Marin says. This attitude will do little to restore the public’s faith in the police in Canada, something that has been steadily declining across the country for the past half-decade, according to annual polling by Angus Reid.

In most provinces, the point of launching oversight bodies was to restore faith in police. Manitoba’s Independent Investigations Unit launched in 2015, in response to deepening tensions with the city’s Indigenous community, after years of alleged cover-ups by police, and several high-profile deaths.

In the eight years since, however, no Manitoba officer has been found guilty of any crime after a trial.

In almost 40 per cent of cases, the Crown stayed proceedings against officers. In four cases, officers entered guilty pleas. In three of four, judges vacated their records during sentencing.

Open this photo in gallery:

Resistance by officers has not been limited to behaviour protected by legislation. At times, this has included activities that undermine these probes, according to officials and civil suits.

The former head of the Alberta Serious Incident Response Team complained bitterly about the “murky” and “unprincipled” methods she felt the Calgary police department was using to shield officers under investigation.

In a 2017 letter to former Calgary police chief Roger Chaffin, Susan Hughson alleged that the department was providing accused officers with witness testimony, allowing them to craft a narrative based on the evidence against them. She also suggested the department was accepting proffered statements from officers – a trade for information whereby the Crown promised not to use any information provided against the accused officer. This has the “direct consequence of allowing a subject officer to avoid accountability,” Ms. Hughson said.

Proffer statements are “not evidence,” she added, nor is this “benefit” ever given to regular citizens.

Officers in Manitoba have been caught discussing events under investigation – and circulating statements – prior to IIU interviews. Winnipeg Police Chief Danny Smyth refused for years to hand over requested materials, and disputed the watchdog’s right to investigate certain cases. The force’s professional standards unit was caught not forwarding cases of serious harm to the IIU as required, and stifling civilian complaints.

Open this photo in gallery:

The Vancouver Police Department and its officers’ association have been at loggerheads with B.C.’s Independent Investigations Office for years. Pushback has come from the highest rungs of the VPD. In 2017, Vancouver Police Chief Adam Palmer wrote an eight-page letter to the IIO accusing it of “lacking investigative competence.”

The following year, the IIO, while investigating the death of Myles Gray, twice had to petition the B.C. Supreme Court to compel the co-operation of some officers. In B.C., as in other provinces, witness officers are required by the Police Act to attend interviews. But some in Vancouver were refusing, unless the IIO first provided them access to transcripts, recordings and other evidence.

Officers have a “duty to co-operate” with the IIO, Justice Miriam Gropper wrote in siding with the oversight body, a remarkable censure of B.C.’s largest police force, six years after the IIO’s creation. This was upheld on appeal in 2020.

The Vancouver Police Department declined to make Chief Palmer available for an interview. Instead, the force issued a statement saying it supported “the robust and independent system of police oversight that exists in British Columbia and participates as required in those independent processes.” It is conducting its own investigation into Mr. Gray’s death, it added, and a coroners’ inquest is pending. “Given these ongoing independent investigations it would be inappropriate to discuss further.”

In a Substack post from June 20, 2022, Winnipeg’s Chief Smyth wrote of the rigours with which his officers are held to account. He said policing is “one of the most regulated professions within our society.”

“Police officers subject to IIU investigations, as well as police officers who may be witnesses in these investigations are required to participate by providing notes, and reports, and being available for interview as prescribed in the Police Act,” he writes. (He did not mention that 88 per cent of officers under investigation in the province instead take advantage of their right to silence.)

“The systems that govern police may not be perfect, but they hold police accountable in what is a very challenging and complicated environment,” he added. “That said, the Winnipeg Police (and most police services in Canada), have demonstrated continual improvement and reform to meet the needs of the community we serve.”

Open this photo in gallery:

In some provinces, including Ontario and Alberta, police oversight agencies have the authority to lay charges. In others, such as B.C., the Crown remains the ultimate arbiter. These bodies can only recommend charges.

Ron MacDonald, who was a Crown prosecutor for two decades, heads B.C.’s Independent Investigations Office. He believes there is an “inherent and perceived” conflict of interest in having local prosecutors, who interact with the police on a daily basis, oversee cases against police. He argues that appointing special counsel – defence counsel or prosecutors from outside B.C. – should be mandatory in all cases involving potential criminal actions by police.

Since 2018, local prosecutors have laid charges in 67 per cent of cases where the IIO recommended them. Every time outside counsel was called in, Mr. MacDonald says, charges resulted.

Since the creation of the IIO in 2012, the Crown has taken only 10 cases involving police officers through to trial. Officers were acquitted in every one.

Last year, the civilian acquittal rate was 3 per cent, according to Statistics Canada.

“Doesn’t that scream there needs to be change? Doesn’t that tell you something is broken – that change needs to be made?” Ms. Gray says of the discrepancy.

“There is no reason in the world those officers could possibly justify what they did to Myles. It was insanity. Nobody recognizes it. Nobody apologized. None of the seven officers was ever issued even a misconduct. My son’s life had zero value. I’m ashamed of my city, my country.”

Police oversight in Canada: More on The Decibel