A framegrab from video shows the tasering of Robert Dziekanski at Vancouver International AirporteMail
As he wrapped up his term as the head of British Columbia's police watchdog, the Independent Investigations Office, Richard Rosenthal delivered a parting blow.
A former Los Angeles prosecutor and head of police oversight agencies in Denver and Portland, Mr. Rosenthal used his final report to take to task officers who pull the trigger and then refuse to write down their accounts.
"With great power comes great responsibility," he said in an interview with The Globe and Mail. "And one of those responsibilities is you account for your actions when you kill somebody under your authority as a police officer. You have a responsibility to do so."
Mr. Rosenthal was named the first chief civilian director of the IIO – an agency born out of the Frank Paul and Robert Dziekanski public inquiries – in late 2011 and was in his office for the final time this week. He left his post four months early and is pursuing a PhD at Simon Fraser University. The report, penned by Mr. Rosenthal and the office's legal counsel and released last week, said the IIO had "become aware of a pattern of problems with respect to subject officers involved in critical incidents in British Columbia failing to prepare timely duty to accounts or notes of their involvement in incidents."
The IIO said the problems spanned multiple files and multiple departments, including the RCMP, Vancouver Police and two other municipal police agencies. The report also criticized two Vancouver officers who were witnesses to a shooting and "contaminated their memories by watching news accounts and/or viewing online video accounts of the incident."
A police union official says officers "go out of their way to co-operate with IIO investigations." But Tom Stamatakis, president of the Canadian Police Association, which represents more than 50,000 officers across the country, said police fear information they provide will be used against them. Mr. Stamatakis is also president of the Vancouver Police Union.
Concerns about police officers and their note-taking are not unique to B.C. A case involving Ontario's police watchdog, the Special Investigations Unit, reached the Supreme Court of Canada in 2013, with the court ruling officers could not consult legal counsel before preparing their notes. The Civilian Review and Complaints Commission for the RCMP in a statement earlier this month said "the issues of note-taking and record-keeping have been recurring themes" in a number of investigations.
In the interview, Mr. Rosenthal said the issue of B.C. police officers pulling the trigger and then refusing to complete duty-to-account reports – which are essentially written statements documenting what occurred – has proven "systemic."
"What I found is neither the VPD nor the RCMP are enforcing the writing of these reports at all, and we've had dozens of incidents where we found that officers, the shooting officers, the officers involved in the application of force, have not written reports at all during [the course of] our investigation," he said.
In the week since the report's release, neither the Vancouver Police Department nor the RCMP indicated any immediate policy change was afoot, though the RCMP said it is reviewing the issue.
The IIO report centred on a police shooting that occurred in Vancouver in April, 2015. A man was shot dead after he stabbed three people. The IIO cleared the officer who fired the fatal shot and said he would not be charged.
The report said the subject officer declined to be interviewed by or provide a report to the IIO, as is his right under the Charter of Rights and Freedoms.
However, Mr. Rosenthal said the officer also did not prepare a duty-to-account report as required by Vancouver Police Department policy. The department's regulations and procedures manual says every time an officer discharges a firearm while on duty, the officer will submit a detailed written report through their supervisor to the chief constable.
Mr. Rosenthal said the duty-to-account reports are compelled and cannot be used against an officer in a criminal case. But he said the IIO and Crown counsel still want to review them, and police administrators should do the same to ensure officers are acting in accord with policies, practices and expectations.
"They're extraordinarily important pieces of evidence that any competent criminal or administrative investigator would want to see," he said.
Josh Paterson, executive director of the B.C. Civil Liberties Association, said his organization understands why officers who are being investigated for potential criminality would not speak with the IIO. But he said they still "have a duty to record notes and to keep their police employer informed as to what happened."
"Presumably, if one is running a police force, these are things that you need to have recorded so you can base decisions on them and understand better the situations that your officers find themselves in," he said in an interview.
The IIO report said the Vancouver police policy does not specify when a duty-to-account report should be prepared and the policy should be amended to ensure reports are timely. It noted the Supreme Court of Canada in the 2013 case said "police officers do have a duty to prepare accurate, detailed and comprehensive notes as soon as practicable" after an incident.
Sergeant Brian Montague, a Vancouver police spokesperson, said in an e-mail that the department's officers "provided what was required and necessary to IIO investigators."
"The VPD never had concerns about the actions of our officers that day. This was a chaotic and dangerous situation demanding an immediate response. From the beginning, we have stated that the actions and courage of all of the police officers that day was a reflection of their extensive training and saved the lives of many innocent people," he said.
When asked if the department would amend its policy, as the IIO recommended, Sgt. Montague suggested such a change would be illegal, though he did not specify exactly how.
"We can't create a policy that is in conflict with Canadian law, regardless of what the IIO wants," he wrote.
Staff Sergeant Rob Vermeulen, a spokesperson for the B.C. RCMP, said it was contacted by the IIO about the duty-to-account issue in March. He, in an e-mail, said the RCMP met with the IIO and initiated a review of specific cases, as well as the policy concerning duty-to-account reports. He said the RCMP is "committed to advancing this review in a timely fashion and to keeping the IIO fully informed through ongoing dialogue."
However, Staff Sgt. Vermeulen said a memorandum of understanding (MOU) with the IIO only requires subject officers to provide a report that describes the scene and any safety risks, as well as statements made by witnesses. He said the memorandum of understanding does not mention the duty-to-account report.
"Our policy and procedures are aligned with the MOU," he wrote.
Mr. Rosenthal's tenure was not without controversy – a legislature report found the office had high levels of attrition and low morale, and the handling of its first-ever case was heavily criticized.
An investigation by the office into a November, 2012 police shooting initially led to a charge of second-degree murder against the officer who pulled the trigger, which was the first murder charge against a B.C. officer in recent memory.
The Crown laid the murder charge in October, 2014, but later announced a stay of proceedings. The Crown said that after conducting interviews with other officers ahead of the trial, it was no longer satisfied it could prove the officer who fired his weapon acted unreasonably.
The Crown on Friday announced a criminal charge had been approved against a Penticton RCMP officer, after an IIO investigation. The officer is charged with driving without due care. He is alleged to have been driving a vehicle that struck and killed a 5-year-old.
The IIO in its report into the April, 2015 incident said it would file a complaint with the B.C. Office of the Police Complaint Commissioner over the missing duty-to-account reports. (A second officer who fired a beanbag shotgun also did not prepare any notes, according to the IIO report.)
The complaint commissioner said he will review the matter.
The IIO said it would also be following up with the provincial government's director of police services and the B.C. Association of Chiefs of Police (BCACP).
Clayton Pecknold, the director of police services, wrote in a statement that his office has supported the IIO's ongoing discussions involving protocol with police departments and "has encouraged the IIO to work collaboratively with those agencies and their governing bodies to find an acceptable resolution."
Les Sylvan, president of the BCACP, said in an interview that "the challenge that comes with this is our strong wish for transparency and oversight and trying to balance that with the criminal justice system that we have in Canada."
On the issue of police officers watching video of incidents they were involved in, Mr. Rosenthal said they should not be permitted to do so before they are interviewed.
The IIO report said one of the witness officers in the April, 2015 incident was confused about what she had seen firsthand, and what she later observed in video footage.
Doug LePard, chief of Metro Vancouver Transit Police and former deputy chief of the Vancouver Police Department, said interviewing a witness is not intended to be a memory test. He said the goal is to obtain an accurate, truthful statement.
"It's about what is the best investigative practice supported in evidence and research to achieve the outcome that you want, which is an accurate statement," he said in an interview.
In 2014, Chief LePard co-authored a discussion paper on showing incident video to police. The paper included a set of guidelines that was later adopted by the BCACP.
The guidelines include a two-stage test for some cases. In the first stage, an officer would be asked to provide his or her perceptions of what had occurred, with investigators and prosecutors recognizing errors of fact do not mean an officer is being untruthful. In the second stage, the officer would be given access to the video to ensure the statement provided was accurate.
Chief LePard noted an adjudicator earlier this year ruled in favour of a transit police officer who asked to view a video before providing evidence to Surrey RCMP in an assault case.