Police-led investigations of deaths that occur in police custody are inherently flawed, with normal procedures thrown out the window, punitive actions rarely being taken, and officers existing “above the law.”

That’s according to a panel of experts organized by the British Columbia Civil Liberties Association (BCCLA), who at a Vancouver forum last Thursday called for immediate reform by replacing police-lead investigations with civilian teams.

Change is most desperately needed in British Columbia, panel members say, where a number of civilian deaths in police custody have prompted public outcry. In all of these cases, no officers have been charged, with some only facing a few days’ suspended leave as punishment. According to Cameron Ward, a Vancouver-based lawyer who has represented over a dozen families who have lost loved ones in police custody, “in B.C., no police officer has ever been prosecuted for the death resulting from the application of force…The police are essentially above the law…There’s no recognition of the mistakes that are made and there’s a sense of impunity…There is no justice.”

Ward notes that police investigations of deaths in custody “are invariably handled the opposite way that they should be…the police deliberately investigate this in the exact opposite way that they would a civilian investigation,” with witnesses often not being immediately questioned and allowed to speak to one another before undergoing interviews. “The investigations that I’ve seen are so badly flawed that my 13-year-old daughter who watches ‘CSI’ could have done a better job.”

The minimal punishment that two officers faced after Frank Paul, an Aboriginal man from New Brunswick who in 1998 died of hypothermia in a Vancouver alley after being arrested and quickly released from police custody for public intoxication, led to increased awareness and criticism of mistreatment and death in police custody, as well as how such cases are handled by the Vancouver Police and the B.C. RCMP.

David Dennis, the president of the United Native Nations and the Frank Paul Society, told the CBC during a Paul memorial held in Vancouver last year, “we think that Frank Paul has been a martyr to that cause. [His death] was the beginning of the tipping point with respect to the general public’s lack of confidence within the RCMP and the Vancouver Police Department. That public pressure has led to the changing of the tone in the police.”

The 2007 death of Robert Dziekanski at the Vancouver International Airport, a Polish man who spoke no English and was repeatedly tasered by the RCMP, further incited public outrage. According to Shirley Heafey, former Chair, Commission for Public Complaints Against the RCMP, a video documenting Dziekanski’s treatment was instrumental in public condemnation against the RCMP. “It turns out there were two versions of the story,” she says. “There was the RCMP version and there was a video version that were quite different and contradictory.” Because of this, “the public outrage…was high.”

Advocates from both inside and outside of law enforcement agencies claim that increased skepticism of police investigations is further eroding public confidence in city police and the Mounties. After a series of recommendations made by police organizations and their allies, as well as Aboriginal rights organizations, the BCCLA and others, the B.C. wing of the RCMP announced in late 2009 that they welcomed increased civilian oversight of their internal investigations.

“The greatest asset that police have across Canada is public confidence that we will do our job professionally, competently and impartially,” said the organization. “Anything jeopardizing that confidence needs to be removed and addressed. Civilian oversight of investigations involving police will enhance public confidence and will build on the work the RCMP is already doing.”
But Thursday’s panel members contend that even further change is needed, claiming that civilian oversight is in adequate. Leonard Cler Cunningham, a Vancouver-based writer and researcher focusing on Aboriginal deaths in police custody, bluntly claims, “civilian oversight does not work. It’s a joke and it’s a farce.” Ward agrees: “we don’t need civilian oversight, we need civilian investigation.

“The solution is really simple,” Ward continues. “We have to have a body of independent civilian investigators respond immediately…we must have an independent lawyer or group of lawyers determine whether charges are appropriate and if so take the necessary steps.”

Panel members expressed frustration at the slow pace of change, claiming that police had a vested interest in keeping investigations under their own jurisdiction, and that further public education was needed.

According to David MacAlister, a professor of Criminology at Simon Fraser University who is working with the BCCLA to research the extent of deaths in police custody and oversight and accountability in police-led investigations, “there’s a very powerful police lobby in [B.C.] and they…exert serious pressure…the police like the way things are, they’re going to oppose any significant change.”

Police arguments against civilian-led investigations are varied: that reform is too expensive, that civilians are unable to understand the pressures facing police officers, and that only police officers are qualified to conduct such investigations. But Gareth Jones, a former London, England police officer who works with Ontario’s Special Investigative Unit (SIU) in Ontario, a civilian-run organization that handles all investigations of deaths in custody, says “those arguments are crap, they are not valid…These are not complex investigations, they’re relatively very easy. There’s usually a smoking gun, with someone holding it.” Jones claims that a civilian has a “good if not better” chance of doing the investigation properly, noting that in his experience trained civilians “very quickly became good investigators.” The monetary argument, he continues, is “absolute rubbish…investigations cost money, it doesn’t matter who does them.”

Ward says that police resistance to change is strengthened by public apathy and misinformation. “There’s this real hardness [among the public],” he says. “There’s this real sense that the police don’t do anything wrong.

“We have to educate the public and politicians,” he continues. “[Death in custody] is a common event. You can only imagine if two police officers died a month, how outraged people would be.”

Panel members looked to Ontario’s SIU and a civilian-lead program in the U.K. as models for reform. Lord Toby Harris, chair of the U.K.’s Independent Advisory Panel on Deaths in Custody (IAP), spoke of the organization’s role in providing independent advice and expertise to ministers on deaths in state custody. The IAP was formed in 2008 after the implementation of the Independent Police Complaints Commission, which “[ensures] that complaints against the police are dealt with effectively.” The body is “entirely independent of the police,” says Harris. Both were formed as a result of police officers rarely, if ever, being held criminally responsible for deaths in custody. “In some instances, the officers involved were promoted,” Harris says.

While “the changes that have been implemented do of course not mean that mistakes won’t happen again,” Harris believes that “the chance is reduced.”

Andre Marin, former head of the SIU, says that the Unit was created in response to a series of killings of black men by Toronto police officers. According to law, whenever serious injury or death occurs in police custody, the SIU must be notified immediately so that an “independent criminal investigation [is] done by civilians…It’s out of the hands of the police, full stop.” SIU investigators can be former police officers, but the organization’s director cannot.

According to Marin, “the model…in Ontario is the purest one you have in Canada.” He encourages other provinces to “build upon this model.”

Jones, who has worked with the SIU since its inception in 1990, says that civilian investigations “work for the public…the family members…and the police officers. There’s no reason there shouldn’t be reform.”

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Mara Kardas-Nelson

After graduating from the University of British Columbia, Mara Kardas-Nelson decided to pursue her latent dream of becoming a journalist, and has since been published in Canada, the U.S. and South Africa....