Oversight misfiring Inquests into fatal shootings by police are marred by lengthy delays, leaving victims’ families clamouring for justice while providing little insight or closure The Inquest Files
By: Marsha McLeod Posted: 12:22 PM CDT Friday, Aug. 25, 2023

Hey there, time traveller!
This article was published 25/08/2023 (792 days ago), so information in it may no longer be current.

Under Canadian law, officers must believe their own life, or that of another, is fundamentally at risk — or at risk of “grievous bodily harm” — to use lethal force.

That scenario has played out 29 times in Manitoba since 2003, with Winnipeg Police Service responsible for 21 deaths, RCMP for seven and the Manitoba First Nations Police Service for one.

The number of fatal shootings involving law enforcement, both in Manitoba and across Canada, has increased in recent years.

The trend has intensified public scrutiny of police conduct. It is also raising questions about whether provincial inquests, which are mandatory following lethal shootings, are achieving their goal of exploring ways to prevent future deaths.

To find out, the Free Press put two decades of inquests into deadly encounters with a police bullet under the microscope. This is Part 1 in a four-part series.

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By spring 2022, as the COVID-19 pandemic inched into its third year, Manitoba’s provincial court quietly stopped scheduling inquests.

Faced with a deluge of backlogged criminal cases and a scarcity of resources, the plan was to resume the proceedings in the fall of 2023.

It’s a decision that has had a domino effect — leaving lives in limbo and questions from grieving family members unanswered.

Inquests are meant to examine the circumstances of certain deaths, including of people who die while held in prison or jail, while an involuntary patient under the Mental Health Act, or after being shot, Tasered, restrained or otherwise subjected to the force of a police officer.

It’s a mechanism that has a critical place in the justice system — it is designed to give the public full view of the circumstances around an individual’s death and, if needed, lead to recommendations to prevent similar outcomes in the future.

However, that oversight mechanism has significant flaws, some of which were exacerbated by the pandemic, a Free Press investigation has found:

• It’s a system plagued by delays;
• it restricts access to legal counsel for victims’ families;
• it relies on a limited use of expert testimony; and
• it rarely results in recommendations.

Part 1 of our series, The Inquest Files, looks at the impacts of court delays and the limited legal representation available to victims’ families.

Since 2020, there have been 10 fatal shootings by Manitoba police. For each of those victim’s families, there is currently no inquest hearing set in the near future. In fact, it may be years before they occur.

Delaying those inquests limits a chance of averting the next fatal shooting involving police, several lawyers told the Free Press. And while an inquest is prohibited from laying blame, it is often the only remaining opportunity to consider whether a different approach could be used in the next high-octane confrontation.

The victims in the 10 most recent fatal shootings include 16-year-old Eishia Hudson, 36-year-old Jason Collins, and 22-year-old Stewart Andrews — three Indigenous people — who were shot by Winnipeg police over a 10-day span in April 2020.

Over the past two decades, police officers in Manitoba have fatally shot 29 people — roughly 60 per cent of whom were Indigenous, according to a Free Press analysis. It’s a proportion that’s vastly out of sync with the Indigenous population living in Winnipeg, where most of the shootings have occurred.

Corey Shefman, a lawyer at OKT Law, a firm focused on Indigenous rights, has acted as counsel for several families during inquests.

He said the decision to delay inquests is doubly problematic. The majority of people who are the subject of inquests in Manitoba are Indigenous, he pointed out, while at the same time, they are vastly over-represented in the criminal cases the court is prioritizing.

“(The court is saying) we’re not going to find out how these Indigenous people are dying and prevent similar deaths in the future — in order to lock up other Indigenous people,” he said.

In May 2020, George Floyd, a 46-year-old Black man, was choked to death by a white police officer in Minneapolis — his death prompting global calls for greater police accountability.

It’s in this climate, where there exists a public desire for greater scrutiny of law enforcement, where a fatal shooting has led to criminal prosecution of a Manitoba officer only once in the last two decades and where internal police discipline is fiercely shielded from public view, that inquests take on a particular significance.

Of the 29 deaths in Manitoba, inquests have been completed in just over half. (Fourteen inquests have been held, with one examining two deaths).

While inquests have been called in most of the other cases, none have progressed to the hearing stage. In fact, eight victims’ families have been waiting more than three years just to find out when the inquest might be scheduled.

That includes the families of Hudson, Collins and Andrews, whose deaths over 10 days ignited fury and concern across Canada. The officers responsible in each case were cleared of any criminal wrongdoing within a year and a half by the Independent Investigation Unit of Manitoba (IIU), which investigates “serious incidents” involving police.

Manitoba has a history of inquests marred by lengthy delays — more than 10 years in one case. And the effects are clear: as delays drag on, they leave families waiting years for answers, while evidence degrades and witnesses’ memories fade.

When inquests finally do take place, there are other issues.

A four-month Free Press investigation, which involved the review of more than 1,100 pages of inquest reports, testimony transcripts, court decisions and IIU investigations, as well as interviews with lawyers, victims’ families and justice officials, revealed how inquests into fatal shootings by police have tipped heavily in the favour of law enforcement.

In most cases, when an expert witness was called, police use-of-force instructors were the only ones to take the stand.  During several inquests, these experts came from the same force as the officer who pulled the trigger.

In each inquest, officers were supported by taxpayer-funded lawyers; victims’ families, meanwhile, are on their own to obtain counsel, and only managed to do so about half the time. Some of the lawyers were pro bono — essentially working for free — or paid by outside organizations.

The scope of the proceedings was typically narrow, with judges largely examining the — often very brief — confrontations between officers and the victim and the hours directly prior. Those killed were generally brandishing some kind of weapon.

And in two-thirds of the 14 completed inquests, judges opted to make zero recommendations — recommendations that are intended to prevent similar deaths in the future.

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In an interview with the Free Press during her last week as provincial court chief judge, Margaret Wiebe said prioritizing criminal cases — where an accused might be waiting in custody — over inquests was one of several “difficult decisions” the court had to make.

“I say that was difficult because we recognize that there are families who are waiting to have the inquests heard so that they can get some answers,” she said.

The number of all inquests — which require significant court resources — is increasing at a time when the justice system is grappling with a shortage of judges and clerks, Wiebe said.

“We just don’t have the resources to be able to have all these done and manage the criminal cases that we have,” Wiebe said. “So we’ve got competing realities.”

Despite the constraints, Wiebe emphasized it’s important for inquests to proceed in a “timely” fashion. When asked what “timely” means, she replied: “I think it’s a good question. And I think it depends on the circumstances.”

She said some backlogged inquests have already been scheduled for October and November. None involve a fatal shooting by police, the Free Press later determined.

The next inquest involving a deadly shooting is set for January 2024, nearly six-and-half years after the 2017 shootings of 33-year-old Evan Caron and 23-year-old Adrian Lacquette, who were killed about a week apart in Winnipeg.

Aimee Fortier, a court spokesperson, said inquests are being resumed, despite the judicial shortages and resource strain, with the assistance of retired judges.

System opaque, difficult to navigate

While the inquest process is technically open, it lacks transparency and is difficult for the public to navigate.

The courts could not provide a detailed list of upcoming inquests because a dedicated tracking system does not exist. Instead, officials had to look up cases involving fatal shootings by police individually, using the deceased’s name, to confirm whether a hearing date had been set.

Unlike other provinces, Manitoba does not post a list of ongoing inquests — and their status — online. The Chief Medical Examiner’s office was also not able to provide an accurate list of inquests called in recent years.

Justice Minister Kelvin Goertzen told the Free Press justice officials have not raised concerns to him about inquest delays. But, he said, if there were concerns from the officials running inquests, “certainly we would try to find resources — if that would be the limiting factor.”

Asked about the stoppage in scheduling inquests, Goertzen pointed to the COVID-19 pandemic, which led to stretched resources everywhere and the cancellation of many services. He also raised the possibility it was “more systemic.”

“I do think some of this has to be coloured in the light that we had a pretty extraordinary two, two-and-a-half year disruption of, well, the world, but particularly of the justice system,” he said.

An unnamed provincial spokesperson refused the Free Press’s request to interview an official with the Manitoba Prosecution Service about its inquest procedures, and instead provided a written response. The prosecution service appoints a lawyer, typically a Crown attorney, to run each inquest.

The spokesperson also declined a request for a copy of the prosecution service’s ‘Inquest Procedure Manual,’ instead directing the Free Press to submit a freedom of information application.

The Winnipeg Police Service declined a request to interview Chief Danny Smyth, opting to respond to written questions. The police said in its statement that of the 14 completed inquests from the last two decades, the judge “determined that the use of force was appropriate.”

“It should be noted that Use of Force encounters between WPS members and the public represent less than four-tenths of 1 percent of all Calls for Service,” the service also wrote, referencing statistics from its annual use of force reports to the city’s police board.

The RCMP, meanwhile, told the Free Press that 99.9 per cent of the service’s interactions with the public don’t result in any “reportable use of force.”

Nearly 8-year wait for inquest

In 2015, Steven Campbell was shot and killed by an RCMP officer in northern Manitoba.

The 39-year-old’s death is an outlier. It is the fatal shooting with the longest current inquest delay — now seven years and nine months — and the only one to date where the IIU has laid charges against an officer.

Then-Const. Abram Letkeman shot Campbell, as well as Campbell’s partner (she survived), after a car chase that began over Campbell’s suspected impaired driving.

Letkeman was convicted in 2019 of criminal negligence causing bodily harm, though he was acquitted of manslaughter. He avoided jail time.

Manitoba prosecutors appealed the former Mountie’s sentence, but the Supreme Court of Canada declined to hear the case in early 2022, closing the criminal matter.

An inquest into Campbell’s death was called in 2016. However, neither Campbell’s mother, his partner nor their lawyer, William Gange, have been contacted about it, Gange said in an email.

Since the IIU became operational in 2015, it has completed 16 investigations into fatal shootings by police, taking on average about a year for each review. In most cases, the province’s Chief Medical Examiner called an inquest a few months after the IIU investigations concluded.

Prior to the formation of the IIU, the police service responsible for a shooting typically investigated the case, before passing it off to another service for review. Several cases were weighed down by years-long delays throughout this process.

While the IIU’s formation seems to have had some success in reducing investigative delays, lags continue to persist after inquests are called.

“Witnesses die, people get sick, people start to have memory issues.”–Kris Advent

Kris Advent, a senior associate at Beresh Law in Edmonton, who acted as one of the lawyers for the family of Donald Moose during the inquest into his 2009 death while an inmate at Headingley Correctional Centre, said the ability to preserve evidence is hampered as time passes.

“Witnesses die, people get sick, people start to have memory issues,” he said.

And when it comes to providing testimony years after an event, he added: “People’s memories get pretty vague, people’s memories can distort — whether from just the passage of time or as people have conversations with other people.”

Meaghan Daniel, a Montreal-based lawyer whose practice includes a focus on inquests and on issues affecting Indigenous people, raised the issue of effects of delays on families.

“There’s something really personally tragic for those families,” she said.

“They feel a lot of passion to find out what happened to their loved one and to make their deaths meaningful — by making sure something comes of it that can save someone else.”

And, Daniel emphasized, when inquests are delayed, so too are the recommendations that could have made a difference during the intermediary period. Though, Daniel was quick to note, even when recommendations are made, they often go unheeded.

No legislative timelines for inquests

In 2008, Craig McDougall, a 26-year-old man from Wasagamack First Nation living in Winnipeg, was fatally shot by Winnipeg Patrol Sgt. Curtis Beyak, as he bared a knife at several officers outside his father’s West End home.

The inquest into his death didn’t occur for more than eight years.

On the eve of the inquest, which began in 2016, Craig’s father, Brian McDougall, dictated a message to his lawyer, Corey Shefman, to be released to the media.

“We’ve been waiting for eight years,” McDougall had said. “For eight years we haven’t had answers.

“When I was taken to the ground and put in handcuffs by police, as Craig lay in front of me in the yard, I asked the officer who had his knee on my back if my son was breathing, I didn’t get an answer.”

Judge Anne Krahn addressed the inquest’s “inordinate delay” in her report.

For one, she wrote, Brian McDougall’s health prevented him from testifying and attending fully, as he’d wished.

Witnesses remembered things differently and evidence was lost, she said.

Among her 16 recommendations, Krahn directed the province to consider setting “legislative timelines to ensure that Inquests are held within a reasonable time period.”

The province rejected the recommendation, saying recent changes it had made to the Fatality Inquiries Act, such as giving the Chief Medical Examiner more discretionary powers in calling inquests, would serve the same purpose.

Currently, just one timeline is legislated in the inquest process: judges must not take longer than six months from the end of the hearings to produce their report, which includes their conclusions and any recommendations.

In interviews with the Free Press, several lawyers argued inquests should be completed within a legislated period — such as two years.

“I can’t imagine the trauma and the pain (for families) of waiting and waiting.”–Sen. Kim Pate

Sen. Kim Pate has concerns with this approach. Pate, who was named to Canada’s Upper Chamber in 2016, was previously the longtime executive director of the Canadian Association of Elizabeth Fry Societies, where she was involved in the 2013 inquest into the in-custody death of teenager Ashley Smith in Ontario, as well as other inquests.

Pate told the Free Press a mandated timeline could result in inquests moving forward with critical documents missing.

Despite those sensitivities, Pate said there needs to be recognition that when inquests drag on, the lives of families are upended, as are those of all witnesses.

“I can’t imagine the trauma and the pain (for families) of waiting and waiting,” she said.

‘Just a name on a piece of paper’

The burden of delays weighed heavily on the widow of military veteran Roy Bell. He was shot and killed by Winnipeg Const. Wesley Johnson in 2007 while brandishing a baseball bat as he advanced at two officers.

Bell was dealing with post-traumatic stress disorder and other mental health struggles at the time he was killed, his wife said. She asked not to be named, hoping to maintain some privacy.

It would take more than 10 years for the inquest to be held.

Bell’s death occurred before the IIU was created and the delay was rooted in the consideration of charges. It went through the Winnipeg police, an external police service, and two Crown offices to determine whether charges were warranted.

For Bell’s wife, the inquest was not worth the wait — it seemed as though the entire outcome had been written before it even began, she told the Free Press in July.

She felt not so much the wife of the man who’d been killed, but more like a distant observer, watching something unfolding on television.

“I got nothing out of it,” she said. “I felt like we were just there taking up space.”

And her husband? “He was just a name on a piece of paper.”

The only witnesses to testify were the two officers involved: Johnson and his partner that day, Const. Saif Khan.

The worst part of all the waiting, she said, was “not knowing what was going to happen — or if anything was going to happen. Going day-to-day just like, ‘when’s this gonna end?’”

A close friend who accompanied Bell’s wife at the inquest and joined her during the recent interview, said the whole process just “felt like a formality.”

“It was just, let the police talk about what they went through and that’s it. Case closed,” the friend said.

The inquest lasted just two days. The judge made no recommendations.

In one way, Bell’s wife said, she was fortunate: her lawyer, Stephan Thliveris, was funded by the provincial government.

In truth, Thliveris acted pro bono throughout the 10-year process. In an email to the Free Press, he explained he “fibbed” to Bell’s wife about his fees.

Confident the request would be denied, based on his initial inquiries, Thliveris said he didn’t apply to the province for funding. And as the delays dragged on, Thliveris decided he couldn’t live with himself if he didn’t see it through.

“It was like eight and a half years of just grief — basically being stuck in quicksand,” Thliveris said in an interview, recalling Bell’s wife often calling or emailing him, asking for updates.

Few families have legal representation

The one silver lining for Bell’s wife — having a lawyer to navigate the inquest process — is far from the norm.

Of the 14 inquests into fatal shootings by police over the last two decades, only about half of the victims’ families had legal representation.

While the provincial government does have a program for families to request funding for legal counsel, it’s far from a sure thing.

An unnamed provincial government spokesperson said that since 2017, 10 applications for funding have been received under this policy.  Of them, five were approved.

The spokesperson declined to provide a breakdown on who received funding, who was denied, nor the nature of the inquest.

One lawyer, when asked if his fees were funded by the province, replied: “fat chance.”

“The government culture is denial,” the lawyer added.

The province takes the position that legal counsel is not a necessity for families because inquests are not adversarial — and inquest counsel can raise the families’ concerns, if deemed relevant.

Several lawyers told the Free Press this position is flawed, pointing out the inquest counsel is there to run the proceeding, not to represent a family’s interests or give them legal advice.

In the inquest into Craig McDougall’s death, Shefman requested provincial funding to help cover his fees representing Craig’s father. It was denied. A direct plea to then justice minister Heather Stefanson went nowhere.

After an appeal to the Manitoba Ombudsman — which called for Manitoba Justice to review its decision — the department funded 12.5 hours of Shefman’s time, at Legal Aid rates. This came out to just over $1,000. The remainder of Shefman’s fees — roughly $70,000 — were pro bono.

Shefman called the province’s funding system “intentionally broken.”

Families without counsel who wish to participate are expected to wade through the complex proceedings essentially as a lawyer would.

This includes: reviewing disclosure materials, such as 911 calls, dispatch records and autopsy reports; cross-examining witnesses; or it could mean trying to bring up systemic issues like racism and discrimination.

“If you don’t have someone there pushing to look at those systemic issues, in my experience, they won’t be looked at,” said Meaghan Daniel, the Montreal-based lawyer.

“If you don’t have someone there pushing to look at those systemic issues, in my experience, they won’t be looked at.”–Meaghan Daniel

She said it is typically family lawyers and civil society groups who try to bring forward systemic issues at inquests, while institutional parties, such as police, try to narrow the scope to the immediate moments before a death.

Manitoba judges have registered concern in several cases where Indigenous families lacked representation.

Nearly two decades ago, at the inquest into the 2001 fatal shooting of Donald Miles by a Winnipeg police officer, a judge called the province’s denial of the family’s funding request “regrettable.” He urged the government to pay for counsel in the future, if families are unable to do so.

Jerry Daniels, the grand chief of the Southern Chiefs’ Organization, which represents 34 Anishinaabe and Dakota Nations in Manitoba, said in a statement to the Free Press that the SCO is “extremely concerned” about First Nations citizens encountering barriers when seeking answers about a loved one who died as a result of police actions.

He said First Nations citizens must receive support to access legal counsel during inquests.

“An inquest can be an intimidating and long process with many different procedures and witnesses,” he said.

“Family members may be triggered during the process as they navigate a process that is focused on the death of their child and the family members sit across from the person who was involved in the death of their child.”

Should Crown attorneys conduct inquests?

Meanwhile, issues surrounding inquest counsel have long been a source of contention.

In 1991, the commissioners of a far-reaching inquiry into the treatment of Indigenous people in Manitoba by the courts and police argued Crown attorneys should not be conducting inquests examining shootings by officers, given the possibility of conflict — or the perception of conflict — due to their complementary roles.

Aboriginal Justice Inquiry of Manitoba commissioners Alvin Hamilton and Murray Sinclair recommended independent counsel be engaged at the outset.

The uptake of this recommendation has been spotty over the last two decades. There was compliance until 2011, but Crowns were again at the helm in the years since, according to a Free Press analysis of completed inquests.

However, independent counsel has been appointed in several upcoming inquests, according to an unnamed provincial spokesperson.

The cases include:

• Eishia Hudson;
• Stewart Andrews;
• William Weiss, a 33-year-old First Nations man who was fatally shot by the Winnipeg police in 2022; and
• Machuar Madut, a 43-year-old South Sudanese man who was fatally shot in 2019, also by Winnipeg police.

It is not clear from the Manitoba Prosecution Service’s 2015 policy on appointing independent counsel, a copy of which was provided by the provincial spokesperson, why there’s been a discrepancy.

The prosecution service had, by 2017, a policy not to use Winnipeg-based Crowns for inquests involving the city’s police, in favour of ones from elsewhere in Manitoba. This often creates the “necessary degree of independence,” the appointment policy says.

Shefman said in an email the geographic shift is “an improvement, but it’s hardly a solution.”

For those who have had direct contact with the justice system, it isn’t a question of whether there is a possibility, or perception, of conflict. For many, the conflict is very real.

In 2015, Shefman filed a motion seeking to replace the Crown in the inquest in Craig McDougall’s death with independent counsel.

In an accompanying affidavit, Craig’s father wrote that he felt the criminal justice system works as a “factory” that’s meant to shuffle Indigenous people through it — and one where Crowns play a central role.

In a ruling, the judge noted the reasons why independent counsel had been appointed in some cases and not others were “not available or transparent,” but she concluded there was no specific evidence before her to show proof of bias among Crowns.

The motion was denied.

The Free Press is interested in hearing about your experiences with the inquest system. If you have something you’d like to share, please contact us at: marsha.mcleod@freepress.mb.ca.