Hey there, time traveller! This article was published 24/10/2015 (2060 days ago), so information in it may no longer be current.
It seems to me the recent series of high-profile police-involved deaths in North America has sparked unprecedented public concern about law enforcement attitudes about, and treatment of, minorities.
Which makes the Craig Vincent McDougall case all the more notable. And curious.
It has been more than seven years since the 26-year-old First Nations man was shot dead by police outside a friend's home on Simcoe Street. Yet the inquest, mandatory in Manitoba under such circumstances, has yet to start. That's not the only disturbing aspect of the case, though.
The McDougall family lawyer, Corey Shefman, wants an independent counsel appointed to conduct the inquest because of what he argues is an inherent, perceived conflict of interest when Crown attorneys handle cases involving police officers with whom they work.
He's not going to get an independent counsel.
As Shefman argued in front of Associate Chief Judge Anne Krahn, who will eventually hear the inquest evidence and is a former Crown attorney herself, there have been five inquests called into Manitoba police-related shooting deaths in recent years. All five inquests were conducted by independent counsel. Still, there have been at least three other deaths -- all involving police arrests -- where the inquests were led by Crown attorneys.
The appointment of independent counsel seems to follow the logic outlined in a 2013 policy directive from Manitoba Justice. It addressed concerns about Crown attorneys and perceived conflict of interest when they prosecute police officers, among others. It reads in part: "The purpose of this policy is to ensure confidence in the justice process by providing for the appointment of independent counsel in those situations where a reasonable person would perceive that an accused person may receive differential treatment because of his/her relationship with Manitoba Justice."
Inquests, where there is no accused, are not mentioned. In any event, even in the face of the spirit of the policy directive, Krahn ruled against Shefman's conflict-of-interest motion.
Krahn wrote this as her bottom line: "The absence of any specific evidence to establish that the Crown's working relationship with the police is such that there is a real risk of a failure to carry out their impartial role as Crown counsel would conclude that there is not a reasonable apprehension of bias in a Crown attorney from Manitoba Prosecutions acting as Crown counsel at this inquest. I therefore find that counsel from Manitoba Prosecutions is not in a conflict of interest based on their working relationship with members of the Winnipeg Police Service."
If Judge Krahn believes there is no "specific evidence" the Crown's working relationship with police is a potential issue, she either hasn't read, or should review, Volume 2 of the Aboriginal Justice Inquiry.
If she had been at the inquest into the 1988 police shooting death of John Joseph Harper, she wouldn't have to read it. Or if she had been in the room where AJI co-commissioners Murray Sinclair and Alvin Hamilton listened to the testimony of police-friendly Crown attorney Bill Morton, she might have a different view. In a section of the AJI titled The Conduct of Crown Attorney Morton, Sinclair and Hamilton wrote: "We recognize that many view the Crown attorney as being an advocate for truth. Viewed in that way, Crown attorneys supposedly are above the push and shove of the adversarial fight; they are to be fair-minded and even-handed without concern for one side or the other in the fight; concerned to see that justice is done and is seen to be done. These are admirable thoughts indeed... The difficulty is that in this case they did not match reality."
The judges referred to the close working relationship between Crown attorneys and police, and wrote this in conclusion: "It is our opinion that any Crown attorney faced with the task of conducting an inquest at which the conduct of a Winnipeg Police Department member is called into question is at the very least in a position of a perceived conflict of interest, if not a real one... "
Which is why their report called for the Fatality Inquiries Act to be amended to have independent counsel appointed to conduct inquests involving police-involved deaths.
The Manitoba government has never adopted that recommendation.
The latest updates on the novel coronavirus and COVID-19.
That's what I asked the government in an email Thursday. The answer arrived Friday.
"The department is currently reviewing the Fatalities Inquiry Act and the role of inquest counsel will form part of this review."
I had one more question for the government spokesman. The AJI reported nearly 25 years ago. The police-involved shooting of Craig McDougall happened more than seven years ago. When did Manitoba Justice decide to review the role of inquest counsel?
There was no response.
Reviewing the practice
Associate Chief Judge Anne Krahn ruled this week that a Crown attorney, not independent counsel, could conduct the inquest into the 2008 police-involved shooting of Craig Vincent McDougall. Yet, in recent years, Manitoba Justice has made the decision to appoint independent counsel to lead inquests into police shootings, while allowing Crown attorneys to lead inquests in which someone dies while being arrested by police. Here are the cases: