August 8, 2020

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Letter of the law: WPS, IIU clash in court

A precedent-setting legal dispute between the Winnipeg Police Service and the Independent Investigation Unit of Manitoba has taken an important step forward.

Competing interpretations of the rules governing police clashed Tuesday in the Court of Queen’s Bench, as lawyers representing the two agencies presented their arguments for the first time in open court.

At the centre of the case is the question of whether WPS cadets — civilian employees of the police service — can be compelled to hand over their notes to IIU investigators.

"At its core, this dispute is between two competing interpretations of a section of the Police Services Act… We suggest there is a duty owed by the Winnipeg Police Service to the IIU that is not being satisfied," IIU lawyer Samuel Thomson said.

The IIU launched a lawsuit against the city police force in April 2019, after it spent nine months trying to get the WPS to hand over internal files the watchdog agency says are needed to properly investigate an in-custody death.

Matthew Richards Fosseneuve died in police custody on July 28, 2018. (Facebook photo)

Matthew Richards Fosseneuve died in police custody on July 28, 2018. (Facebook photo)

On July 28, 2018, Matthew Richards Fosseneuve, 34, died after being shot with a Taser by police. Two cadets were on scene and witnessed the events leading up to his death.

The IIU has made repeated requests to review the cadets’ notes, as well as interview the cadets — both inquiries have been denied.

The legislation governing law enforcement in Manitoba is the Police Services Act.

It specifies witness officers — those who saw an incident under IIU investigation — are required to turn over their notes to investigators. Subject officers — those who are being investigated and could possibly face criminal charges — are not required to do so.

Except for these two instances, the Police Services Act is silent on the disclosure of documentation. The legislation does not specify whether police agencies are expected to hand over the entirety of investigative files to the IIU.

"It’s important to note this scheme… doesn’t expressly address the issue of what happens to an investigative file in possession of a police service once the IIU — as the provision is worded — assumes conduct of the investigation," Thomson said.

"There are certain narrow provisions in the regulation which refer to what specifically must be done with police officer notes, but this is the only provision, we’d suggest, in the entire scheme which expressly addresses disclosure issues."

After news of the lawsuit broke last year, Manitoba Justice Minister Cliff Cullen admitted there were gaps in the legislation. The province is currently conducting a review of the Police Services Act.

Thomson argued if the WPS’s position is upheld by the court, the IIU will not be able to access documents needed to provide proper oversight of police — the core of the agency's mandate.

"It would run counter to the scheme for the IIU to have less documents at its disposal for the investigation of a police officer than if the investigation had been kept by the police service. We suggest this is against the very purpose of the IIU," Thomson said.

WPS lawyer Shannon Hanlin countered the obligations of police agencies towards the IIU are clearly spelled out in the Police Services Act. In other words, where the legislation is silent on matters of disclosure, the WPS cannot be compelled to hand over documents.

Hanlin further claimed the mandate of the IIU is to provide an independent investigation of police conduct, so the agency shouldn’t rely on police files to carry out that task. Instead, she said the IIU should do its own legwork.

"Members of the IIU have all the powers, duties, privileges and protections of a peace officer or a constable," Hanlin said. "If people or agencies won’t voluntarily give them what they want, this is a dilemma faced by all police agencies who conduct investigations… That’s a barrier that all investigators face, whether it’s the IIU or police services."

“At its core, this dispute is between two competing interpretations of a section of the Police Services Act… We suggest there is a duty owed by the Winnipeg Police Service to the IIU that is not being satisfied.” – IIU lawyer Samuel Thomson

Hanlin said WPS cadets are private citizens and therefore, barring revision of the legislation, have the same right as all private citizens to refuse to sit down for an interview with IIU investigators or decline to relinquish their incident notes.

However, Hanlin conceded when it comes to WPS investigations, cadets are required to surrender such documentation.

The judge has reserved decision on the case.

It remains possible further hearings could be scheduled. No timeline was provided for when a decision would be delivered.

ryan.thorpe@freepress.mb.ca

Twitter: @rk_thorpe

Ryan Thorpe

Ryan Thorpe
Reporter

Ryan Thorpe likes the pace of daily news, the feeling of a broadsheet in his hands and the stress of never-ending deadlines hanging over his head.

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