Troubling Trends in Indigenous Investigation in Thunder Bay (Pt. 2)

Indigenous relations with the Thunder Bay Police Service (TBSP) have been an ongoing issue. In the previous article, we discussed the appeal of Officer Harrison’s conviction. The TBPS Chief of Police asked the Ontario Provincial Police (OPP) to review Mr. DeBungee’s investigation and the investigative report confirmed there were numerous investigative errors.^[1]

In this article we discuss Brad DeBungee and Jim Leonard v. Staff Sgt. Harrison and Thunder Bay Police Service,^[2] the appeal from the deceased’s family about the penalties imposed. Officer Harrison’s penalties were a demotion from Staff Sergeant to Sergeant for 18 months and attending Indigenous cultural competency training.

The lack of confidence in TBSP investigations involving Indigenous people is a systemic issue. Around the time of Mr. DeBungee’s case, TBPS was facing intense criticism of their handling of the investigation of seven young Indigenous persons who died in similar circumstances, which prompted the Seven Young Inquest.^[3] In 2017, the Ontario Civilian Police Commission hired Senator Murray Sinclair because the Indigenous community were tired of the inability of TBPS Board oversight over police officers and how they were treating their community members.^[4]  In 2018, Senator Sinclair released a report called “Thunder Bay Police Service Board Investigation, Final Report” (Sinclair Report) that highlighted race-based violence against indigenous peoples.^[5]  A few days before, the Office of the Ontario Independent Police Review Director (OIPRD) released a report called “Broken Trust: Indigenous People and the Thunder Bay Police Service.[6] A case review of DeBungee's investigation highlighted the systematic racism on the institutional level at the TBSP. Both reports ignited the public and drew more attention to the institutional racism at the TBSP.

The DeBungee family appealed the Hearing Officer’s decision on penalties for Officer Harrison because they believed the Hearing Officer did not give proper weight to the public interest and reconciliation. The Commission did agree with their argument that public interest and reconciliation are important factors, but the high standard remains for the Commission to replace a decision maker's decision.^[7]

Public Interest

Public nterest includes the well-being of the public which considers safety, security, and health to name a few examples. The intense relationship between the Indigenous people and the TBSP was beyond its boiling point and the Seven Youth Inquest showed the lack of safety and protection for Indigenous lives in Thunder Bay.^[8] 

In the Broken Trust Report, OIPRD interviewed some officers that expressed racist ideologies and analyzed how that affects the policing of the Indigenous. The DeBungee investigation was one of the case examples where racial stereotypes impacted the investigation.

There were recommendations for cultural competence training from Indigenous leaders, elders and the Ministry of the Attorney General, including psychological testing to eliminate applicants expressing racism in the prescreening phase.

The Sinclair Report reviewed and recommended changes to the Thunder Bay Police Service Board (TBSPB) because of the lack of accountability, transparency, and oversight over their police officers. The DeBungee investigation was used as an example of how racial stereotypes can negatively impact investigation and portrayal of indigenous people in media coverage. The TBSPB had failed in their obligation to actively address allegations of systemic racism within their police forces. The investigation found that interested indigenous community members were routinely excluded from policy development and consultation on issues that related to issues to indigenous communities.

There were concerns from the deceased’s family and Rainy River First Nation about the quality of this investigation given the history of the TBSP and their death investigations of indigenous people.

The complainants (Mr. Leonard of the Rainy River First Nation and Brad DeBungee) first argued that the Hearing Officer put too much weight on Officer Harrison’s remorse over the public interest.  Mr. Leonard testified to the erosion of public confidence in the TBSP and the lack of penalty for Officer Harrison contributed to the sense of complacency and fears between the Indigenous community and the TBSP. They argued that Officer Harrison’s termination would be warranted on public interest alone.

The Hearing Officer acknowledged the Broken Trust Report, and the Sinclair Report showed the Indigenous community's interest in holding the TBSP accountable for their actions. Officer Harrison’s dismissal would be a breach of natural justice and procedural fairness to punish one officer for the institutional racism of the police service. The family argued that Officer Harrison’s dismissal would satisfy the public, but the Hearing Officer found that dismissal would do very little to build public confidence in the TBSP.

The Commission found the Hearing Officer properly considered the public interest and the weight of the relevant principles is at the discretion of the Hearing Officer. The issue is that the Hearing Officer and family have different perspectives on the weight and importance of the public interest in determining the appropriate penalty for Officer Harrison. However, the Commission stated that the Hearing Officer did not have a requirement regarding how much weight to put on relevant factors.^[9] The Commission will not interfere even if they would come to a different outcome; nor would they reweigh any factors to determine the penalty as it is not their role.^[10] The Hearing officer did not ignore the relevant factors or principles so the Commission upheld the decision.

Reconciliation

The second issue on appeal was whether reconciliation was properly weighed.  “Reconciliation is necessary to build mutual respect, honour and dignity between Indigenous communities, the Crown and non-indigenous populations in Canada.”^[11]   According to Chippewas of Saugeen First Nation v Town of South Bruce Peninsula et al, there must be disruption of the status quo for reconciliation to be achieved.^[12] The family believed Officer Harrison’s penalties were another example of the status quo and termination was necessary for disruption and justice for the Indigenous community.^[13]

The Hearing Officer also looked at how other officers were penalized who had similar behavior to determine that dismissal would not be the appropriate penalty.^[14] The family argued that the dismissal would be a positive step toward reconciliation and justice, but the Hearing Officer stated it would be a superficial step.

Disruption needs constant and intentional work for the indigenous communities and the TBSP to move towards reconciliation. Fostering a positive relationship between the TBSP and the Indigenous community will not be dependent on Officer Harrison’s dismissal. Both groups must make the decision to grow a positive relationship. The Hearing Officer concluded that dismissal of one officer would not cause a disruption because the mistrust and lack of public safety of Indigenous people is too deep-rooted.^[15]

On the contrary, the Hearing Officer determined that cultural competence and education would make Officer Harrison an asset to the TBSP as they work to repair their relationship with the Indigenous community.[16] The focus should be on using existing and creating new resources and assets of the TBSP to grow a more culturally competent workforce, rather than a single focus on one officer’s actions.

In coming to a decision on appropriate penalties for Officer Harrison, the Hearing Officer must include the unique and regional considerations for Thunder Bay and the Indigenous community.^[17] The Hearing Officer must consider reconciliation here because it only applies to Indigenous populations. The sanctions placed on Officer Harrison may be different from other regions in Ontario because of Thunder Bay's history of policing garners special attention. The Hearing Officer stated it is not the job of the disciplinary tribunal to right the wrongs of the entire police but rather to penalize the officer for their unprofessionalism, negligence, and anti-Indigenous bias.

The Commission repeated that it cannot substitute its decision if the decision maker has properly considered the relevant principles.  The Hearing Officer considered the relevant principles for Officer Harrison’s penalty, therefore, the Commission upheld Officer Harrison’s penalties.

Conclusion

In both cases, the Commission determined it would not reverse any of Officer Harrison’s penalties. The Commission confirmed that there was a high standard before it would substitute a decision by a decision maker. Both appeals failed as the Hearing Officer was found to have made a reasonable decision with respect to the convictions and penalties applied to Officer Harrison.

 

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