Troubling Trends in Indigenous Investigation in Thunder Bay (Pt. 1)

On October 19, 2015, Stacey DeBungee, an indigenous member of the Rainy River First Nation was found dead in Thunder Bay’s McIntyre Township. Staff Sergeant Shawn Harrison (Officer Harrison) was the lead investigator and six years later was found guilty of neglect of duty and discreditable conduct.^[1] Officer Harrison was demoted to Sergeant for 18 months and required to complete Indigenous cultural competence training. He appealed the Hearing Officer’s findings and penalties to the Ontario Police Commission. Additionally, Brad DeBungee and Jim Leonard (family of Mr. DeBungee and Chief of the Rainy River First Nation) appealed the Hearing Officer’s penalty as they wanted Officer Harrison dismissed from the police service.

The court concluded that the Hearing Officer was owed deference and the Commission would not interfere or substitute the Commission’s findings and penalty to Officer Harrison in place of the Hearing Officer.^[2]

Facts

The Thunder Bay Police Service received a call reporting a body found in the river. Officer Harrison, three uniformed constables, and a paramedic arrived and secured the scene.  The scene was released the same day without following proper procedure such as next of kin notification or post-mortem report.

Officer Harrison’s assumptions were shown throughout his notebook despite scientific evidence disproving them. Officer Harrison wrote in his notebook that there were no obvious signs of trauma/foul play and released a press statement that the "initial investigation does not indicate a suspicious death." Officer Harrison made an assumption that Mr. DeBungee was drunk which caused his drowning. However, the coroner concluded that Mr. DeBungee’s intoxication was not the cause of his drowning.

There were other procedures and protocols that were not followed by Officer Harrison.  A witness told one of the uniformed constables they saw two “Native Canadians” drinking and getting into a physical altercation, but Officer Harrison did not follow up. Instead of attending the next of kin notification, Officer Harrison sent two officers. A health card belonging to David Sapay was found at the scene but he was not interviewed by the TBSP until five months later.

Two months later, the deceased’s family decided to hire a private investigator due to the lack of confidence in the police investigation. David Perry, private investigator, conducted a thorough investigation that revealed evidence not found by the TBSP. Mr. Perry’s investigation found that the deceased's debit card was used after the body was recovered. He interviewed various people connected to the deceased - some who were contacted for the first time. Also, he tried to contact Officer Harrison and left his contact details but Officer Harrison did not get in contact with him. Officer Harrison held onto his belief that alcohol intoxication contributed to the death of Mr. DeBungee which called into question anti-indigenous bias within the TBSP.

Standard of review

The Commission stated that the Hearing Officer’s use of specialized knowledge of the procedures of criminal investigation was not out of scope when reviewing the investigation. The Hearing Officer was reviewing the credibility of assessments and facts so deference must be owed.^[3] None of the facts for the appeal tackled questions of law so the standard of review was reasonableness.

There were two appeals to the Hearing Officer’s decision to convict and penalize Officer Harrison. In the first appeal, Officer Harrison appealed the conviction for neglect of duty and discreditable conduct. In the second appeal, the family requested that Officer Harrison be dismissed from the TBSP instead of the penalty laid by the Hearing Officer.

Neglect of duty

After the OPP’s report, charges were eventually brought, and Harrison pleaded one count of neglect of duty. The Hearing Officer found that there were a number of deficiencies in Harrison’s conduct beside failing to contact Mr. David Perry who discovered new evidence. First, Harrison having a predetermined conclusion despite evidence contradicting his conclusion. The Hearing Officer found that the lack of openness led to “shoddy police work” instead of following the evidence. Second, releasing the scene on the same day without completing the next of kin notification which goes against standard procedure. As the lead investigator, he should have led and attended the next of kin notification instead of delegating the duty to two constables. Lastly, the failure to interview the witness on the scene and interviewing David Sapay five months later. The Commission considered the Hearing Officer’s findings to be reasonable and amounted to neglect of duty. 

Discreditable conduct

In the Code of Conduct under the Police Services Act, an officer engages in discreditable when they fail in their duty to treat protected persons without discrimination. For discreditable conduct to be found there must be a morally blameworthy act. The Hearing Officer found that Harrison showed unconscious bias and should have been aware of the impact of systematic discrimination against the Indigenous population. Because of this and his experience as an investigator, he should have conducted a thorough investigation instead of “shoddy” investigation.

Officer Harrison’s argument against discreditable conduct was that there was no direct evidence that he held anti-Indigenous bias. Additionally, Officer Harrison argued that he should not suffer the consequences of the TBSP’s poor relationship with Indigenous people. The Hearing Officer agreed that there was no direct evidence of anti-Indigenous bias so they reviewed the indirect evidence to come to their conclusions, finding Officer Harrison’s premature conclusions were based on racist stereotypes about Indigenous persons and that was the only explanation for the substandard investigation work. 

The Supreme Court of Canada defined unconscious bias as “beliefs and perceptions that operate beneath our level of awareness”.^[4] Using this definition, Officer Harrison’s argument was that he is being punished for something he was not aware of.

The Hearing Officer reviewed Officer Harrison’s inactions and deficiencies that showed unconscious bias toward Mr. DeBungee’s Indigenous status. One piece of indirect evidence was the prematurely decided conclusion of the investigation based on Mr. DeBungee’s Indigenous status. The Supreme Court has previously addressed Indigenous stereotypes regarding alcohol that have negative impacts for Indigenous people.^[5] Despite scientific evidence that alcohol was not the cause of death, Officer Harrison did not take any further steps to determine why Mr. DeBungee was found in a river. The commission agreed with the Hearing Officer’s inference that the investigative deficiencies were based on racial stereotypes.

The Commission asked if prejudicial history was used by the Hearing Officer to determine Harrison’s unconscious bias and discreditable conduct.  Harrison believed he was being targeted for anti-Indigenous bias when it was common within the TBSP. As mentioned before, the OPP’s report confirmed a substandard investigation conducted by Harrison. There was a long and contentious history between the Indigenous communities and the TBSP.

During the DeBungee investigation, there was an inquest of five other cases where Indigenous people were found dead in nearby rivers and the conclusion of their investigations was undetermined. The Commission stated that Officer Harrison was aware of the systematic discrimination and the inquest but instead conducted a substandard investigation. Brad DeBungee expressed these concerns that anti-Indigenous bias would impact the case when meeting Officer Harrison with the events going on at the time.

The Commission upheld the Hearing Officer’s decision finding Officer Harrison guilty of neglect of duty and discreditable conduct.

Public Interest and Reconciliation

The DeBungee family appealed the Hearing Officer’s decision on penalties for Officer Harrison because they believed he did not give proper weight to the public interest and reconciliation. The Commission did agree that public interest and reconciliation are important, but it is a high standard to change a decision maker's decision.

The lack of confidence in TBSP investigations involving First Nations people is a systemic issue. Around the time of the Mr. DeBungee investigation, TBPS was facing intense criticism for their handling of an investigation of a young person who died in similar circumstances, which prompted an inquest involving their handling of the investigation. In 2017, TBPS Chief of Police asked the Ontario Provincial Police to review Mr. DeBungee’s investigation. The investigative report confirmed there were numerous investigative errors from the initial response, scene examination, next of kin notification and witness interest. Also in 2018, the Commission’s investigative division released a report that highlighted race-based violence against Indigenous peoples.

The public complaints (Mr. Leonard 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 contributes to the sense of complacency and fears between the Indigenous community and the TBSP.

The Commission said the Hearing Officer did properly consider public interest and the weight of the relevant principles is at the discretion of the Hearing Officer.  Also, the Commission clarified that their role is not to replace a decision maker's decision, even if they would come to a different outcome from the Hearing Officer. The Hearing officer did not ignore the relevant factors or principles, so the Commission upheld the decision.

The second issue on an appeal, reconciliation, was not properly weighed in the penalties for Officer Harrison. In Chippewas of Saugeen First Nation v. Town of South Bruce Peninsula et al, reconciliation must be achieved and disruption of the status quo.^[6] Officer Harrison’s behavior was another example of the lack of confidence in the TBSP and the Indigenous community, and for the complainants, termination was their answer for justice.

The family argued that the dismissal would be a positive step toward reconciliation and justice. The Hearing Officer acknowledged that the dismissal would be a positive step, but it does not erase mistrust and start a clean slate between the Indigenous community and the TBSP. The Hearing Officer also remarked it would be superficial and it was the responsibility of the community leader and the TBSP to foster a positive relationship.

The Commission repeated that it cannot substitute its decision if the decision maker has properly considered the relevant principles. The Commission reviewed evidence that was considered by the Hearing Officer. The Hearing Officer looked at how other officers were penalized whose behavior was similar to Officer Harrison to determine that dismissal would not be the appropriate penalty. 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. As a whole, the Hearing Officer considered the relevant principles for Officer Harrison’s penalty.

In both cases, the Commission determined they would not reverse any of Officer Harrison’s penalties. The Commission confirmed that there was a high standard before they would substitute a decision by a decision marker. Both appeals failed as the Hearing Officer’s decision was found to be reasonable.

 

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