TRIBUNALS ONTARIO
Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission civile de l’Ontario sur la police
Files: 23-ADJ-002 and 23-ADJ-004
Motion for Leave to Appeal under subsection 87(4) of the Police Services Act, R.S.O. 1990, C.P, 15, Regarding a Penalty decision
Between:
Brad DeBungee and Jim Leonard
and
Staff Sergeant Shawn Harrison
And
Thunder Bay Police Service
And
Independent Police Review Director
Moving Party/Complainants
Respondent on Motion
Respondent on Motion
Intervenor
Written Submissions:
Asha James, Amanda Micallef, counsel for the Complainants;
David Butt, counsel for Shawn Harrison;
Joel Dubois, Veronica Blanco-Sanchez, counsel for Thunder Bay Police Service;
Morvarid Shojaei, counsel for the Independent Police Review Director;
Motion in Writing
Adjudicator: L. Hodgson, Vice Chair
introduction
1This is a motion by the Complainants Bradley DeBungee and Jim Leonard seeking leave, pursuant to section 87(4) of the Police Services Act (the PSA), to appeal the penalty ordered against Officer Shawn Harrison (the Respondent Officer). Officer Harrison was found guilty of neglect of duty and discreditable conduct on July 19, 2022. In reasons dated February 3, 2023, he was demoted from staff sergeant to sergeant for an 18-month term. Officer Harrison was also ordered to complete Indigenous Cultural Competency Training.
2The Respondent Officer has appealed from both the finding of misconduct and the penalty imposed. Pursuant to section 87(2) of the PSA, the Commission is required to hold a hearing upon receiving a notice of appeal from a police officer.
3The Complainants’ motion for leave to appeal penalty is supported by the Thunder Bay Police Service (TBPS) and the Ontario Independent Police Review Director (OIPRD). The motion is opposed by the Responding Officer.
DECISION
4The Complainants are granted leave to appeal the penalty decision.
BaCKGROUND
5This matter relates to the investigation by the Respondent Officer in 2015 and 2016 into the death of Stacey DeBungee who was found in the McIntyre River in Thunder Bay on October 19, 2015. The Respondent Officer was
the lead TBPS investigator who determined that Mr. DeBungee’s death was not suspicious in nature.
6Prior to the hearing, on May 30, 2022, the Respondent Officer pled guilty to misconduct by neglect of duty contrary to subsection 2(1)(c)(i) of the Code of Conduct contained in O. Reg. 268/10 under the PSA (the “Code of Conduct”). His plea was based on information contained in an Agreed Statement of Facts and was specific to him failing to contact a civilian who had offered to share relevant information.
7Following the hearing, the Hearing Officer, Retired Superintendent Greg Walton, concluded “The totality of the evidence, including failing to formally interview witnesses, failing to review reports and prematurely concluding that the sudden death of Stacey DeBungee was non-criminal when the evidence did not support the conclusion that foul play had been excluded, amounts to neglect of duty.”
8The Respondent Officer was also found guilty of discreditable conduct in that he failed to treat or protect persons equally without discrimination with respect to police services, contrary to subsection 2(1)(a)(i) of the Code of Conduct. The hearing officer found that the “resulting negligent investigation was so deficient, that [the responding officer] should have been aware that his conduct was adversely affected by an unconscious bias.”
9The investigation into the sudden death of Mr. DeBungee has been the subject of significant public scrutiny. A second complaint by the Complainants about systemic anti-Indigenous racism within the TBPS resulted in a two-year investigation and a 206-page report by the OIPRD.
The report, “Broken Trust: Indigenous People and the Thunder Bay Police Service”, which included findings specific to the Stacey DeBungee investigation, was released in December 2018 generating significant media attention. In 2017 the Commission’s investigative division commenced an
investigation headed by Senator M. Sinclair after Indigenous leaders raised concerns about the Thunder Bay Police Services Board’s oversight following a series of deaths and race-based violence against Indigenous peoples in Thunder Bay. On November 1, 2018, Senator M. Sinclair released the report titled “Thunder Bay Police Service Investigation, Final Report”. Both reports are referred to in the Hearing Officer’s decision.
10Additionally, at the time of the police investigation into the sudden death of Mr. DeBungee, there was an ongoing inquest into the deaths of seven First Nations youth. Five of these youth, similar to Mr. DeBungee, were found in a river in Thunder Bay.
REASONS
The Criteria for Leave is Met
11Section 87(4) of the PSA states that the Commission may hold a hearing, if it considers it appropriate. This Commission has identified three circumstances in which granting leave to appeal would be appropriate:
The decision is clearly wrong on its face and the appeal involves matters of such importance that leave ought to be granted.
There is a conflicting decision of the Commission on the matter involved in the proposed appeal and it is desirable that leave be granted.
The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large.
The appellant need only meet the criteria of one of the three conditions (Grychtchenko and McCartney and Toronto Police Service, 2015
ONCPC 20).
12The Complainants seek to argue on appeal that the Hearing Officer failed to
give sufficient weight to the aggravating factor of the public interest and failed to appropriately consider the perspective of the Indigenous community when determining penalty. They submit that leave should be granted on either the first or third branch. The Respondent Officer submits that leave should be denied as there was no error of law and the weighing of penalty factors does not rise to the level of significant importance.
13The Complainants have met the criteria of the third branch of the test for leave. The matters raised in the proposed appeal are of significant importance to the policing profession as a whole and the community at large.
14As noted, this was a highly scrutinized matter attracting significant media attention and triggering a separate, comprehensive investigation and report by the OIPRD into systemic, anti-Indigenous racism within the TBPS. In Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, the Ontario Court of Appeal considered the issue of whether a preliminary administrative hearing related to these misconduct charges should be open to the public. There, the court observed (at para.70) that the issues surrounding Stacey DeBungee's death generated significant media and community interest in Thunder Bay and beyond.
15I find that the issues raised by the Complainants and the appropriate penalty in the circumstances of this case are matters of significant importance to both the policing profession and the community at large. The issues deserve to be resolved by full appellate review.
Order
16The Complainants are granted leave to appeal the penalty decision of the Hearing Officer.
DATED at Toronto: May 11, 2023
___________________________ L. Hodgson, Vice Chair