TRIBUNALS ONTARIO
Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission civile de l’Ontario sur la police
File: 23-ADJ-002
Between:
Staff Sergeant Shawn Harrison
Appellant
and
Thunder Bay Police Service
Respondent
and
Brad DeBungee and Jim Leonard
Public Complainant Respondents
and
Office of the Independent Police Review Director
Intervener
Decision and Order
Panel: Laura Hodgson, Vice Chair Emily Morton, Vice Chair Kate Grieves, Member
Participants: David Butt, counsel for Shawn Harrison Asha James, Amanda Micallef, counsel for Public Complainants Joel Dubois, counsel for Thunder Bay Police Service Morvarid Shojaei, counsel for the Office of the Independent Police Review Director
Held by Videoconference: October 17, 2023
Introduction
1In a decision dated July 19, 2022, the Hearing Officer, Superintendent (Ret.) Greg Walton, found the Appellant, Officer Harrison, guilty of neglect of duty and discreditable conduct contrary to s. 2(1)(c)(i) and ss. 2(1)(a)(i) of the Code of Conduct under the Police Services Act, R.S.O. 1990, c. P. 15 (the PSA). In his penalty disposition dated February 3, 2023, the Hearing Officer ordered that the Appellant be demoted from Staff Sergeant to Sergeant for 18 months and attend Indigenous cultural competency training.
2Officer Harrison appeals the findings of misconduct and penalty.
3The Public Complainants also sought and were granted leave to appeal the penalty. The Public Complainants’ appeal from penalty was dismissed and is addressed in a separate decision (see Brad DeBungee and Jim Leonard v. Staff Sgt. Harrison and Thunder Bay Police Service, 2024 ONCPC 23-ADJ-004).
4For the reasons that follow, the Appellant’s appeal is dismissed. The Commission confirms the Hearing Officer’s findings of misconduct and the penalty imposed.
OVERVIEW
5Tragically, eight years ago Stacey DeBungee, an Indigenous man of the Rainy River First Nation, was found dead in Thunder Bay’s McIntyre River. The misconduct charges relate to the police investigation into Mr. DeBungee’s death. The Appellant was the lead Thunder Bay Police Service (TBPS) investigator and supervising officer assigned to the sudden death investigation. The Appellant was removed from the investigation after a public complaint was filed with the Office of the Independent Police Review Director (OIPRD).
6The TBSP charged the Appellant, as well as a subordinate officer, with two counts of misconduct as a result of the investigation into Mr. DeBungee’s death.
7The Appellant, prior to his misconduct hearing, pleaded guilty to the charge of neglect of duty. His plea was specific to acknowledging his refusal to speak with a private investigator who had information about Mr. DeBungee’s death. The Appellant disputed all other particulars alleged in the neglect of duty count and pleaded not guilty to the charge of discreditable conduct.
8At the conclusion of the hearing, the Hearing Officer found the Appellant guilty of neglect of duty based on his plea. He also concluded that the Appellant’s investigation into the death of Mr. DeBungee, including prematurely concluding that the sudden death was non-criminal, failing to interview witnesses and failing to secure the scene, also constituted neglect of duty. Additionally, the Hearing Officer found the Appellant guilty of discreditable conduct in that he failed to treat Mr. DeBungee and his family equally, without discrimination with respect to police services because of their Indigenous status.
The Standard of Review
9the standard of review applied by the Commission when considering an appeal from the decision of a hearing officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Service v. Diafwila, 2016 ONCA 627. Questions as to whether facts satisfy a legal test are questions of mixed fact and law and are to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Cst. Ioan Floria v. Toronto Police Service, 2020 ONCPC 6; Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 53. Findings of fact and credibility assessments made by a hearing officer are owed particular deference: Toronto Police Service v. Blowes-Aybar, 2004 CanLII 34451 (Ont. Div. Ct.).
10In Imperial Oil Limited v. Haseeb, 2023 ONCA 364, the Court of Appeal for Ontario recently described the reasonableness review in the following terms, at para. 43:
Reasonableness review finds its starting point in judicial restraint and respect for the distinct role of administrative decision-makers. A reviewing court must pay “respectful attention” to the reasons offered for an administrative decision. This means focusing on the decision actually made by the administrative decision-maker and starting the analysis by developing an understanding of the decision-maker’s reasoning process in order to determine whether the decision as a whole is reasonable. A reasonable decision is one that is “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”. In applying the reasonableness standard, the focus is “on the decision actually made by the decision maker, including both the decision maker’s reasoning and the outcome.” In addition, the reviewing court is not to hold the reasons up to a standard of perfection or conduct a “line-by-line treasure hunt for error”. [Citations omitted]
Summary of the Facts
11The parties relied on a detailed agreed statement of facts. The Hearing Officer also heard from eleven witnesses, including members of the TBPS, the Public Complainants, their private investigator, and the Appellant.
12On the morning of October 19, 2015, TBPS received a 911 call reporting a deceased person, later identified as Mr. DeBungee, in the McIntyre River. Mr. DeBungee’s body was found face down in the river shoreline.
13A paramedic and three uniformed constables immediately attended and secured the scene. A short time later, at 9:40 am, the Appellant arrived.
14From this date until he was removed from the investigation in March 2016, the Appellant was the lead investigating and supervising officer assigned to Mr. DeBungee’s sudden death investigation.
15At the scene, the constables encountered three individuals who advised them they had found a health card, belonging to a David Sapay, by the riverbank. None of these potential witnesses were formally interviewed. Months later, in 2016, police received additional information that one of these individuals had allegedly claimed responsibility for Mr. DeBungee being in the river.
16An hour after the Appellant arrived, the coroner attended and indicated that an autopsy would be conducted. Members of the Forensic Identification Unit also attended close to this time.
17Between 10:45 a.m. and 11:02 a.m., the Appellant noted in his notebook that there was “no obvious signs of trauma/foul play”.
18At approximately 11:00 a.m., an individual approached one of the constables at the scene and advised him that, while biking by the river the previous evening, he saw “Native Canadians” drinking and observed two males in a physical altercation. This witness was not formally interviewed, and no steps were taken to identity the individuals involved in the physical altercation.
19At 12:45 p.m. the Appellant approved a press release which stated that “initial investigation does not indicate a suspicious death”. It was an agreed fact he approved this release before conducting an investigation, positively identifying Mr. DeBungee, and before an autopsy had been performed. According to the TBPS policy, sudden or unexplained deaths were to be considered potential homicides.
20The scene was released the same day. At the time it was released the post-mortem had not been conducted, Mr. DeBungee had not been formally identified and next-of-kin notification had not taken place.
21At approximately 2:35 p.m., the Appellant learned that Mr. DeBungee had been reported missing. Shortly after this, the Appellant officially identified the deceased and assigned two officers to notify his next of kin.
22The officers attended the residence of Mr. DeBungee’s common law spouse. A number of people were present in her apartment. Some of these individuals advised that they been drinking with Mr. DeBungee on the riverbank and, when they left, Mr. DeBungee and David Sapay were unconscious. These individuals, who were with the deceased prior to his death, were not officially interviewed. There was no other communication with these potential witnesses after the death notification.
23David Sapay, whose health card was found at the scene and who was reportedly with Mr. DeBungee prior to his death, was not interviewed by TBPS until March 2016. Unbeknownst to the Appellant, Mr. Sapay had been in police custody twice following Mr. DeBungee’s death.
24On October 21, 2015, the Appellant met with members of the deceased’s extended family, including the public complainant, Brad DeBungee. He informed them that the coroner did not believe that there was foul play, but an autopsy was to be performed and a witness interviewed. The Appellant told the family that one possibility was that Mr. DeBungee passed out, rolled down the riverbank and drowned.
25Months later, in his interview with the OIPRD, the coroner noted that it was not wise for police to characterize the death as “non-criminal” without benefit of the autopsy.
26The coroner’s Post-Mortem Examination Report, dated October 21, 2015, concluded that Mr. DeBungee’s immediate cause of death was freshwater drowning. It does not say that the drowning was due to intoxication but that “alcohol intoxication as other significant conditions contributing to death, but not causally related to the immediate cause.”
27In November 2015, the deceased’s family hired a private investigator, David Perry, to investigate Mr. DeBungee’s death. The private investigator interviewed various friends and family members of the deceased. This was the first time any of these individuals had been interviewed in an investigative capacity. The private investigator determined, among other things, that Mr. DeBungee’s debit card had been used after his body had been recovered.
28On November 19, 2015, Mr. Perry attended the TBPS and asked to speak with the Appellant, advising that he had information relevant to the investigation. The Appellant refused to meet with Mr. Perry and, although he had his number, never called him back. As noted above, the Appellant acknowledged his failure to contact Mr. Perry amounted to neglect of duty.
29On March 18, 2016, Mr. DeBungee’s brother, Brad DeBungee and the Chief of the Rainy River First Nations, Jim Leonard (the Public Complainants) submitted a complaint to the OIPRD. The Public Complainants stated that they did not have confidence that the death was thoroughly investigated.
30In addition to filing an individual complaint about the Appellant with the OIPRD, the Public Complainants also filed a complaint alleging systemic anti-Indigenous racism within the TBPS. This resulted in a two-year investigation and a separate 206-page report by the OIPRD. The report, “Broken Trust: Indigenous People and the Thunder Bay Police Service”, was released in December 2018. The Broken Trust Report identified numerous deficiencies in the investigations conducted by the TBPS and concluded that systemic racism existed at an institutional level.
31On March 29, 2016, prior to being removed from the case, the Appellant reviewed the Post-Mortem Examination Report and the Toxicology Report. He submitted a supplementary occurrence report and made notebook entries. The supplementary occurrence report stated, “thus, as originally reported, DeBungee’s death was not a result of any type of foul play or homicide, it was as a result of drowning due to alcohol intoxication.”
32The Appellant’s notebook entry from this date indicated that the cause of death was “fresh water drowning due to/or as a consequence of alcohol intoxication”. As noted, the Post-Mortem Examination Report stated that the cause of death was “freshwater drowning” and that alcohol intoxication was another “significant condition” contributing to the death but “not causally related” to the freshwater drowning.
33On January 12, 2017, the TBPS Chief of Police asked the Ontario Provincial Police to conduct a review of the TBPS’ investigation into the death of Mr. DeBungee. The resulting investigative report highlighted numerous investigation failings including, initial response, scene examination, witness interviews, and next of kin notification.
34In 2017, this Commission’s investigative division commenced an investigation headed by Senator Murray 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. On November 1, 2018, Senator Sinclair released the report titled “Thunder Bay Police Service Investigation, Final Report”.
35A further contextual factor raised at the hearing was that in 2015, at the time of the Appellant’s investigation into the sudden death of Mr. DeBungee, the ‘Inquest into the Deaths of Seven First Nations’ had begun. The deaths at issue in that inquest were of youth who had died in similar circumstances in Thunder Bay; five were found in Thunder Bay area rivers, their cause of death undetermined. The Appellant testified he was aware of the inquest at the time of Mr. DeBungee’s death.
Officer Whipple
36Officer Shawn Whipple, who was a Detective Constable at the time of the investigation, was also charged with neglect of duty and discreditable conduct in relation to the investigation into the death of Stacey DeBungee.
37These misconduct charges were heard concurrently with the Appellant’s charges. Officer Whipple was acquitted of both counts.
38The Hearing Officer concluded that Officer Whipple was the Appellant’s subordinate, had no role in the investigation beyond that of a support person, was not in a decision-making position and “it was clear that his role was to merely assist with tasks that required a secondary officer being present.”
ISSUES Raised on appeal
39The Appellant raises the following issues on appeal:
Did the Hearing Officer err with respect to his findings on the scope of the appellant’s neglect of duty?
Did the Hearing Officer err by concluding the Appellant’s approach to the investigation constituted discreditable conduct under s. 2(1)(a)(i) of the Code of Conduct?
Were the verdicts with respect to the Appellant and Officer Whipple inconsistent?
Did the Hearing Officer err with respect to penalty?
ANALYSIS
1. Did the Hearing Officer err with respect to his findings on the scope of the appellant’s neglect of duty?
40As noted, the Appellant pleaded guilty to the charge of neglect of duty solely as it pertained to his failure to contact Mr. Perry, the private investigator retained by Mr. DeBungee’s family. On appeal to this Commission, the Appellant submits that the Hearing Officer erred in finding that there were other deficiencies in the investigation that also amounted to neglect of duty.
41In oral argument counsel for the Appellant acknowledged it is not open to the Commission to vary or revoke the finding of neglect of duty on count one, in light of the Appellant’s guilty plea. Rather, he submits that the Hearing Officer erred in his findings with respect to the scope of the Appellant’s neglect of duty. This, he submits impacts the reasonableness of the penalty. The Commission disagrees and finds no basis to interfere with the Hearing Officer’s findings.
The Hearing Officer’s Reasons on Neglect of Duty
42The Hearing Officer reviewed each of the particulars alleged in the Notice of Hearing with respect to this charge. He did not accept that they all constituted neglect of duty. For example, the Hearing Officer found that, in the circumstances of this case, the Appellant’s failure to utilize the “Major Case Management” system was not neglect of duty. Nor, the Hearing Officer concluded, could the Appellant be held accountable for which photographs were taken at the scene by the Forensic Identification Unit.
43In addition to accepting the Appellant’s guilty plea for neglect of duty for not contacting the private investigator, the Hearing Officer found other deficiencies in the investigation also amounted to neglect of duty under the PSA. This included the premature conclusion of the cause of death, poor scene management and failure to interview potential witnesses.
Premature Conclusion
44The Statement of Particulars alleged, with respect to the charge of neglect of duty, that the Appellant prematurely concluded that the death of Stacey DeBungee was non-criminal. The Hearing Officer recognized that analysis of this allegation required “consideration of the totality of the evidence”.
45The Hearing Officer rejected the Appellant’s testimony that he kept an “open mind”. He found that, by not treating the death as a potential homicide, the Appellant committed neglect of duty. He noted that, had the Appellant treated the cause of death as undetermined, the investigation would have been much more fulsome. Rather, the Hearing Officer concluded, the investigation was “far less than the bare minimum expected by any investigative standard”.
46The Hearing Officer concluded, as the OPP had in their Report, that at the time that the Appellant made his notebook entry that the sudden death was not suspicious, hours after the body was found, there was no basis for that conclusion. According to the Hearing Officer, when the Appellant noted that the death was non-suspicious he only knew that Mr. DeBungee had prior contact with police for a Liquor Licence Act, R.S.O. 1990, c. L.19, infraction. The Hearing Officer observed:
Simply put, so what. There was no evidence whatsoever at that time that Stacey DeBungee was intoxicated or even that he had been consuming alcohol the previous evening. It goes beyond being irresponsible, it is the definition of neglecting his duties to merely assume that the deceased had been intoxicated. This presumption led to his working theory of Stacey DeBungee passing out from alcohol consumption, rolling into the river, and drowning. He testified that his mind was open to other theories, but none of them were ever documented and no witness presented in evidence, any other specific possibility that had been considered.
47The Hearing Officer concluded that, although the cause of death could have been attributed to accident, misadventure, suicide or due to a criminal act, the Appellant never considered an option other than non-criminal accidental. This he concluded “was not merely sloppy or substandard” and constituted neglect of duty:
As the officer in charge, he was duty bound to ensure that a thorough, open-minded, sudden death investigation resulted. Instead, he wilfully neglected to ensure duties were completed. Based on speculation, void of evidentiary foundation, Staff Sergeant Harrison presumed the sudden death of Stacey DeBungee was accidental and consequently, failed to treat the incident as a potential homicide.
Scene Management
48The Hearing Officer, referring to best practice scene management principles, concluded that the Appellant as the supervising officer, should have been in charge of the scene. The Hearing Officer noted that the TBPS Sudden Death policy, that was in place at the time, instructed officers to “arrange for security of the scene if autopsy is to be conducted or if next of kin have not been notified”. He found the Appellant failed to properly secure the scene. He released the scene the same day, prior to the post-mortem being completed, prior to a formal identification, prior to the next of kin notification and with “critical interviews” outstanding. The Hearing Officer concluded, “I find that the decision to release the scene at the time that it was, supports the neglect of duty allegation given the totality of the evidence.”
49The Hearing Officer also determined that the Appellant failed to ensure there was a comprehensive search of the riverbank to ascertain Mr. DeBungee’s point of entry and failed to take appropriate measurements at the scene.
Failure to Interview Witnesses
50The Hearing Officer found that several witness at the scene, on the morning the body was discovered, were not interviewed. He noted that, while this omission on its own didn’t constitute neglect of duty, it was “consistent with assuming the death was non suspicious”. The Hearing Officer concluded that, as Officer in Charge, the Appellant should have ensured that these individuals, including the person who found the identification on the riverbank, were formally interviewed.
51Additionally, individuals present in the residence when police notified the next of kin were never formally interviewed. Some indicated they had been with Mr. DeBungee and saw him with David Sapay the night before his body was found. The Hearing Officer found: “[f]ormal statement taking from these individuals was required to thoroughly investigate the matter and to ascertain the whereabouts of Mr. Sapay to facilitate a timely interview with him.” He described the Appellant’s attempts to locate Mr. Sapay as “feeble”.
52Another civilian who approached an officer with information about seeing individuals drinking and fighting on the riverbank was also never formally interviewed. The Hearing Officer found that the Appellant was unaware of this witness because he failed to review the investigative file. The Hearing Officer concluded that the Appellant’s failure to review reports in the investigative file was serious, noting:
This was a sudden death investigation, not an insignificant file such as a mischief or theft; it involved the death of a person, necessitating a corresponding, principled, and focused response by police. At the very least, that would include reviewing all reports submitted related to this incident.
53The Hearing Officer found it was the Appellant’s responsibility to interview witnesses. He found it was incumbent on the Appellant to ensure formal statements from relevant witnesses were received as soon as possible. While perhaps none of the omissions to interview on their own constituted misconduct the Hearing Officer found, in totality, they were serious omissions and a troubling departure from “basic police work”:
Staff Sergeant Harrison had a duty as the officer in charge to ensure that those individuals identified at the scene and those identified at the next of kin notification meeting, all of whom had the potential to provide significant information to advance the investigation, were formally interviewed. In my opinion, failing to ensure these potential witnesses were formally interviewed is more serious than ignoring the request to meet with a private investigator; these individuals had direct and personal knowledge to provide investigators and the investigators had easy access to them yet, Staff Sergeant Harrison wilfully decided against it.
No Error in the Hearing Officer’s Conclusions on Scope of the Appellant’s Neglect of Duty
54The Commission finds no error in the Hearing Officer’s analysis and findings of neglect of duty and no basis to intervene. The Hearing Officer’s findings of fact and determination of credibility are owed considerable deference. His approach to the evidence was not flawed and his conclusions were well within the range of reasonable outcomes.
55The Appellant raises two broad arguments to impugn the reasonableness of the Hearing Officer’s conclusions about the scope of the Appellant’s neglect of duty. First, he submits the Hearing Officer wrongly relied on hindsight and applied a standard of perfection. Second, he submits the Hearing Officer erred by finding the Appellant formed a premature conclusion and failed to properly manage the scene or witness interviews. The Commission rejects these arguments and finds the Hearing Officer’s findings were reasonable.
The Hearing Officer Did Not Err in Assessing the Evidence
56Counsel for the Appellant properly notes societal change with respect to Indigenous persons and reconciliation has occurred in Canada since the time of this investigation. In the context of the relationship between Indigenous communities and the TBPS alone, profound steps have been taken through the investigations, inquest and reports summarized above. This presented a framework that had evolved between the Appellant’s 2015/2016 investigation and the hearing in 2022. In the Appellant’s submission, retrospective application of what is now known as a result of this profound change “warped” the Hearing Officer’s analysis of the Appellant’s investigation.
57This argument is not borne out in the Hearing Officer’s reasons. The Hearing Officer correctly set out the test for neglect of duty and properly cautioned himself:
I must be satisfied on clear and convincing evidence, that the officer(s) were required to perform a duty, that without lawful excuse the duty was either wilfully not performed, or was not performed diligently or promptly. The negligence must be more than a mere performance issue to amount to misconduct. When considering the evidence, I must refrain from applying the benefit of hindsight, I must consider the circumstances under which the officer(s) exercised their discretion or judgment.
58The Hearing Officer properly noted that the Broken Trust and Sinclair Reports were released in 2018 while the misconduct occurred in 2015 and 2016. There is simply no indication that the Hearing Offilcer mistakenly applied today’s understanding of Indigenous issues. At the outset of his analysis, the Hearing Officer wrote:
I will be cautious to not apply unrealistic expectations, and careful to not rely on hindsight; the actions of the officers must be considered based on what was known, and common practices at the time.
59Later in his reasons, the Hearing Officer specifically noted, “police officers make mistakes, a level of perfection is unattainable and is not the standard.” The Hearing Officer was clearly alive to systemic issues in the TBPS at the time of the investigations but clarified that his conclusions with respect to the Appellant’s responsibilities were “from the perspective of basic, duty-bound responsibilities, expectations of any criminal investigator in the province of Ontario.”
60The Hearing Officer found that the Appellant, an experienced officer with extensive training, failed to take even the minimum reasonable investigative steps expected of an officer at that time. There is no indication the Hearing Officer applied the societal lens of 2022 when he made his decision or held the Appellant to a standard of perfection.
Premature Conclusion and Investigation Deficiencies
61The Commission finds there was no error in the Hearing Officer’s key finding that much of the Appellant’s neglect was rooted in a premature conclusion that Mr. DeBungee’s sudden death was not suspicious. The Appellant submits that the Hearing Officer held the Appellant to the impossible standard of having to “prove a negative”; that Mr. DeBungee’s death was not suspicious or the result of criminal activity when, ultimately, no evidence was uncovered that suggested that it was.
62As argued before the Hearing Officer, the Appellant asserts that the only conclusion that the Appellant could have reached in the circumstances was that the death was non-suspicious. He argues that, in finding otherwise, the Hearing Officer departed from the policing norm that officers must “follow the evidence”. He submits, as he did before the Hearing Officer, there was simply no evidence of foul play for the Appellant to follow.
63The Commission does not agree. In his comprehensive reasons the Hearing Officer found the neglect in the investigation was rooted in the Appellant’s conclusion, hours into the investigation, that Mr. DeBungee’s death was non-suspicious. This conclusion was made prematurely and impacted the investigation.
64In response to the Appellant’s assertion that police can only “follow the evidence”, the TBPS and the public complainants both properly note that an officer can not follow evidence if they do not look for it. Ultimately, the Hearing Officer concluded that the Appellant failed to investigate and determine if there was any evidence to be followed. In his reasons, the Hearing Officer noted, “I accept that the evidence collected did not suggest foul play, but the investigation was so inadequate, it did not allow for the collection of evidence which might give rise to suspicion as to the manner of death.”
65The Hearing Officer’s reasons reflect the fact that the absence of evidence of foul play does not necessarily lead to a conclusion that Mr. DeBungee’s death was “non-suspicious” or “non-criminal”. As the OIPRD noted in their submissions, the absence of evidence of foul play, especially when no investigation has occurred, will lead a reasonable investigator to conclude that the cause of death was “undetermined” and require further investigative action.
66As noted by the TBPS, the private investigator hired by Mr. DeBungee’s family actually did take investigative steps. Through this, the investigator discovered evidence, such as the fact Mr. DeBungee’s bank card was used after his death, that the Appellant also could have found had he taken the minimal investigative steps.
67In oral and written submissions, the Appellant suggested that subsequent information in fact confirmed his conclusion that the cause of Mr. DeBungee’s death was non-criminal. He points specifically to the autopsy results. The issue however, was the quality of the Appellant’s investigation. The Hearing Officer found it to be inadequate. A thorough investigation may have led to the same conclusion, but the Appellant arrived at his conclusion after virtually no investigation into Mr. DeBungee’s sudden death. Nothing in the autopsy results precluded the possibility that Mr. DeBungee was pushed into the water. The Hearing Officer’s findings were reasonable.
68The Appellant also asserts that the Hearing Officer erred in finding he failed to preserve the scene or properly conduct witness interviews. Before the Hearing Officer and this Commission, the Appellant argued that the Appellant took sufficient steps in light of the available evidence and maintained an open mind.
69It is not open to the Commission to reweigh the evidence. The Hearing Officer concluded that, within hours of Mr. DeBungee’s body being found, the Appellant prematurely concluded the death was not suspicious and that this impacted the investigation. The Hearing Officer found the neglect of duty charge with respect to the particulars of preserving the scene and interviewing witnesses were proven on clear and convincing evidence. These findings were reasonable on the evidence before the Hearing Officer.
70The Appellant’s failure to secure the scene was contrary to the TBPS policy and best practice principles. It was reasonable for the Hearing Officer to conclude that the officer’s failure in this regard supported the allegation of neglect of duty. We also cannot accept the Appellant’s continued assertion that there was no reason to take riverbank measurements when there was no evidence of foul play. In his reasons, the Hearing Officer explained why this investigative step could have evidentiary value. He noted: “It was irresponsible to assume that Stacey DeBungee’s point of entry into the river was at the same location as he was found when there was no evidence to warrant such a conclusion.” The Commission has no basis to interfere with the Hearing Officer’s conclusions.
71Similarly, the Hearing Officer clearly rejected the Appellant’s assertion, repeated on appeal, that further witness interviews were not necessary. Individuals at the home of the next of kin had indicated they were with the deceased the prior evening. The Hearing Officer noted:
This is clearly information that should have caused Staff Sergeant Harrison to recognize the need to obtain formal statements. These are the people who were with Stacey DeBungee just before he died. They should have been questioned and asked to provide information such as but not limited to, the supposed altercation that had occurred that evening and the relationship between Stacey DeBungee and David Sapay. Instead, Staff Sergeant Harrison did not even make a notebook entry about the meeting or who was last seen with Stacey DeBungee.
72The Hearing Officer noted the Appellant’s failure to have the three individuals encountered at the scene formally interviewed. He concluded that potential witnesses at the scene of an unexplained death must be formally interviewed, observing “[t]his is basic police work and falls under the responsibility of the officer in charge”.
73This Commission has previously noted that hearing officers bring particular expertise and specialized knowledge to their role as adjudicators: see Schmidt v Ontario Provincial Police, 2011 ONCPC 11 at paras. 42 and 44. In his reasons, the Hearing Officer specifically noted his extensive policing experience as a criminal investigator1. He was well placed to determine if the facts of this case satisfy the legal test for neglect of duty under the PSA and his reasons are entitled to deference.
74In sum, we find the Hearing Officer’s findings with respect to the charge of neglect of duty to be reasonable and untainted by legal error. The Hearing Officer provided exhaustive reasons, carefully considered all particulars and provided a coherent and rational chain of analysis. There is no basis to interfere with respect to the Hearing Officer’s findings on count one.
2. Did the Hearing Officer err by concluding the Appellant’s approach to the investigation constituted discreditable conduct under s. 2(1)(a)(i) of the Code of Conduct?
75Under s. 2(1)(a)(i) of the Code of Conduct a police officer engages in discreditable conduct if he or she fails to treat or protect persons equally without discrimination with respect to police services because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. The Appellant’s Notice of Hearing read:
It is alleged that in the course of his involvement with the Stacey DeBungee sudden death investigation, Staff Sergeant Harrison failed to treat or protect persons, specifically the deceased and his family, equally, without discrimination with respect to police services because of his Indigenous status. As a police officer, Staff Sergeant Harrison has an obligation to treat and protect everyone equally. Staff Sergeant Harrison failed to do so when he made assumptions as to the cause of death, did not investigate the sudden death properly, and in his treatment of the complainants throughout his dealings with them.
76On appeal, the Appellant submits that the Hearing Officer erred in finding the Appellant guilty without there being a morally blameworthy act and failed to consider the impact of hindsight and systemic bias. We find no such errors and would also not intervene on this count, as we find the Hearing Officer’s findings reasonable.
Hearing Officer’s Reasons on Discreditable Conduct
77The Hearing Officer noted at the outset of his analysis that interpretation of s. 2(1)(a)(i) of the Code of Conduct was a “novel area of law”. He found nevertheless the issue was not particularly complicated; “[s]imply put, did Staff Sergeant Harrison fail to treat or protect persons, specifically Stacey DeBungee and his family, equally and without discrimination with respect to police services because of their Indigenous status?”
78The Hearing Officer found that there was no direct evidence the Appellant held overt bias about Indigenous people that impacted the investigation. Without direct evidence of bias, the Hearing Officer was tasked with analyzing whether there was indirect evidence that could support an inference of bias to the standard of clear and convincing evidence.
79The Hearing Officer found that it would be, on its own, unacceptable to make a finding in relation to conduct stemming from unconscious bias:
Without the existence of overt bias, to make a guilty finding, I must rely on the inference that Staff Sergeant Harrison’s investigation was negligent because of an unconscious bias towards Indigenous people. However, even though that is my conclusion, I have indicated it would be unacceptable to, on its own, make a guilty finding in relation to conduct stemming from unconscious bias.
80The Hearing Officer went on to note:
Nevertheless, it does make sense to me that it is permissible to make a guilty finding in a situation where the conduct resulting from unconscious bias is so egregious, that the involved officer ought to have been aware that his actions were being negatively influenced by that unconscious bias, and/or, the results of that behaviour was so significant that the officer should have been alerted to its existence.
81The Hearing Officer concluded that the Appellant prematurely determined that Mr. DeBungee’s death was non-suspicious because Mr. DeBungee was Indigenous and based on longstanding, racist stereotypes about Indigenous persons. The Hearing Officer went on to find that this was the “only explanation” for the “shoddy”, “substandard” investigation and concluded: I find the behaviour of Staff Sergeant Harrison amounts to discreditable conduct because, with respect to police services he was duty bound to provide, he failed to treat the investigation equally, without discrimination due to Stacey DeBungee’s Indigenous status.
The Hearing Officer Found Indirect Evidence of Bias
82The Appellant argues the finding of guilt on this count is fundamentally flawed as the Hearing Officer’s reference to “unconscious bias” means the Appellant was punished for something that is not morally blameworthy.
83The Appellant relies on recent decisions of the courts that deal with giving anti-bias instructions to jurors: R. v. Chouhan, 2021 SCC 26; R. v. Bhogal, 2021 ONSC 4925. In that specific context, the concept of unconscious bias is described as “beliefs and perceptions that operate beneath our level of awareness” which are a universal aspect of human nature (Bhogal, supra at para 9). The Appellant asserts that importation of the concept of unconscious bias, thus conceived, to prove discreditable conduct must be a fundamental error as it by definition, blames and punishes the Appellant for something of which he was unaware.
84We do not agree that the Hearing Officer based the finding of misconduct on “unconscious bias”. The Hearing Officer, noting a morally blameworthy act was required, clearly pointed to indirect evidence of bias.
85The Hearing Officer properly noted that a finding of discrimination is often proven by circumstantial evidence and inference. He highlighted the following passage from the Court of Appeal for Ontario decision Shaw v. Phipps, 2012 ONCA 155:
The Adjudicator’s reasons are also challenged on the basis that they arrive at a conclusion of discrimination based on “unconscious discrimination.” The appellants argue that that this concept improperly imposes a burden of disproof on Constable Shaw. However, this was not a case where the Adjudicator concluded, without supporting evidence, that because discrimination can be unconscious, Constable Shaw unconsciously discriminated against Mr. Phipps. Indeed, the Adjudicator did not assume discrimination, but drew an inference of discrimination from a number of different pieces of evidence. …
The Divisional Court majority concluded that the Adjudicator was entitled to, and indeed, obliged to “draw reasonable inferences from proven facts” about Constable Shaw’s actions and whether Mr. Phipps’ colour was a factor in those actions.
86These passages of the Hearing Officer’s decision demonstrate his fundamental holding on count two was that, even though he found no direct evidence the Appellant was biased, the presence of bias could be reasonably inferred from the proven facts.
87Immediately after citing language about basing a finding of discrimination on inferences, the Hearing Officer repeated his fundamental holding that the Appellant prematurely determined Mr. DeBungee’s death was nonsuspicious because he was Indigenous:
There is no doubt whatsoever in my mind that Staff Sergeant Harrison decided very early on that the death was nonsuspicious. I am equally convinced that because the deceased person was Indigenous, found in a river where other Indigenous men had been found drowned, with a high level of alcohol in their system, he assumed the very same circumstances must have therefore existed in this case.
88The Hearing Officer agreed that no overt acts of racism were identified in the facts before him but points to identifiable behaviour from which he inferred bias. He held that there was no evidence for the Appellant to conclude, as quickly as he did, that alcohol contributed to Mr. DeBungee’s death, other than his reliance on his Indigenous status.
89This dangerous stereotype of intoxicated Indigenous persons was recognized by the Supreme Court of Canada as early as 1998. In R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128, at para. 58 when addressing the issue of jury impartiality, the Court noted:
… Racism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity. As the Canadian Bar Association stated in Locking up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988), at p. 5:
Put at its baldest, there is an equation of being drunk, Indian and in prison. Like many stereotypes, this one has a dark underside. It reflects a view of native people as uncivilized and without a coherent social or moral order. The stereotype prevents us from seeing native people as equals.
90The Hearing Officer found that the Appellant relied on this stereotype as he carried out his investigation, writing: “I suggest that it is more than just likely, that he took Mr. DeBungee’s Indigenous status into account when coming to such a conclusion.” The Hearing Officer further wrote:
Staff Sergeant Harrison testified that upon reading the post-mortem report later, even then he did not consider taking investigative steps to determine how Stacey DeBungee got in the water. This is beyond worrisome; it is incomprehensible that an experienced investigator was satisfied with the mere assumption that a sudden death was accidental when there was absolutely no evidence to indicate how Stacey DeBungee actually came to be in the river.
91The Hearing Officer also concluded that bias could be inferred from the magnitude of the investigation deficiencies.: “[f]rankly, there is no other reasonable explanation for such a shoddy investigation, one that was less than substandard from the very beginning.” These conclusions support the Hearing Officer’s finding that the Appellant failed to treat the investigation equally, without discrimination, due to Stacey DeBungee’s Indigenous status.
92It is clear that the Hearing Officer inferred the Appellant based his deficient investigation on a racial stereotype. It was open to the Hearing Officer to draw this inference based on the constellation of facts before him and the Commission finds this to be a reasonable finding. There is no basis for the Commission to interfere with the Hearing Officer’s conclusion that the Appellant’s neglect of duty was rooted in his reliance on a stereotypical and biased assumption about how Mr. DeBungee died.
No Error in Concluding the Appellant Ought to Have Been Aware of Impact of Bias
93The Hearing Officer references what he describes as the Appellant’s failure to recognize his own “unconscious bias”. More specifically the Hearing Officer noted that a guilty finding could be made “in a situation where the conduct resulting from unconscious bias is so egregious, that the involved officer ought to have been aware that his actions were being negatively influenced by that unconscious bias, and/or, the results of that behaviour was so significant that the officer should have been alerted to its existence.”
94Viewed in isolation or perhaps in a different context, the Hearing Officer indicating the Appellant should have been aware of the influence of unconscious bias could be problematic. However, it is improper to isolate the use of the term “unconscious bias”. When the reasons are read as a whole and in the context of the entirety of the evidence, the Hearing Officer did not err in concluding the Appellant should have been aware of the potential for bias, implicit or otherwise, impacting this specific investigation.
95As already noted, the Hearing Officer concluded there were substantial deficiencies in the Appellant’s investigation. In these circumstances, it was open to the Hearing Officer to find the Appellant should have questioned the potential impact of bias:
In this case, the evidence shows that Staff Sergeant Harrison’s negligent investigation was so egregious that it should have been apparent to him that his investigation was deficient to such an extent that he was committing misconduct; he should have asked himself why his investigation was so deficient, and then remedied the situation.
96The Hearing Officer did not highlight a transient indiscretion. Rather he summarized how the Appellant, a very experienced investigator, conducted a blatantly deficient investigation over a six-month period. As noted above, the scene was not properly assessed or secured, critical witnesses never interviewed, standard reports not read, and a premature conclusion reached. The Hearing Officer described the investigation as “beyond irresponsible”, “not merely sloppy or substandard” and that the Appellant “wilfully neglected to ensure duties were completed”. He found that the only possible explanation for this deficient investigation was the Appellant’s biased assumption about how Mr. DeBungee died due to his Indigeneity. The deficient investigation based on this stereotypical assumption was a failure to treat or protect Mr. DeBungee equally without discrimination with respect to police services because of his race. These were reasonable conclusions based on the evidence before the Hearing Officer.
97This conclusion is far removed from applying the concept of “unconscious bias” as described in the jury instruction cases relied upon by the Appellant. Despite the Hearing Officer’s use of the term “unconscious”, the bias at issue here, was not as the Appellant suggests “opaque” or “deeply embedded” as referenced in the cases pertaining to jury instructions.
98It is critical, when assessing the Hearing Officer’s conclusions about bias, to recognize the context of the investigation and the nature of the alleged bias. As stated by the Hearing Officer, "It is important to note that at that very moment, the Inquest into the Deaths of Seven First Nations was underway.” This inquest, held in Thunder Bay, was into the deaths of Indigenous youth, five of whom, like Mr. DeBungee, were found in an area river - their cause of death undetermined. The Appellant had testified that he had been fully aware of this inquiry and the increased media and public scrutiny on the TBPS at the time of the investigation. In his reasons, the Hearing Officer properly asked, “Could there be greater motivation to ensure this investigation was thoroughly investigated…?”.
99The Appellant also testified that he was aware there was systemic racism within the TBPS at the time. Concerns with respect to bias impacting a police investigation were clearly a live issue at the very time of the Appellant’s investigation into Mr. DeBungee’s sudden death.
100Further, as noted by respondent TBPS, concerns about bias impacting the investigation were specifically articulated by Stacey DeBungee’s family shortly after his death. The Appellant testified that Mr. DeBungee’s brother Brad DeBungee told the Appellant, four days after Mr. DeBungee’s death, that he believed TBPS were not investigating his brother’s death because he was Indigenous. This in conjunction with the ongoing inquest and increased scrutiny on TBPS suggests that there was ample reason for the Appellant to be mindful of the impact of bias on the investigation.
101While the Hearing Officer could have used language other than “unconscious bias”, it does not undermine the reasonableness of his decision. Given the circumstances of the case, there was no error in the Hearing Officer determining the Appellant should have been alive to the impact of bias, conscious or otherwise, on his investigation.
No Reliance on Hindsight or Dismissal of Evidence of Systemic Discrimination
102Similar to his argument with respect to the finding of neglect of duty count, the Appellant again suggests that the Hearing Officer, in finding discreditable conduct, inappropriately relied on hindsight and applied ‘ground breaking’ concepts to the Appellant’s 2015 conduct. As noted above, the Hearing Officer repeatedly cautioned himself with respect to inappropriately applying hindsight and assessed what was known to the officer at the time. It was not a ground breaking concept in 2015 that police officers could be influenced by racist stereotypes about Indigenous persons. As set out above, this was drawn to the Appellant’s attention by Mr. DeBungee’s family members and systemic racism in the TBPS was known to the Appellant at the time of the investigation. It was not “ground breaking” that these stereotypes could play a role in an investigation or for an officer to notice their own racial stereotyping in 2015.
103Lastly, the Commission does not agree with the Appellant’s submission that he could not recognize or address any potential bias because he was working in a flawed police system that reinforced his biases. There was ample evidence before the Hearing Officer with respect to the existence of systemic bias at the TBPS at the time of the investigation. In his reasons, the Hearing Officer clearly summarized the multiple reports that spoke to this systemic bias. The Hearing Officer also articulated his acceptance of the Appellant’s submissions “about the differences between a systemic review and a disciplinary process including a different standard of proof.”
104The Hearing Officer made proper use of the reports before him. He did not jump to the conclusion that because there was systemic bias the Appellant was guilty of misconduct. Nor would it have been proper for the Hearing Officer to, as the Appellant now suggests, exonerate him of misconduct because of systemic bias issues in the TBPS at the time. In our view, the Hearing Officer was cautious to not confuse the systemic issues highlighted in the various reports with the application of the proper standard of proof and analysis of the misconduct issues specific to the appellant’s charge of discreditable conduct.
105In sum, the Hearing Officer found a morally blameworthy act was required and pointed to indirect evidence of bias. The Hearing Officer found that in the exceptional circumstances of this investigation, the Appellant should have questioned the impact of bias (the conduct of what the Hearing Officer found to be a “less than substandard” investigation), failed to do so, and proceeded to discriminate against Mr. DeBungee and his family members based on race. Ultimately, the Hearing Officer concluded that the Appellant committed discreditable conduct by failing to treat or protect persons, specifically Stacey DeBungee and his family, equally and without discrimination because of their Indigenous status.
106It was open to the Hearing Officer to find this. We are not satisfied that there was an error in law and find the Hearing Officer’s conclusions with respect to this count to be reasonable.
3.Were the verdicts with respect to the Appellant and Officer Whipple inconsistent?
107The Appellant submits that the Hearing Officer rendered inconsistent verdicts in finding the Appellant guilty of misconduct while finding Officer Whipple not guilty. Counsel for the Appellant submits that Officer Whipple’s acquittal is “violently at odds” with the findings of guilt with respect to the Appellant. He points to the Hearing Officer’s finding, in acquitting Whipple, that the Appellant’s mistakes were not “of such a degree that it necessitated intervention by Sergeant Whipple, Staff Sergeant Harrison’s subordinate.” The Appellant asks how his conduct throughout the investigation could be so egregious to constitute misconduct but not of such a degree that it triggered a duty on Officer Whipple to intervene.
108The answer is clearly set out in the Hearing Officer’s reasons. The Hearing Officer noted that the Appellant’s role in investigating was “completely different than that of Sergeant Whipple” and that “there is a hierarchy of responsibility at the scene of a sudden death that obviates Sergeant Whipple from duty-bound obligations in this instance considering his role and responsibilities.”
109As noted by the Hearing Officer, when first at the scene Officer Whipple actually remained in the car, initially not even participating in the investigation. Whipple attended the residence of the next of kin but largely remained in the hallway while another officer spoke to the residents. Whipple was not copied on all emails, or privy to all communications about the file, was not responsible for locating witnesses and did not “have an active role”. The Hearing Officer repeatedly notes that Officer Whipple played a secondary, supportive role. As the supervising investigator in the sudden death investigation, it was the Appellant who bore the responsibility of ensuring that the incident was properly and thoroughly investigated.
110Given the significantly different roles played by these two officers, there are logical and rational reasons for the different determinations of guilt. There is no merit to this ground of appeal.
4. Did the Hearing Officer err with respect to penalty?
111In his notice of appeal and factum the Appellant submitted that the Hearing Officer imposed a penalty that was excessive in the circumstances and improperly based on a finding of unconscious bias. In oral argument at the appeal, the Appellant’s counsel submitted that the penalty appeal was grounded only in the Hearing Officer erring with respect to the scope of his findings of the Appellant’s neglect of duty. Counsel acknowledged that if the Commission found no error in the findings of neglect of duty and discreditable conduct, there was no basis to interfere with the penalty.
112The Commission has determined there were no errors in the Hearing Officer’s findings with respect of either count. Given the Appellant’s oral submissions on penalty, further analysis is unnecessary and the appeal from penalty is dismissed. As previously stated, the Public Complainants’ appeal from penalty is dealt with in a separate decision.
ORDER
113Pursuant to s. 87(8)(a) of the PSA, the Commission confirms the findings of guilt and the penalty imposed by the Hearing Officer.
Released: January 15, 2024
Laura Hodgson
Emily Morton
Kate Grieves