A. Cameron Ward Barristers and Solicitors » Opinion
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An unidentified man apparently remains in hospital as a result of injuries sustained while members of the Vancouver Police Department “attempted to subdue” him a month ago.  The circumstances of this matter, which ought to concern members of the public, remain mysterious and neither the VPD nor the Independent Investigations Office (the new provincial agency created to investigate incidents of serious harm arising from police involvement) is saying anything.  A cryptic IIO news release from January 15, 2013 raises more questions than it answers:

“At approximately 11:30 AM on Dec. 30, 2012, the VPD attended a residence in response to a complaint.  Once there, officers located a 26 year old male who was reportedly distressed and exhibiting aggressive behaviour.  Police attempted to subdue the man in order to transport him to hospital.  During the altercation with officers, the man sustained injuries and was admitted to hospital where he remains.

The IIO was notified at 12:30 PM on Dec. 31, 2012.  At that time, the extent of the man’s injuries was not clear. Over the following days, IIO investigative staff met with the affected person’s family and medical team to determine if his injuries met the statutory definition of “serious harm”.

On Jan. 10, 2013, upon further review of the information, the Chief Civilian Director asserted jurisdiction.  Eleven IIO staff have been assigned including the Senior Investigator, Affected Persons who will provide support to the man and his family…..No further information is available at this time.”

…..

Who is this man?  Has he been charged with any offence?  Was he breaking any law when he was “subdued”?  Is he still in hospital today, a full month later?  What are his injuries?  Why did the VPD wait thirteen hours to report the matter to the IIO, when the law requires “immediate” notification?

The police are accountable to the public, at least in theory.  The public deserves a full accounting in this serious matter and we deserve it now.  The IIO was never intended to be something the police could use to cloak their actions in secrecy.  If that is what is going to happen, we need to revisit its very existence.

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Now that a month has passed since the Missing Women Commission of Inquiry report was released to the public, it may be time to reflect on whether there is any point in holding more provincial public inquiries in the future.  From my perspective as counsel for the families of scores of women who were murdered in Port Coquitlam by Robert William Pickton and persons unknown, the MWCI was an abject and profoundly disappointing failure.  I can only hope that, for my clients’ sake, the government quickly implements the recommendations that the families receive financial compensation for the loss of their loved ones so that the healing process can continue.

That said, I still believe that a public inquiry can be an important way to address public concerns arising from any particular scandalous event.  The process has two main purposes; first, to conduct a thorough and independent investigation into what actually happened and, second, to make recommendations to ensure something similar doesn’t happen again.  Although the MWCI completely failed on the first front, that doesn’t mean that future inquiries need to founder on the same shoals.  The government must ensure that the tribunal it appoints is completely independent, fully committed to the process and has the necessary time and resources to fulfill its duty to the public.  In the end, like any human endeavour, the success of a public inquiry will depend on the integrity, diligence, commitment and good faith of the participants.

Critics refer to the cost of the undertaking and suggest that the money could be better spent elsewhere.  They have a point, but one can’t put a price tag on truth and justice.  One can, however, impose reasonable spending limits and ensure that taxpayers receive value for their money.

Public inquiries can still work in B.C.  I was one of the lawyers involved in the inquiry into the death of Frank Paul, who died of hypothermia in a Vancouver alley after being dumped there by the police.  Commissioner William Davies, Q.C. presided over the inquiry into the scandal firmly and fairly, with a judicial demeanour acquired over years on the bench of the B.C. Supreme Court.  His Commission Counsel, including Geoff Cowper, Q.C. and Brock Martland, marshalled and presented the relevant evidence and pursued the true facts fearlessly and without favouritism.  They didn’t attempt to delegate their important fact-finding responsibility to other so-called “expert” investigators.  The Frank Paul Inquiry made some important recommendations, one of which, the creation of the Independent Investigations Office, should improve the public perception of police in the province.  The FPI wasn’t perfect – no human endeavour is – but it demonstrates that the public inquiry can serve as a vehicle for exposing the truth and shouldn’t be abandoned just yet.

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The trial of Karl Lilgert on two counts of criminal negligence causing death arising from the March 22, 2006 sinking of The Queen of the North reportedly began today.  It should not have taken almost seven years to put the accused on trial.  This delay, which includes some four years of investigation before the charges were even laid, is unacceptable and gives our criminal justice system a black eye.  All the participants in the system -police, prosecutors, defence lawyers, public – have to come up with ways to speed up the glacial pace of justice in cases like this.

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Families and supporters of the missing women at Monday’s press conference (Photo by Carmine Marinelli/24 Hours)

Monday’s press conference for the release of the Commissioner’s final report confirmed the Missing Women Commission of Inquiry was a missed opportunity to ameliorate relationships between the victims’ families, community groups, police departments and the Provincial Government. The Commissioner was hardly through his introductory remarks when heckling from the public gallery began. Outside the press conference, dozens protested and distributed leaflets calling for a national inquiry into the ongoing crisis of murdered and missing women, suggesting little has changed since the Inquiry was first called.

The final report is lengthy—bound in 6 volumes including a 150-page executive summary—but its size belies its fatal flaw: the foundation of the report is incomplete. Early funding decisions by the Provincial Government effectively excluded most community groups from the evidentiary hearings. During those hearings, the Commission refused to hear from important witnesses and refused to compel relevant records that were essential to its fact-finding mandate. Independent counsel for aboriginal interests, Robyn Gervais, resigned from her position in protest. Decisions made by the Commission respecting the design and conduct of this public inquiry critically wounded its perceived integrity. The Commission failed to complete its important work.

The final report includes a thorough review of the evidentiary record, albeit incomplete, and a satisfactory recitation of “what happened” in the course of the impugned missing women investigations. Police failure after police failure is described in detail: poor report taking and follow up on reports of missing women; faulty risk analysis and risk assessments; inadequate proactive strategies to prevent further harm; failures to consider all investigative strategies; failures to follow Major Case Management practices; failures to address cross-jurisdictional issues and ineffective coordination between police forces and agencies; and failures of internal and external accountability mechanisms. The respective police departments ought to be humbled by these findings.

One area where the report falls short, however, is in explaining “why” these failures occurred. Of the report’s 1448 pages, only 65 are dedicated to the “Underlying Causes of the Critical Police Failures” – the title of Part 4, Volume II. More importantly, the Commissioner fails to find direct or overt discrimination played a role in the failed missing women investigations, and refuses to attribute blame for the failed investigations to any specific individuals, or even the police departments themselves. For the families, this was a missed opportunity for truth and reconciliation.

The answers to the “why” question are critical because they are necessary to lay the foundation for recommendations for change. Without a proper understanding of why the missing women investigations failed, police and governments will not be able to prevent another similar tragedy from occurring. In the Commissioner’s own words:

“There is great public utility in addressing allegations that bias, sexism and racism had some role in the police failures: a more profound and complete understanding of the past creates the foundation for learning, which leads to positive change in the future.”

Indeed, the Commissioner has acknowledged to some degree that bias, sexism and racism were to blame for the “colossal failure” of the missing women investigations. The public gallery on Monday gave a singular cheer at the Commissioner’s pronouncement that “systemic bias” contributed to this failure. For our clients, this finding is merely confirmation of something they have long known: police prejudices involving aboriginal women, sex trade workers and drug users affected decisions at every stage of the missing women investigations. There is no doubt these investigations would have been conducted differently had the women been reported missing from another, more privileged neighbourhood.

The Commissioner is, however, quick to qualify his finding of “systemic bias” in the final report:

“The systemic bias operating in the missing women investigations was a manifestation of the broader patterns of systemic discrimination within Canadian society and was reinforced by the political and public indifference to the plight of marginalized female victims.”

In effect, the Commissioner deflects blame away from the police and onto society at large. The bias was not “institutional”, it was “systemic”, as the police departments mirrored the prejudices of society at large, says the report. The Commissioner adopts a phrase from Sir Robert Peel: “the police are the public and the public are the police”, and goes on to say “[t]he police failures in this case mirror the general public and political indifference to the missing women. […] At some level, we all share the responsibility for the unchecked tragedy of the failed missing women investigations.”

The families find this hard to swallow. Surely their desperate pleas to police for help finding their missing daughters, sisters and mothers were not indifferent? Surely the women and men marching in the streets demanding action were not indifferent? And shouldn’t the police be held to a higher standard than the general public? How can the indifference shown by police be justified as being a reflection of public opinion?

In our view, the numerous police failures found by the Commissioner in his final report are better characterized as manifestations of institutional and individual police biases. Police policies, practices, and culture were to blame for these failures, not society at large. Individual officers made critical decisions not to follow up on tips, not to allocate resources, and not to warn the public. The Commissioner’s hesitation to attribute fault was a missed opportunity, and weakens the foundation for the recommendations that follow.

The families applaud the Commissioner’s recommendations for increased funding to centres providing emergency services to women, restorative measures, equality-promoting measures, measures to enhance the safety of vulnerable urban women, and measures to prevent violence against aboriginal and rural women, among the many other recommendations outlined in Volume III the report. It remains to be seen, however, whether the foundation of this report has the structural integrity to support any significant improvements to the lives of disadvantaged women.

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As counsel for the families of the missing and murdered women, we have been highly critical of the Missing Women Commission of Inquiry for perpetuating many of the same prejudices that lead to the tragedy. The voices of Aboriginal women, sex workers and drug users were largely excluded from the development and conduct of this process. It was a process that preferred the views of police and government institutions over those of community groups who stood to gain the most from its outcome, and that seemed to ignore the very problems it was ostensibly called to inquire into and solve.

The Commission heard from 79 witnesses over 92 days, but failed to answer many of the primary questions to which the families and friends of the missing women have long sought answers. Did Robert Pickton act alone? Did Pickton’s family members, associates, employees, and the police know he was involved in abusing sex trade workers from the Downtown Eastside long before he was apprehended? Was the notorious Hells Angels gang involved in Pickton’s crimes to any degree, and did its involvement have anything to do with the inadequate police response? Why was more not done in response to the dozens of reports of missing women over the years?

The terms of reference have been widely criticized as being too narrow in scope, and for having been drafted without any consultation with the groups potentially most affected by this process. In our view, while the lack of prior consultation was indeed a mistake, the vaguely-worded terms of reference could have been interpreted more broadly and do not, alone, explain this inquiry’s shortcomings. Rather, the Commission actively chose to interpret the terms of reference so as to exclude from its lens institutional prejudices respecting women, Aboriginals, drug users, and sex trade workers that may have contributed to the failed investigations.

In our view, these issues could well have been explored within the ambit of the terms of reference as they were framed. To “inquire into and make findings of fact respecting the conduct of the missing women investigations” does not expressly exclude an examination of the social factors that were at play, especially within the police departments conducting those investigations. Moreover, the importance of these social factors demanded they be examined in the context of the failed missing women investigations.

Notwithstanding our criticisms of this process, the imminent release of the Commissioner’s final report is a welcome opportunity to reignite discussion about these important issues. We have reviewed and endorse the recently-released report by the B.C. Civil Liberties Association, West Coast Women’s Legal Education and Action Fund, and the Pivot Legal Society, entitled “Blueprint for an Inquiry,” and we share their sentiment that, if nothing else, this Inquiry stands as an example of what should not be done when exploring complex issues involving marginalized communities.

We will be looking for certain findings of fact and recommendations in the Commissioner’s report, which in our view, despite the shortcomings of the hearing process, ought to be made. Foremost: will the report acknowledge that systemic racism, sexism, misogyny and other forms of prejudice were prevalent within the government organizations under scrutiny at this Inquiry? Among our clients, there is a common understanding that institutional prejudices against disadvantaged women, many of whom were sex trade workers and drug users, were the primary reason Pickton was able to act with impunity. For our clients, these prejudices had a profound impact on the taking of missing person reports, the allocation of resources to the missing women investigations, the failure to warn the community, and the overall lack of concern, if not outright disdain, for their missing daughters, sisters and mothers.

To a marked degree the Commission shied away from these serious, difficult, and critical issues. So-called “expert” reports produced by police officers hired to review the failed police investigations completely denied that institutional prejudices were at play. Meanwhile, other evidence that would have suggested widespread police prejudices was ignored by the Commission. For example, the Commission declined to call former RCMP Cpl. Catherine Galliford, who has made public allegations detailing sexist and racist behaviour among members of Project Evenhanded. As well, the Commission refused to admit a book written by VPD Det. Cst. Lori Shenher describing a culture of sexism within the VPD, even towards its own female members.

To find otherwise – that systemic racism, sexism and other forms of prejudice did not play a role in the failure of the missing women investigations – would be to discount and ignore the testimony of nearly every one of our clients who took the witness stand. As well, the inquiry heard evidence that employees at all levels of the VPD, from the Chief Constable to civilian clerks, were complicit in the discriminatory conduct that impeded the missing women investigations.

It will not be enough to attribute these prejudices to specific individuals alone; these prejudices were tolerated by the entire justice system, and arguably still are today. One measure of the validity of the Commissioner’s final report will surely be the extent to which it acknowledges this problem.

Some other findings and recommendations we will be looking for in the Commissioner’s final report include the following:

  • The Criminal Justice Branch failed to handle the prosecution of Robert Pickton in 1997-1998 with the vigour and level of preparation that a case of attempted murder demanded, and used the victim’s drug use as an excuse to avoid a trial for which it was inadequately prepared.
  • The victim was eager to testify and would have been capable of taking the stand had the Crown and police provided her with the assistance routinely given in such cases.
  • VPD and RCMP senior management failed to provide oversight, leadership or accountability in relation to the missing women and Pickton investigations, and failed to provide available resources to these investigations.
  • The VPD and RCMP gave inadequate priority to the missing women and Pickton investigations in relation to arguably less serious matters involving property and drug crimes.
  • The VPD had a duty to warn the public, particularly sex trade workers, that it had evidence of a potential serial killer, but it failed to do so. This failure was unreasonable in the circumstances, and put women’s lives at risk of harm.
  • The federal and provincial governments ought to provide adequate compensation to the families of the murdered and missing women.

These and other findings and recommendations were discussed at length in our written closing submissions, a copy of which is available here.

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