Vancouver, BC [November 17]—The BC Civil Liberties Association and Pivot Legal Society reacted this afternoon to the findings contained in the Civilian Monitor's report, released today, into the Independent Investigations Office's (IIO) investigation of the shooting death of Gregory Matters.
Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.
BCCLA Executive Director Josh Paterson stated: "This report makes clear that serious errors were made by the IIO in the conduct of the Gregory Matters investigation, and that there is a cultural problem within the IIO that needs to be fixed. The IIO must come forward with a comprehensive account as to how these problems have been fixed or will be fixed and not repeated in the future."
The report, by lawyer Mark Jetté who was appointed as Civilian Monitor, set out that the Chief Civilian Director (CCD) had appointed two "advisers" to be involved with the on-the-ground investigation in Prince George - one who was at the time receiving a paycheque from the RCMP, and another who had served with the RCMP in British Columbia more recently than the 5 year restriction on employing BC police officers as investigators at the IIO. While the civilian monitor concluded that there was nothing dishonest, biased or corrupt about the conduct of these advisers, "the mere fact of their participation is inconsistent with the principles which underlie the creation of the IIO." The civilian monitor summed up that this had impacted the integrity of the investigation. The deployment of the advisers "had the effect of undermining the civilianization scheme in the Act, which in and of itself has had an impact on the integrity of the investigation. It is an impact which is impossible to quantify."
Paterson said: "The Civilian Monitor report concluded that the IIO compromised its core mission - independence from police - in a way that calls the integrity of the Gregory Matters shooting investigation into question. Instead of guaranteeing the utmost independence of its first-ever investigation, the IIO opted for a "should be ok" level of independence instead. It relied on two people who were not legally allowed to be IIO investigators to assist and even make decisions in the investigation, even though the Police Act banned them from being investigators because one was on the RCMP payroll at the time, and the other had been a BC police officer within the past five years. When judging the independence of investigations of police officers, appearances don't just matter - they are critical. Whether or not it affected the result of the investigation, the IIO failed in its critical responsibility of safeguarding of the Matters investigation."
The report concluded that these advisors "were to some extent involved in operational decision making while working in Prince George as “advisers” [...] duties reserved by statute to someone who had been appointed as an investigator." The civilian monitor stated that the use of these advisors could result in a loss of public confidence: "Here the concern that an oversight agency not be steeped in police culture was subordinated to the perceived need for a higher level of expertise. If widely known, these facts may to some extent damage the public's confidence that the investigation was conducted in a fair and unbiased manner, which might in turn cause the public to lose confidence in the CCD's decision not to refer the case to the Crown."
Equally concerning to the BCCLA and Pivot was the manner in which this was done. The Civilian Monitor reported that the Chief Civilian Director used a section of the Police Act in a way that the Legislature had not intended to place these advisers at the front line of the investigation. The Civilian Monitor sharply criticized the IIO stating that "scrupulously follow its mandate to provide fully independent investigations of critical incidents involving police requires that the office respect both the letter and the spirit of the law as set out in the Police Act. It is my view that deploying Mr. Fitzpatrick and Mr. Kennedy to Prince George by invoking section 38.06(5) of the Act [allowing the hiring of advisers], while consistent with the letter of the law (neither was appointed as an investigator), was a work around designed to place de facto investigators on the ground and involved at the very onset of this important investigation. I find that section 38.06(5) was not intended for this purpose. I also find that this was a decision taken by the CCD as a lesser of two evils, having concluded in his own mind that optics would need to give way to competence; in other words, this was a risk Mr. Rosenthal was prepared to take."
Doug King, lawyer at Pivot Legal Society, stated: "We are disappointed to learn of the use of this sleight-of-hand manoeuvre to get around the requirement of the Police Act that no investigator be used who is currently or recently a member of a police force. The principle that the investigations be conducted by civilians is at the very core of the IIO's reason for being. This must not happen again and the IIO must move towards complete civilianization as quickly as possible in order to guarantee its independence from police, both in fact and in appearance."
The Civilian Monitor report also stated that the IIO did not provide information about the status of the two advisers and their role in the investigation to the Coroner's inquest into Gregory Matters' death. Paterson added: "We are concerned that information about the active participation of these two individuals in the Matters investigation was not apparently shared with the Coroner or the Matters family as part of the disclosure in the inquest."
The Civilian Monitor also reported that he was told by a number of people within the IIO "that a broader culture problem exists at the IIO, and I am persuaded that this is so," responding to information alleging such a problem in the complaint filed with the BC government.
King added: "It is clear that work to be done internally within the IIO to fix its internal difficulties and cultural problems, to ensure that it can do its job to the highest possible standards and to ensure public confidence. We understand that in the wake of these allegations, the IIO has attempted to work on its internal organizational culture. We hope so because it is critical to the success of the agency."
The Civilian Monitor concluded that the initial public report into the death of Gregory Matters was "misleading in its effect", though not in intent, in that it failed to identify that Matters had been shot in the back and rather stated that he had been hit by "two gunshot wounds to the chest." Paterson commented: "Making a mistake about where Greg Matters was shot in its public report was a significant error that contributed to undermining confidence in this investigation, and led to our call for an independent review. This kind of mistake is not acceptable and it must not be repeated in future."
In October 2013, BCCLA, Pivot Legal Society and Justice for Girls called for the appointment of a Civilian Monitor to review the IIO's investigation. In June 2014, the IIO said that it would not appoint a Civilian Monitor, but reversed itself a few days later when a former employee filed a complaint to the provincial government.