THUNDER BAY POLICE DISCIPLINE CASE UP FOR DETERMINATION
- Posted by Shelby Percival
- Posted in BlogsNews
Link to a Live-Stream Broadcast of the February 10th Application Proceeding – Starts at 1:30pm EST
- YouTube Link: https://youtu.be/jy1-ilVscZs
PowerPoint used by First Nation Public Complainant
PowerPoint used by First Nation Public Complainant
Falconers LLP has the honour of representing Brad DeBungee and Rainy River First Nations (“RRFNs”), who have been fighting for over five years for transparency, accountability, and answers in relation to the death of RRFNs member Stacy DeBungee. Stacy was found dead in the McIntyre River in Thunder Bay on the morning of October 19, 2015.
An important step in Brad DeBungee’s and RRFNs’s quest for transparency and accountability will take place on February 10, 2021, starting at 1:30pm EST: the honourable Lee K. Ferrier, acting in place of the Thunder Bay Police Services Board, will hear an application brought by the Chief of Police under s. 83(17) of the Police Services Act (“PSA”). Mr. Ferrier’s decision on the application will determine whether three Thunder Bay Police Service (“TBPS”) officers will face disciplinary proceedings under the PSA for their conduct in the investigation into Stacy DeBungee’s death. The February 10th proceedings will be live-streamed on YouTube: https://youtu.be/jy1-ilVscZs . The proceedings are subject to a publication ban on the officers’ identities.
The question before Mr. Ferrier is whether the delay between (a) the time that the Office of the Independent Police Review Director (“OIPRD”) retained complaints made by Brad DeBungee and then Chief of RRFNs Jim Leonard, and (b) the time the TBPS Chief of Police was ready to serve the TBPS officers with notices of disciplinary hearing was reasonable. Under s. 83(17) of the Police Services Act, a chief of police may not serve notices of disciplinary hearing if it has been more than six months since the OIPRD retained a complaint, unless the Board first determines that the delay is reasonable.
Falconers LLP submitted complaints to the OIPRD on behalf of Brad DeBungee and former Chief Leonard on March 18, 2016. The OIPRD retained the complaints on April 22, 2016, which led to two investigations by the OIPRD: a conduct investigation specific to TBPS officers involved in the TBPS’s investigation into Stacy DeBungee’s death, and a broader systemic review of the TBPS’s policing of Indigenous people. (Further information linked at the bottom of this page). The OIPRD provided the Chief of Police with its Investigative Report into misconduct allegations on February 15, 2018. The OIPRD found there was sufficient evidence to believe, on reasonable grounds, that TBPS officers had committed misconduct of a serious nature: neglect of duty by three officers, and discreditable conduct (specifically, discriminatory conduct relating to Stacy DeBungee’s Indigenous status) by two of the three officers.
On March 7, 2018, the OIPRD directed the Chief of the TBPS to bring a s. 83(17) application to the Board to permit service of Notices of Hearing on the three officers. The Chief filed its application, which was set to be heard by the Board in April 2016. However, the Board – who was itself under investigation by the Ontario Civilian Police Commission about the alleged failure to exercise its oversight function to address concerns about the TBPS’s policing of Indigenous people – recused itself. This led to a court appointment of a retired judge, the honourable Lee K. Ferrier, to hear the s. 83(17) application in place of the Board.
Mr. Ferrier was scheduled to hear the s. 83(17) application in September 2018. However, that date was put on hold to permit the appeal of his preliminary decision that the application hearing would be held in camera (i.e. would be a secret hearing with no public access). Brad DeBungee and RRFNs, along with CBC, fought for over two years to have the s. 83(17) hearing be open to the public. They were unsuccessful at the Divisional Court but were granted leave to appeal to the Court of Appeal of Ontario. In December of 2019, the Court of Appeal issued a decision in favour of openness, directing Mr. Ferrier to reconsider the question of openness with the benefit of the Court of Appeal’s decision. The Thunder Bay Police Service asked the Supreme Court of Canada to hear an appeal of the Court of Appeal’s decision, but the Supreme Court denied this request. In December 2020, after receiving further submissions from the parties, Mr. Ferrier ordered that the s. 83(17) application would be heard open to the public, and ordered a publication ban on the officers’ identities.
The application will be heard by Mr. Ferrier on February 10, 2021, starting at 1:30pm. On February 4, 2021, Mr. Ferrier confirmed the public’s right to record and rebroadcast the February 10th proceeding, subject to the existing publication ban.
The Thunder Bay Police Services Board has ordered a prohibition on any further publication of the names of, or any identifying information relating to, any officers named in the OIPRD investigative report or in any other documents or reports filed on the extension application. Any information that could identify any officers shall not be published, broadcast, or transmitted in any way.
Related Posts on the OIPRD Complaints and Findings (Individual Conduct and Systemic)
https://falconers.ca/casestudy/stacy-debungee/ (June 20, 2016)
https://falconers.ca/oiprd-outlines-broad-terms-reference-review-thunder-bay-police-service/ (Nov 3, 2016)
https://falconers.ca/cbcs-national-features-oiprds-damning-report-thunder-bay-polices-investigation-death-stacy-debungee/ (March 4, 2018)
https://falconers.ca/first-nations-leaders-call-thunder-bay-police-chiefs-resignation-wake-scathing-oiprd-report/ (March 5, 2018)
https://falconers.ca/oiprd-releases-its-report-on-systemic-racism-in-the-thunder-bay-police-service/ (December 12, 2018)
Related Posts on the Fight Against a Secret Hearings
https://falconers.ca/disciplinary-hearing-stacy-debungee-death-investigation-cancelled-thunder-bay-police-board-tbpb/ (April 6, 2018)
https://falconers.ca/chief-of-rainy-river-first-nations-speaks-out-against-secret-hearing/ (October 3, 2018)
https://falconers.ca/superior-court-judge-halts-secret-hearing/ (October 4, 2018)
https://falconers.ca/december-6-2018-cbcs-judicial-review-application-on-secret-debungee-police-service-act-hearing-heard-by-the-court-in-thunder-bay/ (December 7, 2018)
https://falconers.ca/first-nations-public-complainants-appeal-the-decision-of-the-divisional-court/ (January 22, 2019)
https://falconers.ca/falconers-llp-appears-at-court-of-appeal-on-behalf-of-first-nation-public-complainants/ (October 31, 2019)
https://falconers.ca/no-more-secret-hearings-court-of-appeal-for-ontario-affirms-importance-of-openness-in-police-board-hearings/ (December 27, 2019)
Mr. Ferrier’s December 2020 Openness Decision
Lee K. Ferrier’s December 2020 Openness Decision
Press Advisory – Thunder Bay Police Discipline Case Up For Determination