The Decibel - Why police are rarely charged after killing or injuring someone

Episode Date: March 2, 2023

Canada has a high rate of police killings compared to similar countries like England, Germany and Japan. Officers are rarely charged when they kill someone, and they don’t even have to participate in the investigations into their conduct.The Globe’s Nancy Macdonald spent months looking into hundreds of investigations into police officers, how often officers co-operate and the consequences of their silence.Questions? Comments? Ideas? Email us at [e-mail]

I can't think of anyone else, I mean, that could literally kill someone and walk away with no consequences whatsoever. That's Margie Gray. She's the mother of Miles Gray, who died after a struggle with police in 2015. All the cop cars, all the ambulances, all the, like just the chaos and mayhem of that scene. It, it was awful. They were there immediately after my 911 call, which I thought was a bit strange myself. And then they kept coming and going and coming and going like different police, different police just kept coming and going. And, um And they're like, oh, we'll have something for you soon. They're all on the radios. And I'm like, what the hell is going on? And after a period of time, this big VP officer, undercut, tall guy, dark hair came up to my husband and I and said, Mr. Gray, your son was in an altercation

and he died of that altercation. And he turned on his heels and left. We were told nothing. Miles was alive before the altercation. He was dead after the altercation. Compared to similarly wealthy countries, Canada has a high rate of police killings. We're nowhere near the U.S., but our rate is seven times higher than Germany, 20 times higher than England and Wales, and 50 times higher than Japan.

That's according to the think tank, Prison Policy Initiative. But even with this rate of police killings, officers in Canada are rarely charged. And when there's an investigation, they don't even have to participate, which makes it difficult for police oversight bodies to find out what happened. The Globe's Nancy MacDonald has been looking into

how often officers refuse to participate in police oversight investigations and the consequences of that silence. I'm Maina Karaman-Wilms, and this is The Decibel from The Globe and Mail. Nancy, it's great to have you here. Thank you so much for joining me. Thanks for having me. We're talking about a really big issue today, police oversight in Canada. And in order to understand why this is important, I want to start by talking about Miles Gray. Who was Miles? Miles was a business person from the Sunshine Coast, which is actually part of the BC mainland,

but there's no roads there. So you access it by ferry. Miles was a brother, a son. He ran a small business from Sechelt providing greenery to florists. So the ferns and stuff that come in your flowers, that's what he did. You know, he was at that place at 33 years. He was at that place where you want your son to be. He finally grew into the person that he should be. You know, he had a very positive mindset. He just became the person you wanted your son to be. So that day, what happened to Miles? So this was in the summer of 2015, which was, I think, one of the, if not the hottest summer on record in the Lower Mainland. There were wildfires across the province. And it seemed like a regular day. Miles was making

deliveries in the Lower Mainland in Vancouver and Burnaby and got on the ferry that morning, texted with his mom, and then spent the morning making deliveries. He used to like to take walks in between deliveries or when he had some time off. And I got a call from a worker, like one of his employees in Sechelt, saying, why has Miles' van not moved? They want the van moved. And it was at a floral outlet in Burnaby. And right away, I just had that gut punch feeling that something was incredibly

wrong. And so around noon, he had a bit of a window and seemed to go off for a walk. What happened was he encounters someone who is watering their lawn, a woman who's watering their lawn. Obviously, there were these water restrictions in place. And so he said something to her. It's not really clear what. He might have kinked the hose. And so when he let it go, it sprayed her. But something about his manner and the way he was talking alarmed this woman's son, who called police. And there was another neighbor who witnessed this and said, you know, Miles seemed agitated.

He was speaking really fast. They couldn't really understand what he was saying. So, you know, maybe he's having a vulnerable moment. Maybe something's going on. And so police are called and Miles walks off. An officer found him and started talking to him. When she started talking about the hose, though, he became agitated and wandered off. And so she called backup. And seven officers followed him into that yard. And seven officers. Yeah. And it's not I mean, the only people who

saw this, there were no cameras, no witnesses. The only people who know what happened are those seven officers and Miles, obviously. And so, like, do we know anything that happened there? Miles is in the yard, seven officers are in there with him. What went down? Well, it's not clear what. So these officers give what investigators say are incomplete and inconsistent accounts of what happened. They did acknowledge that they hit him with batons. They acknowledged hog tying him, which means your hands are cuffed behind your back and your feet are hobbled, essentially. They said he lost consciousness once, regained consciousness and continued to fight.

How, it's not clear. He was hobbled and eventually went into cardiac arrest and died. Wow. We know a couple of officers had minor injuries in that altercation, but what about Miles? Like, what kind of injuries did he have? I mean, I think it's worth mentioning that the next day, the Vancouver Police Department, in its only comment still to this day on the arrest, said that six officers had to be taken to hospital, two with serious injuries. The Crown clarified years later that no one went to hospital. Two had small cuts, one above the eye from a branch,

and the other had a five-centimeter cut on the chin. Wow, those are very different scenarios there. Yeah, absolutely. In terms of Miles, the damage was severe. He had a broken nose, broken eye socket, brain bleeding, broken voice box, two ruptured testicles, broken ribs, possible broken jaw. So he was badly, badly beaten. We identified him only by a photo of his necklace. I know why we didn't see him.

I know why we didn't get to identify him because he was in such horrific shape. And I know that because the mortuary basically told us like, you know, when you talk about funerals and options and you talk about the open casket, he just had this horrified look on his face and shook his head no. So that says a whole lot. Wow. So, I mean, this is, it's a really awful story. An altercation over a hose ends up in Miles dying here.

Nancy, what is, what's supposed to happen at this point in a situation, though? When a police officer injures or kills someone, what's supposed to happen next? out to investigate and find out whether police may have crossed the line. In, you know, 99% of cases, they find, you know, that police use justifiable force. But in this case, the IIO in BC, which is the Independent Investigation Office, they had concerns about what happened, and they forwarded a file to Crown suggesting that charges in this case might be warranted.

And so what happened with the officers in Miles' case then? What happened in this situation? Nothing, ultimately. The Crown decided that they weren't likely able to get a guilty finding, and so they decided not to charge the officers. You said something a bit earlier, though, about how we don't really know what happened. So do we have, I guess, a coherent set of events that they could actually look at when they were doing this investigation? No, because the officers decided not to speak with investigators. They have notes from a couple of them, but it's unclear, partly because most of these officers declined to speak with investigators. Well, to me, there really was no investigation. I mean, the IIO, they conducted their investigation

to the limited scope of their power, which they really don't have power. So within their limited of scope, they did what they could, which wasn't much. And why would they decline to speak with investigators? So they have the same right as you and I right now. They have the same right to silence. Okay, so it is legal for officers not to participate in these investigations? Like, what does the law say there? It wasn't always. I mean, the first body like this in Ontario, the Special Investigations Unit, when it started up, officers were almost always speaking with investigators. But within a couple of years, police lawyers got involved and said, no, no, no, no, you know, you're not going to be

speaking with those investigators. And eventually this was formalized into a rule in the Police Act in Ontario. And every province has brought in, when they bring in these police oversight bodies, they've basically copied the Ontario model and have included that regulation that gives officers who are under investigation the right not to speak with investigators. So you said, you know, officers have the same right as you or I, but we should note, though, like police officers have special responsibilities and privileges that regular civilians don't have. For one, they carry a gun. So, I mean, should they be afforded the same rights? Well, there's a lot of people who argue that they shouldn't.

You know, they carry a gun. They can pull you over on a whim. They can detain you. And that there have to be special responsibilities that come along with that, including, you know, explaining what led you to fatally shoot someone or fatally harm someone. Nancy, we've been talking about one specific case here, but how common is it that police officers don't participate in these investigations? Well, that's exactly what the Globe set out to find out.

You know, we wanted to know whether this was systemic. And we looked at these investigative bodies for four, five provinces, B.C, Alberta, Manitoba, Nova Scotia, Ontario. Quebec doesn't provide the information that we needed, so we couldn't look at what Quebec was doing. There are a couple of provinces like Saskatchewan and Newfoundland that have these bodies in place, but they're so new that there just wasn't enough, there weren't enough decisions to provide any kind of meaningful data. And we looked at all decisions going back five years. And we were looking to see whether subject officers, one, agreed to provide their notes and two, agreed to be interviewed. And just to clarify, when you say subject officers, so this is an officer that actually is involved in harming someone. Other offices around there

are witness officers then, is that right? Yeah, we're speaking about subject officers. So that's the officers whose behavior is being investigated. Witness officers don't have that protection that subject officers do. Witness officers have to speak with investigators. They have to provide their notes. So there's no choice for them. But for subject officers, yeah, they do. They are given that choice. And so for subject officers who do have that choice, what did your investigation find in terms of how many of them actually choose to participate in these investigations? So BC was the low watermark. It was, you know, just 2% of officers. So it's extremely rare in BC for an officer to speak to the IIO, for a subject officer to speak to the IIO. A little higher on the

prairies, 12% in Alberta, 12% in Manitoba. Nova Scotia was 15%, so still very low. The highest we found was in Ontario, but that number is 24%. So, you know, in 76% of cases, officers are refusing to fully participate with these investigations. Wow. Okay. So a range there, 24, the high mark in Ontario, but 2% in BC, incredibly low. And I wonder, is it different? We're talking about when police officers injure or kill someone. Do we have a breakdown on those two factors in terms of how this number breaks down? Well, you know, one thing I did look at is what happens when officers are involved in fatal shootings. And the data there was pretty interesting. None of the 16 BC subject officers

who were involved in these shootings in the last five years agreed to full cooperation. In Manitoba, it was just one of 12. Wow. And so what does that mean for an investigation? If you have someone who's been killed by a police officer, but the police officer is not ready to say what happened, what does that mean for that investigation into that incident? Well, I mean, in some cases, there's civilians shoot cell phone video or, you know, civilians are called in as witnesses. But in a lot of cases like where this case involving Miles Gray, there are no other witnesses. So they're relying on police to tell investigators what happened. And so in those cases, we often get incomplete, inconsistent, or no account.

And then people cannot be held to account because there's no information, essentially. Well, that's exactly it. And that's what happened in Miles' case where the IIO thought charges were warranted, but the Crown recognized they had no, there was no possibility of getting a guilty verdict given they just could not tell a judge or jury what happened. We'll be back after this message. So Nancy, once an investigation is going on, how often are officers charged or convicted? It's really low. So in the last two decades, 1,129 Canadians have died in encounters with police. That's, I mean, that's close to what, 50 a year, something like that? Yeah, a little over 50 a year, I would think. So in that time, 22 officers in total since 2000 have been charged with culpable homicide, so manslaughter or murder.

And this is in the deaths of 13 civilians. So of those 1,129, in 13 cases, prosecutors decided to lay charges. All 13 of those officers who have stood trial so far have been acquitted. There was the case in Toronto that most Torontonians will remember, James Forcillo. He was the officer charged in the death of the teenager Sammy Ateem. He was found guilty of the lesser charge of attempted murder. He did serve 21 months in prison, but he would be the only officer charged and found guilty and served time for culpable homicide. Wow. Okay. So only one officer in those just over two decades that was actually found guilty.

Yeah. Does it depend on who the victim is, Nancy? We hear a lot about how different people are often treated differently by police officers and law enforcement. So what did your investigation find out around that? We looked at fatal shootings by officers in prairie provinces. In Manitoba, it turned out all six people shot to death by police were First Nations in Saskatchewan. It was five of six. Alberta, 17 of 20 people shot by officers were Black, Indigenous, or people of color. And so overwhelmingly in these provinces, it's non-white victims. And in very, very few cases are police charged in the deaths of non-white victims.

In 28% of cases when officers were charged with culpable homicide, they were charged in the deaths of non-white civilians. So overwhelmingly, when these charges do rarely occur, it's when police have killed a white victim. Nancy, there's been a lot of discussion around policing and police oversight, particularly in the last few years. In 2020, of course, we saw the murder of George Floyd in the States and then the international Black Lives Matter protests. I wonder, has there been any change since then in how police handle investigations like this? Well, two more provinces have brought in these investigative bodies, Newfoundland and Saskatchewan. Saskatchewan just came online in January. So those, you know, so we now have two more provinces with investigative bodies, but little has changed in the way they're handling these investigations. And, you know, one big change is an increase in the number of people dying in interactions with police.

Wow. Last year saw the most deaths of any year on record, 69, almost twice what they were in 2019 by comparison. Really? Wow. I mean, I think it's wonderful that Newfoundland and Saskatchewan have these oversight bodies, but I think what we're finding is that it's not clear that they're accomplishing what they set out to do. And part of the problem

is I think that these officers are not fully participating in investigations into their behavior. Yeah, because I guess the question then becomes, I mean, why keep these police oversight agencies around if they're not really helping? Because they're being hampered by the fact that officers are not talking to them in the course of these investigations. And is that something that I guess experts that you've talked to, is this a point that's being raised? Well, I mean, some have come up with solutions. So, Andre Marin, who was the former head of the SIU in Ontario, he thinks that if an officer refuses to say what happens in one of these cases, then they can continue working for the police, but in an administrative capacity. They can no longer interact with civilians, but

you take away their gun and they're on death duty, basically. If you can't, if you're unwilling to say what happened, then you get sidelined. Or others, Howard Morton, another former head of the SIU, thinks that the regulation should be changed and that we should require subject officers to participate fully in these investigations. And is that a potential, like how feasible would it be to make that kind of change? It would be a peach province. And it would be very controversial because I think police would be very angered by that change. And so it would be very hard for a province to make that change to the regulations. But it can be done.

I mean, this is obviously a difficult issue here. And I guess I just wonder about, you know, what are the consequences of officers refusing to participate in these investigations? Like if we bring it back to Miles, Nancy, like, what does it mean for Miles's family here? Well, just imagine you're Miles's mom and your son goes off one morning. And the next thing you know, you get a call from policing that he's died in an interaction with them. You don't know what happened. You don't know what was going on beforehand. All you know is that your son was viciously beaten and ended up dead. And the officers responsible for it are able to continue working. And even though they haven't, you know, been willing to tell

investigators and Miles's mom what happened. Yeah. Yeah. And I mean, in a situation like that, there's no accountability that ends up coming out of that. And beyond this one case, though, I mean, what does this do to trust in police? Like when officers refuse to participate in these kinds of investigations, what does that mean for the relationship between civilians in police? Like when officers refuse to participate in these kinds of investigations, what does that mean for the relationship between civilians and police? Well, you know what? The reason these oversight boards

or bodies were brought in in the first place was to try to, it was so that civilians could have trust in police. And a lot of the times, these bodies were brought in in the wake of high-profile killings in police. And a lot of the times, these bodies were brought in in the wake of high-profile killings in Ontario. The SIU was brought in in response to the shooting deaths of a number of young Black victims. In Manitoba, the IIU, the Independent Investigations Unit, was brought in

in response to a lot of frustration by Indigenous communities with their dealings with police, accusations of cover-ups, that sort of thing. And so these bodies were meant to solve the problem. They were meant to restore the faith of civilians in their police. That was the point of doing this. That was the point of spending tens of millions of dollars every year. But if police officers aren't willing to take part in these investigations, aren't willing to take part in these investigations, aren't willing to fully participate, then it means that the public will lose faith in their police.

It really fractures your faith and trust on many, many levels. Many levels. It is horrific beyond belief. Like, I used to think these systems were in place to bring about justice and truth, but no, there's been no justice and no truth. Nancy, thank you so much for taking the time to speak to me today. Thank you. That's it for today. I'm Manika Raman-Wilms. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin.

David Crosby edits the show. Adrian Chung is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.