Something’s got to give with IIO
This week, to no one’s surprise, the Criminal Justice Branch (CJB) issued a media release saying there would be no criminal prosecutions against members of the Vancouver Police Department arising from a report to Crown Counsel submitted by the Chief Civilian Director (CCD) of the Independent Investigations Office (IIO) following a running gun battle that started in Yaletown and ended at Science World on June 10, 2014.
At the time I reported about that case in this space, I said, “Yet again, we see the incredible overreach in what should be a cut and dried case.”
What was surprising is that the CCD, Richard Rosenthal, issued a statement of his own regarding the incident. It can only be described as an attempt to justify his existence by trying to explain his actions in this.
Said Rosenthal, “In this case, based on the evidence obtained, the IIO was unable to unequivocally conclude that there was no potential that an offence may have occurred. This was due to the potential risk of harm to bystanders as a result of some of the shots fired by the officers. The fact that the involved VPD officers acted heroically that day and successfully gained control of a volatile incident that jeopardized both the safety of the public and responding officers did not eliminate the IIO’s responsibility to fulfill its mandate by making referrals to the Criminal Justice Branch as per the required referral standard.”
Risk of harm to bystanders? Really? Is that what this was all about? Well, yes apparently. In the CJB media release, they said this, “This analysis took into account the potential for collateral injury from gunfire in an urban setting and close proximity to a highly popular tourist attraction. To obtain a conviction for this offence, the Crown would need to prove that an officer’s conduct constituted a marked departure from the standard of care of a reasonably prudent police officer in the circumstances that existed.”
Rosenthal is severely misguided if he thought that any of the actions of the VPD on that day “may” have constituted criminal behaviour. Regardless if a bystander had been hit by an errant police bullet. Indeed, if a child coming out of Science World had been hit and killed, that would have been a tragedy, but it would not be a crime.
The police were fired upon immediately after the suspect shot another man in Yaletown. A chase ensued followed by a gun battle just in behind Science World. The gun battle can be seen here.
Rosenthal seems to think his mandate is to prosecute police officers. Their mandate is actually to investigate incidents involving serious injury or death and to determine whether or not the police acted appropriately. In those rare cases where an officer may have committed an offence then the CCD is to write a Report To Criminal Justice Branch (RTCJB) outlining what crime he thinks “may” have been committed and what evidence there is to support that.
According to Rosenthal, he believes in the three years he has been in the position, that police “may “ have committed crimes 45 times. In two of those cases, charges were laid by CJB and later stayed of which regular readers will know I have written extensively. In one case one officer pled guilty to fail to yield the right of way when making a left turn under the Motor Vehicle Act.
In another that went through trial on a charge of dangerous driving, the officer was acquitted. There is a charge pending of careless use of a firearm against a Delta police officer from circumstances of what appears to be an accidental discharge. And two more from the Island that have yet to be dealt with.
The vast majority of submissions resulted in charges not being approved. Rosenthal hides behind the “may have been committed” weasel words used in the Police Act as an excuse to forward most things to CJB instead of making a decision.
In one case, he tried so desperately to get a charge laid that he was even trying to push a bylaw charge against a VPD dog master for driving a vehicle in a park. Seriously.
This man is an enemy to every police officer in the province. His flights of fancy have already put two good cops through hell before their cases were ultimately stayed. And, he has caused at least one 13 year member of the RCMP to quit after being put through the rigours of the IIO nonsense even though he acted appropriately and the investigation established that. He told me he just didn’t want to put his family through it again.
Cops in BC don’t have a problem with civilian oversight. They just want to be treated fairly and have a competent investigation done into their actions as required. At this point, they have no such confidence.
Rosenthal has lost or fired all the competent, experienced investigators he had. One of his current directors is a former CBC reporter for God’s sake. There is little or no experience left with major case management.
New IIO investigators go through a 10 week training program at the Justice Institute in basic skills like report writing, statement taking and the like. They do not take any use of force training which is the very thing they are supposed to investigate. In both cases where charges were laid and later stayed, they clearly demonstrated the lack of understanding of police procedures and use of force basics.
How can any police officer have any degree of confidence in the IIO fairly investigating their actions?
Earlier this month I had the pleasure of speaking to the Abbotsford Police Department at their formal dinner. I said then and in front of the Chief, that in my opinion, any police officer designated as a subject officer should not cooperate with an IIO investigation. They have a duty to report on the incident. That report is made available by their department to the IIO. That should be the length and breadth of it. If you know that any investigation is trying to get something, anything to prosecute you, why would you cooperate further?
Equally, I also said that if I were a Chief Constable I would write a letter to the Premier and the Solicitor General demanding this be fixed or I would exercise my right under Section 23 of the Memo of Understanding (MOU) with the IIO to withdraw with 30 days notice. And I would get every like-minded Chief to also sign the letter.
In my view, that’s the only way this mess gets fixed.