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Stacy DeBungee's body was found in the McIntyre River in Thunder Bay on Oct. 19, 2015handout/Handout

A retired Superior Court of Ontario judge will decide whether three Thunder Bay police officers will face a disciplinary hearing, more than three years after an investigation revealed evidence of neglect of duty and discreditable conduct in the death investigation of Ojibwa man Stacy DeBungee.

Lee Ferrier heard submissions from lawyers for the Thunder Bay Police Service, the DeBungee family, the Office of the Independent Police Review Director (OIPRD) and the police officers in a Zoom hearing live streamed on Wednesday.

The OIPRD investigated the three officers and completed its report in February, 2018, almost two years after the agency received a complaint from the DeBungee family. That report recommended a disciplinary hearing.

However, under the provincial Police Services Act, the chief of police was supposed to serve the officers notice of a hearing within six months of the OIPRD starting its probe or get an extension. Mr. Ferrier took over the case when the Thunder Bay police board recused itself from deciding whether to provide such an extension.

In his submission to Mr. Ferrier, who will decide whether the circumstances for the delay were reasonable, Julian Falconer, the lawyer for the DeBungee family, called Stacy “a poster child for all that is wrong with the Thunder Bay Police Service.” He said that it is in the public interest for the hearing to proceed because it would be a step toward rebuilding trust with Indigenous people through transparency and accountability.

Holly Walbourne, lawyer for chief of police Sylvie Hauth, told Mr. Ferrier that although Ms. Hauth did initially take the position that there was reasonable cause for the delay, she since has taken no position on the issue.

Legal counsel for the OIPRD told Mr. Ferrier that the case was nuanced and complicated, and that it wouldn’t have been possible to complete in six months because it required them to do a “good, deep dive” into the matter. Mr. Ferrier didn’t indicate how long he would take to render a decision.

The 41-year old Mr. DeBungee, from Rainy River First Nation, about 380 kilometres west of Thunder Bay, was found dead face down in the McIntyre River on Oct. 19, 2015. His family had immediate concerns over how police were handling the investigation, including calling his death non-criminal three hours after he was found.

Mr. DeBungee wasn’t the first Indigenous person to be found dead in a city river. At the time, a coroner’s inquest had just begun to examine the deaths of seven First Nations students who died between 2000 and 2011, five of whom were found in the river. The deaths weighed heavily on Mr. DeBungee’s family and the community as a whole.

There was little, if any, trust or confidence that police were taking the deaths seriously enough. Mr. DeBungee’s brother, Brad, said he felt his death was being brushed off as a stereotype of another drunk Indian rolling into the river and drowning.

In March, 2016, Brad and Jim Leonard, who at the time was chief of Rainy River First Nation where the DeBungee family is from, filed a formal complaint with the OIPRD against the three officers, who can’t be named under a publication ban.

The OIPRD proceeded with an investigation in April, 2016, and found evidence of misconduct, including neglect of duty and discreditable conduct. Several deficiencies were highlighted in its report, including how investigators prematurely determined no foul play and that they didn’t conduct formal interviews with those who were last with Mr. DeBungee.

The OIPRD investigation into his death also prompted the police watchdog to investigate the Thunder Bay Police Service itself, and how it policed Indigenous people, particularly how officers performed sudden-death investigations of Indigenous people.

The report, Broken Trust, by then-director of the OIPRD Gerry McNeilly, revealed that “systemic racism exists in the Thunder Bay Police Service at an institutional level” and that the service had a lot of work to do.

The report also called for the reinvestigation of nine deaths of First Nations people to be led by a team that included other police services. The team announced recently that it is now also investigating Mr. DeBungee’s death.

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