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Brad DeBungee's brother, Stacy, was found dead in a Thunder Bay river in 2015. Brad and his family believe the city's police failed to properly investigate what happened to Stacy.

David Jackson/The Globe and Mail

The Ontario Court of Appeal, in a decision reinforcing the need for transparency, ruled that a retired judge must reconsider a decision to hold a hearing in private about the disciplinary process of several Thunder Bay police officers.

Police services board meetings and hearings are presumed open to the public under the province’s Police Services Act (PSA), but the retired judge, Lee Ferrier, used a narrow exception in the act a year ago that allows for closed sessions.

The case stems from the death of Stacy DeBungee, a 41-year-old man from Rainy River First Nations, who was found in Thunder Bay’s McIntyre River in 2015. Within a day of finding his body, Thunder Bay police officers declared his death “non-criminal.” In 2018, the Office of the Independent Police Review Director (OIPRD), a civilian agency that handles police complaints in Ontario, found that three officers involved had committed misconduct based on the inadequacy of their investigation or oversight.

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Because more than six months had elapsed between the complaint of misconduct and the OIPRD’s decision, the Thunder Bay Police Services Board was required to hold an extension hearing to decide whether the delay was “reasonable,” before it could move forward. The board declared a conflict of interest and Mr. Ferrier was appointed by the Superior Court to make the decision. Mr. Ferrier subsequently decided to hold the hearing in camera. In response, CBC and Rainy River First Nations mounted a legal challenge.

In the court’s unanimous decision released Friday, Justice Robert Sharpe argued that Mr. Ferrier should favour an open hearing, citing “racial tension" between the Indigenous community and the Thunder Bay Police Service. One year ago, the OIPRD found the existence of “systemic racism” toward Indigenous people within the police force.

The Court of Appeal’s determination “largely turns” on the appellate court’s decision from earlier this year, which affirmed the right of the public to attend police services board meetings, in accordance with the Canadian Charter of Rights and Freedoms, Justice Sharpe wrote.

Justice Sharpe also encouraged Mr. Ferrier to take into consideration the social context of the case, including questions of systemic racism within the Thunder Bay police and the need for transparency.

In oral arguments in late October, Julian Falconer, representing Rainy River First Nations, argued that the Divisional Court, which upheld Mr. Ferrier’s decision, had failed to take these factors into account.

“This is not a personal intimate matter, it’s a public discourse,” Mr. Falconer said before the court, referring to one of the PSA exceptions.

“Speaking for myself … I would have thought you’d have to be from Mars not to get [the public significance],” Justice David Doherty said.

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Joanne Mulcahy, counsel for the responding officers, argued that Mr. Ferrier sufficiently considered the social context, referring to the extension hearing as a “preliminary step.”

“Probably the most crucial step!” Justice Doherty interrupted.

Mr. Falconer described Friday’s decision as “a major victory” in efforts to ensure that police services generally, not only in Thunder Bay, are publicly accountable for all stages of misconduct proceedings.

“The Court of Appeal’s judgment represents a resounding rejection of the old approach that police-conduct cases are simply an employment matter between the officers and the Chief,” Mr. Falconer added.

Ryder Gilliland, counsel for the CBC, added, “We are pleased that the decision has been remitted back to Mr. Ferrier with the Court of Appeal underscoring the importance of the constitutional right of openness in the administrative context.”

Counsel for the Thunder Bay chief of police and Mr. Ferrier declined to comment. Georjann Morriseau, the Chair of the Thunder Bay Police Services Board, also declined to comment.

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