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

Two Thunder Bay police officers charged over their handling of a 2015 death investigation of a First Nations man didn’t exhibit racial discrimination as the prosecution alleges, their lawyer argued before a disciplinary hearing, and that the probe was instead marred by systemic problems within the service.

Staff Sergeant Shawn Harrison and Sergeant Shawn Whipple were charged with neglect of duty and discreditable conduct in 2018 under the Police Services Act. Staff Sgt. Harrison pleaded guilty to neglect of duty and not guilty to discreditable conduct, while Sgt. Whipple pleaded not guilty to both charges.

They testified last week in the hearing, which has been running for nearly three weeks. Both officers are being represented by David Butts, who made closing arguments at the end of this week.

“There is no evidence, in my submission, credibly suggesting that racism had anything to do with what Staff Sergeant Harrison did in this case.” Mr. Butts argued. “Any suggestion that Shawn Whipple acted in a racist manner, in this case in any way, flies in the face of the uncontradicted evidence.”

The charges against the two officers were laid after a complaint by the family of Stacy DeBungee, a First Nations man whose body was discovered in a Thunder Bay river on Oct. 19, 2015.

A second public complaint by then-chief Jim Leonard from Rainy River First Nation, where the DeBungees are members, prompted the Office of the Independent Police Review Director (OIPRD) to conduct a systemic review of the entire police service. It resulted in the OIPRD’s 2018 Broken Trust report that found systemic racism was a problem in sudden-death investigations of Indigenous people, including Mr. DeBungee’s.

The officers charged were detectives in the service’s criminal investigations branch at the time of Mr. DeBungee’s death. Staff Sgt. Harrison was the lead investigator and Sgt. Whipple a detective constable working under him.

Prosecutor Joel Dubois and Asha James, counsel for the DeBungee family, argued that the officers had tunnel vision going into the investigation because Mr. DeBungee was an Indigenous man known to police for liquor offences and was found at a known drinking spot where it’s not uncommon for people to end up in the water.

Staff Sgt. Harrison testified that he told team members and later Mr. DeBungee’s family that he didn’t know how the man ended up in the water, but it was likely that he passed out, rolled into the river and drowned.

Staff Sgt. Harrison said he determined within an hour of being on scene that there was no suspicion of foul play and that the first media release was to mitigate community fears of a serial killer. He testified to not approving a second media release that stated the death was not criminal, even before the autopsy was performed.

Mr. Butts said in his closing submissions that there was no evidence Staff Sgt. Harrison was responsible for the second press release.

Mr. Butts called Staff Sgt. Harrison brave for pleading guilty to the neglect-of-duty charge in a case that has national publicity. He argued that there was no evidence to support suspicions of homicide, so his client didn’t need to utilize the system of major case management.

The 21-page agreed statement of facts says that Staff Sgt. Harrison didn’t review Mr. DeBungee’s post mortem report until March, 2016. The report said that alcohol intoxication was a significant contributing condition but “not causally related to the immediate cause.” Staff Sgt. Harrison reported in his notes however, that the drowning was due to alcohol intoxication, and not foul play or a homicide.

The investigation is part of a pattern flagged in the Broken Trust report that Thunder Bay police have been quick to dismiss drowning deaths.

“Officers concluded that death by drowning meant that the death was innocently caused, rather than investigating how the deceased came to be in the water,” the report reads. It also concluded that Thunder Bay investigators “placed extraordinary weight on the deceased’s level of intoxication as if it virtually determined that the death was accidental.”

Former OIPRD director Gerry McNeilly reviewed dozens of sudden-death investigations of Indigenous people and found them so problematic that he recommended nine of them be reinvestigated. Staff Sgt. Harrison and Sgt. Whipple are named in two of those cases.

The report is a key piece of evidence for the prosecution and the DeBungee family, who argue that the officers failed to properly investigate the death because of their unconscious biases and prejudices against Indigenous people. Both officers denied that Mr. DeBungee’s cultural background had any impact on their work.

Staff Sgt. Harrison and other officers testified that they dealt with an overwhelming number of sudden deaths of Indigenous people, and that the riverbanks were known drinking spots.

The Broken Trust report found that “officers repeatedly relied on generalized notions about how Indigenous people likely came to their deaths and acted, or refrained from acting, based on those biases.” Mr. McNeilly noted in his report that this “does not represent a determination that all TBPS officers engaged in intentional racism.”

“However, overall I find systemic racism exists in the Thunder Bay Police Service.”

Both Staff Sgt. Harrison and Sgt. Whipple testified that they haven’t read the Broken Trust report, which contains definitions and examples of systemic racism.

The prosecution and Ms. James both argued in their closing submissions that hearing officer Greg Walton will have to decide if racial discrimination was a factor in the officers’ conduct.

“Harrison made an immediate assumption about Stacy DeBungee and how he died,” Mr. Dubois argued. “I submit to you that this is the beginning of Staff Sgt. Harrison’s tunnel vision, the beginning of his closed mind and in fact it tainted the entire rest of the investigation going forward.”

Staff Sgt. Harrison pleaded guilty to neglect of duty for failing to meet with the private investigator hired by the family about a month after the death. Within days, David Perry came up with several leads, including that Mr. DeBungee’s bank card had been used after his body was found. Staff Sgt. Harrison declined to meet with Mr. Perry and Brad DeBungee, Stacy’s brother, who went to the police station with information about the case.

“It’s a mistake I made. I wish I had done it, but I didn’t,” Staff Sgt. Harrison told counsel for the DeBungee family.

The hearing was adjourned until Sept. 26.

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