In 2015, on a hot summer day, Myles Gray got in an altercation with a woman in the Vancouver suburbs. The police were called. Not long after, Mr. Gray was dead.
Seven officers were there and no one else saw the incident. Mr. Gray ended up with numerous broken bones and bleeding in his brain, suffered cardiac arrest and died. Police the next day described Mr. Gray as distraught and agitated.
In early 2019, British Columbia’s Independent Investigations Office filed possible charges against the police, including manslaughter, to Crown prosecutors. The seven officers had refused to speak with investigators and the IIO was able to obtain only some of their notes on what happened. In late 2020, the BC Prosecution Service said no charges had been approved, citing inadequate evidence.
Policing can be dangerous. Five officers have been killed in the line of duty in the past six months alone. But serving as an officer also carries an awesome responsibility: the power to legally detain citizens, to assault and even to kill. With that power comes solemn obligations, such as fully co-operating in investigations, particularly those involving a death.
Canadians have a Charter right to not incriminate themselves. But an officer in uniform, with a gun and the right to use deadly force, is not the same as an ordinary Canadian. There is no simple legal path to oblige police officers to co-operate with criminal investigations. But reforms are clearly overdue.
Independent police oversight emerged from cases of deaths at the hands of police. Ontario’s civilian-led Special Investigations Unit was the first in 1990. The B.C. IIO was created in 2012. Both focus on serious incidents and deaths. But the general oversight system still needs improvement, from inadequate funding and a thick veil of secrecy to former police officers conducting investigations and the role of the Crown.
A Globe and Mail investigation highlights a troubling trend at the heart of Mr. Gray’s case – the absence of co-operation of officers. The Globe reviewed more than 2,500 oversight cases in five provinces in recent years to understand the role of “subject officers.” In the early days of Ontario’s SIU, co-operation was standard. It’s now the opposite. In B.C., The Globe found that less than 1 per cent of police fully co-operated in cases that involved death. Almost 80 per cent refused to co-operate at all. In Ontario, 25 per cent fully co-operated; 35 per cent partly co-operated; and 40 per cent refused to co-operate entirely.
This lack of police co-operation in cases involving deaths comes as there’s been a surge of incidents. According to data from Tracking Injustice, Canadian police officers killed 69 people in 2022. That is more than double the number of deaths in each of 2018 and 2019 and is the highest single-year figure on record. These deadly encounters are much more common here than in other Western countries, except for the United States. And investigations of police have long yielded few results. More than 1,100 people died in Canada in incidents with police since 2000 but there have been just 13 officers who stood trial for culpable homicide. All were acquitted of that charge.
In 2017 in Ontario, Court of Appeal Justice Michael Tulloch delivered a long review on bolstering police oversight. On the duty to co-operate, he called for legislation that includes “detailed guidance” on what evidence the police must produce and “require that the police co-operate immediately” with an independent investigation.
Such legislation would surely be challenged. It would need to adhere to the Charter’s provision of a reasonable limit that’s “demonstrably justified in a free and democratic society.” The court’s 1996 Oakes test is the multistep legal guide. First, there must be a “pressing and substantial” goal. Ensuring that police are accountable for their actions and maintaining public faith in the legal system surely qualifies. Then, under Oakes, the violation of a right must be as minimal as possible. That step could be problematic if a law stripped police officers of all ability to avoid self-incrimination. Finally, a law’s objective must be proportionate to any deleterious effects; the worse those effects, “the more important the objective must be,” the court ruled.
Public confidence in police, and more broadly in government, could hardly be more important. If police officers are above the law, if they are allowed to hide behind a blue wall of silence, that trust is undermined.