The Death of John Joseph Harper

The Aboriginal Justice Implementation Commission

Report of the Aboriginal Justice Inquiry of Manitoba

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THE INVESTIGATION

At the Scene

The Treatment of Cross
The Conduct of Constable Spryszak
The Conduct of Inspector Hrycyk
Was Cross Told to Portray the Shooting as an Accident?
Officers’ Notebooks

The Interrogation

Taking Cross’ Statement
Recording Interrogations
Inadequate Questioning of Witnesses
The Notification of the Family

The Handling of the Evidence at the Scene
The Later Handling of Evidence
The Chief’s Assessment of the Handling of the Evidence
Supervision of the Investigation
Conclusions

 

The Investigation TOP

Citizens must be confident that their police department will fully and objectively investigate the use of force or firearms, and disclose all relevant evidence to the proper authorities. It was suggested to us that the Winnipeg Police Department’s investigation of the shooting of J.J. Harper was handled in the same manner as any other homicide investigation. That was not the case.

In this chapter we will examine some of the specific issues relating to the quality of the investigation. Among the matters we will examine are the treatment received by Cross at the scene and during his interrogation, the conduct of certain supervising officers, and the handling and testing of key pieces of evidence in the case. TOP

At the Scene

The Treatment of Cross TOP

Officers at the scene asked Constable Cross what had happened, but they did not question him further. They permitted Cross to retain his revolver and to return it to his holster. Most failed to record accurately the comments he did make. When Constable Hodgins approached Cross she brushed off his clothing and asked him to sit in the car with her. She subsequently could not recall all he said and she also failed to record conversations accurately. Cross was permitted to discuss the shooting with other officers at the scene. There was no attempt to separate Cross from fellow officers.

Officers have been taught how to take and preserve statements and comments for later presentation in court. The officers at this scene did not follow those usual procedures. Even when senior officers arrived, Cross continued to receive special treatment and consideration. The actions of these supervising officers warrant special examination. TOP

The Conduct of Constable Spryszak TOP

Const. Glen Spryszak was a 15-year veteran of the Winnipeg Police Department and a former partner of Robert Cross. On the night of J.J. Harper’s death, he was performing the duties of an acting sergeant when he was assigned to go to the shooting scene as field supervisor. He was instructed to oversee the situation and to seize Cross’ firearm. Spryszak never before had acted as a supervisor in a shooting and before leaving the station he was reminded to seize the constable’s gun.

When he arrived at the scene at approximately 2:54 a.m., Spryszak saw Cross and Hodgins in a car with the youth, Allan. Constables Grant Eakin and Richard Poneira stood on the sidewalk next to the blood spots. Spryszak said Constables Danny Smyth, Randy Hampton and William Isaac were not there, and Douglas Hooper was just leaving.

When the first officers had arrived at the scene Cross had been holding his revolver in his hand. He then had put it back into his holster where it stayed until Spryszak asked him for it.

Spryszak testified that Cross took out his gun with two fingers on the rubber grip and handed it to him. Spryszak looked at it briefly, then put it into his own holster. He told us he saw blood on the left side and bottom of the grip, and a dry, whitish material about two inches long on the left side of the barrel. He later told Sergeant Parker that the barrel and grip were moist.

Spryszak testified that he knew what to do with the revolver, although he did not follow standard procedure on this occasion. He said that had it been a civilian’s gun he would have waited for an identification officer to seize the gun. He told us it was the job of the identification personnel to examine a scene and seize exhibits because they know the techniques of preserving evidence.

When Insp. Eric Hrycyk arrived, Spryszak removed the revolver from his own holster, with two fingers away from the blood spots, and opened the cylinder. With his hand around the butt, he examined the back of the cylinder to determine how many firing pin marks were on the ammunition. One pin mark was found on one round and that round had been lined up with the barrel. The firearm then was closed, putting the spent cartridge back in line with the barrel. Spryszak put it back into his holster. Spryszak suggested to us that the gun had not touched the sides of his holster. We find this difficult to believe.

Spryszak told us he then looked for somewhere to put the gun. After removing it from his holster again, he decided to place it on a ticket book in his car. He left it on the passenger seat until he arrived at the Public Safety Building, where he placed it on a table, undid a screw to get the serial number and turned it over to Const. William Kehler, the armaments officer.

When testifying before us, Spryszak could not recall what training in exhibit handling he had received. He told us he was not taught how to handle or transport a gun that was an exhibit. However, he could recall officers being told to treat evidence very carefully with a minimum of handling. He had taken the crime investigators’ course but could not recall specifics. He said there was no direction in the department’s procedures manual on how to pick up a gun but said it was common sense to touch only the rough part. It was pointed out to us that the necessity of preserving the condition of a firearm was part of the Sergeant 2 exam Spryszak had taken and passed. Spryszak said that he had not been instructed to seize Cross’ holster and did not even consider doing so, feeling it would be secure with Cross.

Spryszak also neglected to question Cross adequately. He admits that had Cross been a civilian he would not have instructed him to sit with Hodgins. Had it been a civilian shooting, he would have isolated Cross and would have written down what Cross said about the shooting incident. Spryszak did not think it important in this case to write down what Cross or anyone else said at the scene. He did tell us that he attempted to keep everyone’s conversation to a minimum as he was aware there would be an investigation.

He told Cross to sit in the car so there would not be any idle or undue conversation. Yet, he allowed Hodgins to sit with him. He then spoke to Eakin and Poneira, who told him of the chase and shooting, but he told us he could not recall that conversation.

When Inspector Hrycyk arrived several minutes later, he instructed Spryszak to take charge of the scene, to canvass the surrounding houses for witnesses and to tape the area to limit access to the scene. Spryszak told us he assisted Const. Craig Boan in taking photographs and blood samples. Spryszak told us that since he believed it was not his duty to examine the area, he did not do so and did not know if anyone else did. He was unaware that Harper’s glasses had been knocked off in the struggle and had not been found.

Spryszak’s canvass was inadequate. He reported going to only six houses. At four of these he got no answer. At one, the occupants were sleeping and had heard nothing, and at another, a woman told him that she had heard a banging on her house and had seen someone in her yard. He failed to indicate the need for further canvassing to superior officers.

Spryszak was not trained properly and was ill-equipped to be in charge of a fatal shooting scene. Some of the fault must lie with others for placing him in this position of responsibility on the night in question.

To summarize the deficiencies in his conduct:

Despite these errors, Inspector Hrycyk later reported to Chief Stephen that "all officers at the scene acted in a professional, competent manner."

It is our conclusion that Spryszak did not perform the duties of a supervisor in a competent manner. Some of that was due to his own poor judgment. However, much of the blame for these failings must rest with the police department and its procedures and training. TOP

The Conduct of Inspector Hrycyk TOP

Insp. Eric Hrycyk was in charge of all police officers and divisions in the City of Winnipeg Police Department during the early morning of March 9, 1988. As the senior officer in charge of the police department that evening, his responsibility was to remain at the Public Safety Building and monitor events of the night.

Hrycyk indicated that he was in the radio room at the Public Safety Building when the initial calls about the car chase came in and that he monitored what went on over the radio. After hearing about the shooting and the need for a street supervisor, Hrycyk decided to go to the scene. By the time he arrived, he was in possession of most of the facts. He arrived minutes after Spryszak, at approximately 3:02 a.m., and remained for about 20 minutes.

Seven officers were present when he arrived: Constables Graeme McGinnis, Brian Barker, Grant Eakin, Richard Poneira, Cross, Hodgins and Spryszak. Hrycyk spoke with all officers in one group, with the exception of Hodgins and Cross. Hodgins and Cross remained in or near their vehicle, while Hrycyk spoke with the others. Most of the information he derived from the group came from Eakin.

Hrycyk testified that he spoke with Spryszak, who opened his jacket to reveal Cross’ revolver. He stated that he told Spryszak to hold onto the gun and to give it to the armaments officer, Constable Kehler, later in the morning. He said the fact that Spryszak was carrying it in his holster caused him some concern, but he did not consider it important enough to mention. He did not direct Spryszak as to the proper method of handling a revolver in a shooting, nor did he instruct him to handle the revolver more carefully or in any other manner to prevent further mishandling. Hrycyk testified that it never dawned on him to seize Cross’ holster. He told us he never stated that the gun should be preserved for fingerprinting. He testified at the inquest that he did not think it advisable to have the gun or holster fingerprinted.

Hrycyk repeated in testimony essentially the same story related to us by Cross. Hrycyk was unable to state verbatim what Cross had said, but testified mainly from notes he made at the scene and later in his vehicle. Hrycyk admitted that he did not consider Cross a suspect with respect to any improper actions.

Hrycyk told Cross not to clean up and instructed Hodgins to drive to the Public Safety Building and wait in his office. He also instructed that Pruden and Allan be taken to the Public Safety Building.

Hrycyk told Eakin, Poneira and Spryszak to remain at the scene, to check the area for evidence and to point out everything to the Identification Unit upon its arrival. They were instructed to barrier-tape the scene and keep it secure. He instructed Spryszak to canvass houses on the south side of Logan Avenue, beginning with the houses directly across the street. He indicated that he told Spryszak to be sure to canvass the houses on Alexander Avenue which might have had a view of the scene. Hrycyk indicated in his evidence that he had assumed two officers would conduct the canvass, but that he gave no specific instructions to that effect. He said, "I assumed common sense would prevail on which houses." Hrycyk agreed on cross-examination that the canvass done by Spryszak was inadequate.

Hrycyk then left for the Health Sciences Centre, where he saw Constables Hooper and Smyth. He was informed that Harper had been declared dead at 3:23 and was given Harper’s identification. He instructed that Harper’s body be secured and his clothing seized. He also instructed both officers to make notes about events. Hrycyk indicated that he told Hooper and Smyth to notify the Harper family, but that he was unaware of what efforts they made to do that. He also was unaware that it was not until 9:30 that morning that the Harper family was notified by officers Allan Cameron and Bill Rautavuori.

Upon returning to the Public Safety Building, Hrycyk unlocked the detective office and had the patrol officers place their detainees, Pruden and the youth, in two separate offices. He spoke to Cross and Hodgins once again and advised them of Harper’s death. At that time, he again observed that Cross’ jacket was soiled and that he had blood on both pant legs. He noted that Cross’ left rubber boot was bloody and indicated that Cross pointed out blood spatters on his left leg underneath his pant leg from his socks to his knee. He indicated that he did not arrange for photographs to be taken but he later passed the information on to Staff Sgt. Angus Anderson of Crime Division. Hrycyk did not give instructions that Cross’ boot be examined for gunpowder residue, nor did he instruct fingernail scrapings to be done of either Cross or Harper.

Hrycyk notified Staff Sergeant Anderson, Sgt. Henry Williams and Const. Calvin Osborne of Crime Division, who then came to the Public Safety Building. Hrycyk indicated that they requested that Acting Insp. Kenneth Dowson also be called. Hrycyk next contacted the duty executive officer, Supt. McDougall Allen, and phoned Chief Herb Stephen. He also contacted the officer in charge of the Post Incident Trauma Unit.

Hrycyk briefed Staff Sgt. Norm Wickdahl (who had been called by Hodgins to act as adviser to Cross), Staff Sergeant Anderson and Superintendent Allen upon their arrival.

Although he stated in his special report that "all officers acted in a professional, competent manner," Hrycyk agreed that some officers had made bad decisions and that work was done incompetently.

In summary, the actions of Hrycyk in this investigation have caused us concern and warrant comment:

We recommend that:

Was Cross Told to Portray the Shooting as an Accident? TOP

Allan told the inquest that after Cross returned to the patrol car and spoke with Hodgins about the shooting, another, older officer pulled up alongside. Cross got out of the cruiser and went to speak with the officer. According to Allan’s testimony at the inquest, when Cross returned to the police car and opened the door, he heard this older officer say to Cross, "You just say that." Cross replied, "I will say that." At the Inquiry, Allan testified that he heard the older officer say to Cross, "Don’t say nothing."

Allan also said that someone at the scene told Cross to "say the gun went off accidentally." However, when Allan attempted to include this remark in his statement, it was greeted with disinterest or extreme carelessness by officers who interviewed him several days later at his home. They recorded his comment as "see the gun went off accidentally."

We are satisfied that Allan did hear police officers tell Cross to "say the gun went off accidentally" and to "say nothing."  TOP

Officers’ Notebooks TOP

The recording of events at the scene of the shooting of J.J. Harper was handled poorly by Winnipeg police officers. Notes were not taken properly at the scene. In some cases officers subsequently supplemented their notes after discussing events with others or listening to the recorded radio transmissions. Officers seem to have written their notes so as to best support Cross’ version of events and in at least one instance a police notebook subsequently was altered. There seems to have been little effort to record objectively what happened that night.

Constable Hodgins made notes about what the youth, Allan, said on a scratch pad rather than in her notebook. She told us that she had lost those notes and had no idea where they were. Further, Hodgins confirmed that the contents of her notebook were constructed later from other sources, such as the recorded radio transmissions and with the assistance of others, and not just from her own observations and recollection.

Const. Grant Eakin wrote some of his notes at the scene, discussed the incident with his partner, and finished his notes and special report later that morning. In attempting to explain the inconsistencies between his account and what he put into his report, he told us that it was because he made them at two different times, but could not say which he wrote first. Although it emerged that he and his partner worked on their notes at the scene for an hour, he still would not say his notes were written first, only that both were done before he went home. He did admit that there probably was discussion with others as his notes were being written.

Eakin’s partner, Const. Richard Poneira, admitted that he failed to record Cross’ account of the shooting. Even though he began his notes at the scene and completed them a short time after at the Public Safety Building, he said he could not recall verbatim conversations.

In his notes Poneira also recorded an inexplicable description of the victim. Although he had seen Harper up close while administering first aid to him, Poneira described him as being in his late 20s and wearing a black leather jacket, rather than in his 30s and wearing a black cloth jacket. He told us that he did not do so to corroborate Cross’ story and told us he had not been directed on how to make the notes.

Poneira could remember very little about events of that evening and almost nothing of any conversations that took place. We find it difficult to understand how an officer could ignore his training and proper procedures and fail to record an explanation of the events of a shooting death.

Const. William Isaac testified at the Inquiry that he had copied all his notes from his original notebook into a new one, making a number of changes and leaving out the reference to the handcuffing of Pruden. He told us he apparently prepared a second notebook on March 17, although he could not recall doing it and so could not say what his reasons were for doing this. He did tell us that he altered his notebooks after certain errors in his written reports were pointed out to him by a senior officer.

Isaac testified that he had given evidence at the inquest from a false set of notes. The most important piece of evidence which he changed was the reference to the radio report of the type of clothing being worn by Pruden. He had stated in his original set of notes that the radio report referred to the suspect’s jacket as being "grey," whereas in the revised set he had written that Pruden’s clothing was reported as "black." The difference is significant because Harper was wearing black clothing. The radio report we heard stated "dark clothing." Both Pruden and Harper arguably had dark clothing (Harper’s was black, Pruden’s was grey), but the discovery of what Isaac had done contributed to the persistent feeling that the police officers on duty that night had engaged in an effort to shade the evidence to favour Cross’ version.

Isaac agreed that leaving the entry as "grey" might have been detrimental to Cross’ position but denied any ulterior motivation. He remembered someone pointing out that he had made a mistake in his reports but could not recall who that was. We doubt his veracity on this point. We believe he knew and that he chose to protect that person. Such a sense of misplaced loyalty is unfortunate and is below the standard expected of police officers.

Isaac admitted he made a mistake in rewriting his entire notebook and making several changes to the contents. He stated that he should have noted any corrections at the end of his notebook with an arrow instead of rewriting his entire notebook. When he was asked initially to produce his notebook for the Inquiry in July 1989, he stated that he could not recall having rewritten his original notebook. As with all other officers involved in the case, Isaac did produce a notebook when subpoenaed to do so by the Inquiry, after the subpoena was confirmed by the Court of Appeal. However, he did not comply properly with the subpoena. The notebook which he produced for examination by Commission counsel under subpoena was the rewritten one and not the original. He also gave inaccurate evidence at the inquest when he stated in response to a question from Judge Enns that the notes he used to assist him in his testimony were made at the time or shortly after the events which they described. He told us he had only just discovered the first notebook a few days before appearing at the Inquiry and immediately brought it to the attention of his superior, and then to the attention of counsel for the police association, who advised Commission counsel.

Isaac told us that he had offered to resign because of his actions. He apologized for his mistake and for any embarrassment it may have caused. This officer was honest in bringing the matter to light and should be commended for doing so. On the other hand, what he did puts his testimony before us and before the inquest in doubt, and raises concerns as to the manner in which police officers are allowed to use their notebooks, both in the course of their work and in the course of giving evidence at trial.

In his testimony before us Chief Herb Stephen agreed that there was nothing to prevent officers from comparing notebooks and exchanging information about the description of the suspect.

Some broader questions arise from the Harper case about the use of officers’ notebooks in court. At present, officers are permitted to look at notes when giving evidence to refresh their memories, if judges are satisfied that the notes were made at the same time that events took place, or shortly thereafter. It is assumed by the court that notes taken about the time of an offence will record accurately what officers saw or heard. If notes are not made until some time later, officers may not be permitted to refer to them, and if they are permitted to refer to them, this might have an impact on the weight given to their evidence.

During the Inquiry we were dismayed to learn that many notes do not represent an officer’s own recorded memory of events. We were told that officers often talk to their partners to obtain or clarify information. They regularly check the record of radio communications to obtain times that various events happened or were reported. While this practice may improve the accuracy of an overall record, it also means that the notes do not represent an officer’s own recollection. The manner in which notes now are assembled is not "notes" in the accepted sense. It would appear to be the case that if two officers have a difference in recollection of what they saw or heard, one of them changes his or her notes so both sets of notes correspond, or at least do not conflict. This is a far cry from what we believe most judges think about how an officer’s notes are prepared.

Some surprising views emerged when we were considering the issue of notebooks. Apparently, the Winnipeg Police Association took the position that the notebooks are and remain the property of individual officers. The Chief of Police felt that the books are the property of the police department. We agree with the Chief. But we believe that despite whoever "owns" the books or the notes, procedures have to be put in place that will restore the confidence of the public and the judiciary in the integrity of notebooks and note-taking.

The Toronto Police Department employs much more stringent rules on the use of notebooks than its Winnipeg counterpart. Every notebook bears the officer’s name and badge number, the date the book was started and the date it was completed. Each notebook and all the pages in it are numbered.

When officers come on duty they pick up their notebooks from their pigeonholes along with their weapons. Notes that are made must be original and not transferred from other sources such as scratch pads. All entries into the notebooks must be in black pen. No erasures are allowed. If a mistake is made the officer must use one strikethrough line, initial the error and add the correction. No blank spaces, lines or pages are permitted. A notebook must be completed before a new one is started.

When officers go off duty they note the time in their books, sign the books and turn them in to the staff sergeant, who reviews them, countersigns them and returns them to the officers’ pigeonholes. All notebooks stay in the detachment where officers are stationed. If officers are transferred to another district, their notebooks go with them. Upon retirement the notebooks remain the property of the department.

We believe that similar policies on notebook management should be adopted in Manitoba. In our opinion the notes that are recorded should record only the individual recollection of each officer. Notes should be prepared independently. If only approximate times can be recorded, so be it. More specific times can be obtained from the print-out of radio communications if that is necessary, but they should not be entered in the notebook as part of an officer’s recollection. In the alternative, it would be proper for an officer to prepare his or her notes of what happened and append a note that he or she later examined the communications records, and then record in the notes what that examination revealed.

We Recommend that:

The Interrogation

Taking Cross’ Statement TOP

Sgt. Henry Williams is a member of the City of Winnipeg Police Department’s Crime Division, with over 20 years’ experience in investigating major crimes. Along with Const. Calvin Osborne, he was called upon to interview Cross at the Public Safety Building. When Williams arrived he found Cross waiting for him in the office of the duty inspector. Williams and Osborne questioned Cross in the presence of Staff Sgt. Norm Wickdahl, who was there on behalf of the Winnipeg Police Association to safeguard Cross’ interests.

Williams admitted that he "advised" Cross to begin to make notes of the incident in a new notebook. After interviewing Cross, Williams seized his jacket, pants and boots, but failed to have photographs taken of the blood stains and other marks that appeared on them. Nor did Williams order photos of the stains on Cross’ body, such as the blood on his left leg and what Williams felt were powder markings on his hands.

The questioning apparently began at around 5:20 a.m. and continued until shortly before 9:00 a.m., although Cross said that he thought the questioning started much earlier at about 3:30 and lasted three to five hours. He said that he felt under considerable pressure to recall matters of detail.

Cross said that he was asked, "Where were your hands? Where were you standing?" and so on. He was questioned repeatedly about matters of which he had only a vague recollection. It is clear that he could not recall minute details of what had occurred.

Yet, in the statement taken by Williams, many minor details are itemized. When questioned as to the manner in which Cross was questioned, Williams stated that Cross gave one long flowing narrative (as the statement itself appears to be) and further, that everything that was said to and by Cross was in the statement. Williams testified that he never questioned Cross, nor did he ask him for any further explanations. Cross himself contradicted Williams’ testimony. The statement is only six handwritten pages long, and if it had been recorded from Cross’ narrative it would not have taken three and one-half hours to record.

Cross testified that he attempted to give a simple explanation, which Williams found unacceptable. Cross said that Williams felt his explanation was not detailed sufficiently and demanded further elaboration.

The discrepancy between the evidence of Cross and Williams as to the taking of the statement caused us to consider carefully how to view its contents. It is significant that the statement provided great detail about an event that could have lasted only a few seconds. During the struggle Cross’ concern could not have been to record mentally what was occurring. It also is significant that nowhere in the statement did Cross indicate the same sense of responsibility which he had communicated earlier to Smyth and Hooper when he said, "He went for my gun and I shot him."

The statement is all the more remarkable because of its detailed story which places all blame on Harper and none on Cross. It is also a remarkable document because, while it flows like one long narrative, it could have resulted only from a lengthy conversation between Williams and Cross, the content of which was not disclosed to us. We believe that Sergeant Williams did not record all that was said and he did not question Cross with any degree of skepticism. We conclude that he was sympathetic to Cross’ situation from the outset and assisted Cross in describing a scenario which put Cross in the best possible light. Williams then put that scenario into writing. We find that Williams and other officers assisted Cross in carefully constructing his statement, ensuring that nothing was recorded that might jeopardize him in any way.

As Williams himself admitted, Cross was not handled as a suspect in a normal homicide investigation. We would have expected that the usual investigative procedures would have been followed. TOP

Recording Interrogations TOP

The manner in which Cross was interrogated demonstrates the need for improved procedures for taking statements. Given the seriousness of any police shooting, the entire interview should have been videotaped, or at least tape-recorded. We believe that better records must be kept of all that is said during such interrogations.

Chief Stephen told us that one of the four interview rooms at the Public Safety Building was being equipped with video-recording equipment. We commend this beginning and expect that this process now has been completed.

It is strange that the police have not made more use of the tape-recording of statements. Its use has been approved by the courts.1 In an unreported decision of the Manitoba Court of Queen’s Bench (May 10, 1978), R. v. Osborne, the City of Winnipeg was urged to tape statements, a suggestion which was reinforced by the recommendations of the Manitoba Police Commission, Frampton Inquiry Report, July 31, 1979. These suggestions obviously went unheeded.

The subject is dealt with in Salhany’s 4th edition of The Police Manual of Arrest & Interrogation. It states at p. 158—160:

In Ontario, the Halton police established a project between 1985 and 1987 involving the audio-visual interviewing of suspects and accused persons for all Criminal Code and federal statute offences, excluding drinking and driving offences. The videotaping removed the possibility of allegations of police misconduct in taking statements. It also showed that suspects were not reluctant to speak in front of a camera. More than two out of three people who had their statements videotaped made confessions or admissions.

The Law Reform Commission of Canada, in its review of the Halton project, found that videotaping helped police in gathering evidence and at the same time added to the protection of the rights of the accused.2

We recommend that:

Inadequate Questioning of Witnesses TOP

We have commented already on the failure of any of the investigators to question properly either Melvin Pruden or the youth on the night of the shooting. Both Pruden and Allan were as close as most officers when a shot was heard. The youth was later in the car with Cross and overheard an important conversation. We cannot imagine the police’s neglecting such witnesses in any other case.

The youth testified that he later told officers what he heard at the scene. He said they were not interested. Allan testified that in giving his statement he intended to say that someone said, "Say the gun went off accidentally." He explained that the police officer taking his statement apparently wrote down "see" instead of "say" so that his statement, which was introduced at the inquest and before us, read, "See the gun went off accidentally." This latter version makes no sense in this context, whereas the former does. The error made in taking the boy’s statement adds to our concern about how the investigation was conducted.

Kathryn Hodgins, Cross’ partner, was not questioned properly, either. She was not separated from Cross at the scene or for a long time afterward. The partners were permitted to discuss the incident prior to either of them making statements. Hodgins was not questioned as a partner of a civilian would have been if they were involved in a shooting.

None of the officers at the scene except for Cross was interviewed. Their written reports formed the basis of the investigators’ "investigation." TOP

The Notification of the Family TOP

The evidence shows that the Harper family was not notified of the shooting until about 9:30 a.m., about seven hours after it had occurred.

Inspector Hrycyk testified that when he arrived at the Health Sciences Centre he was informed that Harper had died at 3:23 a.m. Hrycyk then instructed Constables Hooper and Smyth to notify the Harper family. He told us that he was unaware of what efforts they made to do that. He also was unaware that it was not until 9:30 that Lois Harper was notified by officers Allan Cameron and Bill Rautavuori. The delay can be explained by Harper’s having identification which showed two different addresses. The police chose the wrong address in their attempt to trace Harper’s next-of-kin.

More disturbing than the delay in notifying Harper’s family is the insensitive manner in which that notification was handled. Judging by Cameron’s report (Exhibit 72), much of his time with Lois Harper and her sister was spent eliciting information about Harper’s drinking habits and the effects it had on his behaviour. TOP

The Handling of the Evidence TOP

The Winnipeg Police Department has specific regulations on the gathering of evidence:

EVIDENCE: GATHERING

Sgt. Robert Parker and Const. Craig Boan of the Identification Unit arrived at the scene at about 3:30 a.m. Boan dusted the stolen vehicle for fingerprints, conducted a search of the scene to collect physical evidence and photographed the area. He assisted Parker in measuring the area. They noted that the scene had been disturbed considerably by the police officers and ambulance attendants who had been there previously. On the authorization of Supt. McDougall Allen and Staff Sgt. Angus Anderson, who were both there, the Fire Department was called out to wash down the scene at approximately 6:00 a.m., before Parker and Boan left. This was before a complete examination had been conducted. Boan returned at 3:00 p.m. to take photographs under daylight conditions and to search for anything that may have been missed earlier.

One reason given by the police for clearing the scene so quickly was the possibility that children might see blood on the sidewalk. This was not, in our view, an adequate reason, considering that the scene was not searched thoroughly for evidence before it was washed down. There was no need to clear the scene so soon. Chief Herb Stephen testified that following this incident, departmental policy was changed so that shooting scenes will not be cleared until a daylight examination is completed.

The casual nature of the police search of the scene resulted in the failure to find Harper’s glasses. Darryl Sterdan, a reporter for the Winnipeg Sun, located them at about 1:00 p.m. on the day of the shooting. He found them in four pieces at the scene, on the south side of a tree and eight feet north of the blood spots on the sidewalk. Parker admits he must have missed the glasses in his examination of the scene. TOP

The Later Handling of Evidence TOP

There also were problems with the manner in which physical evidence was dealt with in subsequent stages of the investigation. Through a combination of poor decisions and improper handling of evidence, the Winnipeg police passed up opportunities to test Cross’ story properly. To understand the instances where this happened, we must review the sequence of the forensic investigation.

After J.J. Harper was declared dead, his body was placed in a sealed morgue locker at the Health Sciences Centre. Constables Smyth and Hooper retained the key to the locker and later turned it over to Sergeant Parker.

On the morning of March 9, Chief Medical Examiner Dr. Peter Markesteyn performed an autopsy. Parker, Boan and Const. Kerry Armit of the Winnipeg police, and Staff Sgt. Ken Derendorf and Bruce Kramarchuk of the RCMP also were in attendance. Boan took photographs of the body at the morgue and during the autopsy. Markesteyn, Derendorf and Parker discussed conducting a test to determine whether some blue marks on Harper’s hands indicated the presence of gunshot residue. According to Parker, Derendorf informed them that use of the test had been suspended. It was suggested that a portion of tissue be excised so that it could be analysed later if a suitable test became available. However, after some discussion Markesteyn decided not to take the tissue sample.

Although hair samples were taken from both Harper and Cross, Parker felt that it was unnecessary to take fingernail scrapings from either man. Boan testified that for some time it had not been standard procedure to do fingernail scrapings in such circumstances. He said the Identification Unit usually only examines nails in cases of sexual assault or in cases in which one party has been scratched. Fingernail scrapings and tests of substances on the hands of Harper and Cross would, it seems to us, have been equally or more important in this case.

Little conclusive information was gained from the examination of Harper’s clothing. Constable Smyth received Harper’s boots, pants and underwear while waiting in the "police room" at the Health Sciences Centre. The staff of the emergency ward later gave him Harper’s jacket, shirt and the rest of his personal belongings, all stuffed into one bag. He turned these items over to Const. Kerry Armit at approximately 7:30 that morning and together they went through them. Boan photographed Harper’s clothing, although not his boots. He described the shirt as having a discoloured grey area, which appeared to have powder adhering to it below the bullet hole in the front left side.

Bruce Kramarchuk of the Firearms Section of the Winnipeg RCMP forensics lab tested Harper’s jacket and shirt to determine the distance from which the fatal bullet was fired. Kramarchuk testified at the inquest that he believed that the muzzle of the revolver was less than an inch away from Harper’s shirt (or chest) when it was fired, and that most of the residue from the bullet went through the shirt and into an area between the shirt and chest, with additional residue being left on the outside of Harper’s clothing. He felt the blood covered any further residue.

Commission counsel asked the RCMP Central Forensic Laboratory in Ottawa to test Harper’s clothing for gunshot residue. However, RCMP technician Murray Smith testified that he was unable to perform the analysis because Harper’s jacket and shirt had too much blood on them.

The collection and preservation of Cross’ clothing was done in a haphazard and unprofessional manner. It was not until March 10 that Boan was instructed to photograph Cross’ jacket, after Parker noticed it hanging at the Public Safety Building.

Boan described Cross’ clothing as having blood below the right jacket pocket, and on the bottom right sleeve. There was also blood below the right knee on the front of his pants. The top left shoulder of the jacket and seat of the pants both were covered in dirt. Armit testified at the inquest that he observed dirt below the right knee and along the right side of the knee area. Armit also described white-coloured stains, possibly salt, above the knee of the right pant leg. He also noticed the same type of staining on the right leg between the knee and the thigh area, and on the left leg, on the left hip and rear area. On the left boot Armit observed a large bloodstained area from the toe around to the right inside area of the ankle, and general staining. He said that both boots had fine sand adhering to the soles.

We find it odd that Parker and the senior investigating officers failed to give instructions to have Cross’ boot examined for gunpowder residue in light of Cross’ version of events. If anything, powder residue on his boot would support his statement that his foot was against Harper’s chest when the gun fired.

Murray Smith of the RCMP also was requested by Commission counsel to test Cross’ pants and boots for gunshot residue. Because Cross’ pants and boots were packed badly, having been thrown together in one bag, Smith was reluctant to test the clothing. He was concerned that residue might have been transferred from one leg to the other. When this did not appear to be the case, he concluded that because of the hard impact of residue onto the pants, it was not easily rubbed off. His examination indicated a close firing range of less than three feet. The residue also indicated that the left leg and foot were exposed to a muzzle blast or barrel cylinder gap blast of the revolver. Smith’s testing served to substantiate Cross’ description of having his foot pushing up against Harper’s chest at the time the revolver was fired.

Cross’ service revolver should have been a key piece of evidence in the investigation of the shooting. According to Cross, Harper had hold of the gun’s barrel and was trying to wrest control of the weapon away from him. Obviously, any information that could be gleaned from examining the gun would have been important in evaluating Cross’ account of events.

Unfortunately, as we already have seen, the gun was mishandled badly by Spryszak at the scene of the shooting. It is, of course, impossible to know what fingerprint or other evidence would have been found if the gun had been handled properly, but police decided at an early stage not to even try to fingerprint it.

It was Sgt. Robert Parker of the Identification Unit who made the decision at the scene that the revolver would not be fingerprinted. He told us:

Parker also did nothing to investigate the blood and water marks on the gun, and did not request that the revolver be photographed. He told us that part of the reason for his decision not to fingerprint the gun lay in Spryszak’s description of how he had handled it. Parker felt, because of that, there was little likelihood of finding meaningful prints on the gun. It is noteworthy, we believe, that this rationale never was related to Judge Enns during the inquest. Parker used it for the first time when he testified before us. At the inquest, Parker simply said that the decision not to fingerprint the gun was made because in his view any evidence of fingerprints on the gun would have been inconclusive. Clearly, that rationale was incorrect.

Parker further related that, in consultation with his superior, Sergeant Bellingham, he decided that a range determination test should be done on Cross’ revolver instead of fingerprinting. This involved, among other things, he said, examining the inside of the revolver’s muzzle for clothing fragments as well as firing the weapon and observing the impact pattern of the powder and blast. The test was to be conducted at the Winnipeg RCMP forensic lab. It was felt that the range determination test was more important than fingerprinting the weapon and it was believed that doing the range test would preclude checking for prints.

Parker said,

Parker said that fingerprinting would have limited the potential for range determination testing by destroying residues and powders inside the barrel of the weapon. Parker said he received no instructions not to print the gun, that it was up to him. He stated, "I’ll take full responsibility for not having the gun printed."

We note at this point that when the gun was sent for the range determination test the next day, no request was made by Parker to have the inside of the barrel checked for clothing fibres. We think that such a request would have been made if he thought it so significant. Technicians at the RCMP lab apparently just test-fired the gun to determine the impact pattern of the barrel blast. From that, the RCMP apparently were able to conclude how far the gun barrel was away from the point of entry of the bullet. Faced with that evidence, Parker admitted to us that both the range determination test and the fingerprinting of the gun could have been carried out.

Constable Boan testified that he had thought that it would have been helpful to conduct a fingerprint examination of the revolver to determine whether or not Harper’s fingerprints appeared on it. Parker ordered him not to conduct such an examination. Boan stated he believed that Parker had done so after consulting with other officers and that, "what superior officers decide, will be done."

One week later on March 16, Boan was, in fact, directed to fingerprint the revolver and did so at the RCMP lab. Only one identifiable print was found, that of an RCMP officer who had inspected the gun.

Parker ended his testimony to us by saying:

We believe that it was a serious mistake not to fingerprint the gun. From the evidence before us, we are convinced that fingerprinting and range determination testing both could have been undertaken. Even if a choice did have to be made, the wrong test was chosen. It was more important to determine if there were fingerprints on the revolver.

We recognize that even if an early decision to fingerprint the weapon had been made, the results might not have disclosed any fingerprints because of the way in which the gun had been handled. Nonetheless, it should have been done. Boan testified that, according to department policy, weapons discharged at a shooting scene usually would be handled carefully, photographed at the scene, unloaded and placed in a paper bag or cardboard box for preservation until a decision whether to print was made. Cross’ revolver, however, was handled excessively, holstered and removed at least three times, and later placed in a plastic exhibit bag, which Boan said could have smudged fingerprints or rubbed them off entirely. The decision not to fingerprint the gun clearly prevented anyone from knowing whether there were fingerprints on it, and if so, whose they were and where they were situated.

The same is true of the handling of Cross’ holster. Sergeant Parker suggested that it was the interviewing officers, Williams and Osborne, who were responsible for seizing Cross’ holster and deciding whether it would be fingerprinted. Parker admitted that he did not even consider having the holster examined. Neither did he request that the holster be checked for fingerprints. He did acknowledge discussing the mechanical examination of the holster with the firearms section, although he could not recall any discussion as to fingerprinting. He testified at the inquest that he had no personal knowledge as to the location of the holster and that he did not ever suggest that the holster should be fingerprinted.

Spryszak agreed that in a normal criminal investigation of a struggle involving a holstered gun, it was possible that he would seize the holster for fingerprinting. He said, however, that regulations under which he was operating at the time, concerning an officer involved in a shooting, required only that the gun be seized. He testified that he did not ask how the gun came out of Cross’ holster. He reluctantly accepted that he should have considered the possibility that the holster be fingerprinted. Hrycyk also told us that he did not consider Cross a suspect in any wrongdoing and that it never dawned on him to seize the holster. We conclude that it was negligent not to have seized, protected and examined the holster and the gun for fingerprints. When he observed how Spryszak was handling the revolver, Hrycyk should have taken charge of it, holster and all, to preserve it for analysis.

Parker was not the only person responsible for the decision to forgo fingerprinting the gun and holster. Constable Boan suggested to us that the decision was made by more senior officers. We gained the impression that Parker sought direction from superior officers about fingerprinting. While Parker readily admitted that he spoke to his superior, Sergeant Bellingham, about the matter, we find it difficult to believe that investigators from Crime Division were not consulted, as well. Clearly, the matter was considered sufficiently important to have been discussed, according to Boan’s testimony, "several times" that day. While we are unable to say with any degree of certainty who participated in those discussions, it is clear that the decision not to fingerprint the gun and holster precluded finding answers either to support or refute Cross’ version of events.

We recommend that:

The Chief’s Assessment of the Handling of the Evidence TOP

We are unimpressed with the manner in which the evidence in this case was dealt with. We believe that it was casual and negligent, and served to obscure rather than to clarify the facts of the matter.

Police Chief Herb Stephen, however, did not share our concern about the gathering of the evidence. Stephen felt that the Identification Unit had done a thorough job, with the exception of the failure to find Harper’s glasses. The Chief excused that oversight by the investigators by saying, "That was an unfortunate thing, [but] ... they’re not really necessary for the investigation...." He maintained that he still had confidence in the officers but that "they [the glasses] shouldn’t have been missed." As a result of the officers’ failing to find the glasses, new procedures subsequently were implemented, requiring preservation of the scene until after daybreak.

Stephen said that he was not involved in decision making regarding fingerprints or fingernail scrapings, since it was up to investigators to deal with those matters, but he agreed that possibly it would have been good police work to have examined them. He agreed that there might have been fibres under fingernails after two men fought over a gun. The Chief had no conversation with Parker about why he did not print the gun or take fingernail scrapings.

The Chief disagreed with Sergeant Zacharias’ comment on the handling of an officer’s gun in a civilian shooting. Stephen stated that he felt it was not necessary to remove it from the officer’s possession until the officer arrived at the station and was out of view of the public. Stephen felt that until then the safest place for the revolver would be snapped in the officer’s holster.

It was the opinion of the Chief that in none of the perceived mistakes in the handling of the evidence would a difference in handling have changed the outcome of the investigation. He felt that matters would not have been changed, even if a fingerprint had been found on the gun. Apparently, some senior members of the department disagreed with the Chief’s conclusion about the effectiveness of the handling of the evidence. Acting Inspector Dowson wrote to Stephen on May 2:

It is disturbing that the Chief of Police would refuse to acknowledge that the gun should have been checked for fingerprints. While it is fine for the Chief to support his staff, this support cannot be unconditional. Sometimes mistakes can happen, and they certainly did in this case. We would have thought the Chief would admit to them willingly. TOP

Supervision of the Investigation TOP

In attempting to untangle the threads which form the cloth of the Harper investigation, a recurring question arises: Who was ultimately responsible for the investigation? The answer is more difficult to ascertain than we would have expected from an organization as hierarchical as the Winnipeg Police Department. What is clear is that the supervision was inadequate.

Const. Kathryn Hodgins, as the senior constable, should have taken charge of the scene, but did not. The first officer to take charge was Spryszak who, aside from seizing Cross’ revolver, provided very little in the way of supervision. Next came Inspector Hrycyk, who was in charge of all police officers and divisions in the city on the morning of the shooting.

Hrycyk testified at the inquest that although he was in charge at the scene and instructed officers what to do, his "rule in an incident like this is not to be an investigator ... it’s to allocate resources of the appropriate people at the scene, let the investigators investigate the incident."

At 4:00 a.m. Hrycyk notified Staff Sgt. Angus Anderson, Sgt. Henry Williams and Const. Calvin Osborne of Crime Division. Acting Insp. Kenneth Dowson, who was in charge of Crime Division, also was notified, as was Sergeant Parker of the Identification Unit, who in turn called Constable Boan to assist him. Hrycyk also called Supt. McDougall Allen, the duty executive officer who went to the scene at 5:45.

At 5:00 a.m. Hrycyk phoned Chief Herb Stephen and told him of the shooting and of the officers who had been called out. The Chief told Hrycyk to call him back if he was needed, otherwise he would be in at 8:00.

Although it seems it was Acting Insp. Kenneth Dowson who may have been ultimately responsible for Crime Division’s investigation of the shooting, it was Staff Sgt. Angus Anderson who actually went to the scene that morning, arriving at 5:50.

There was some confusion in the evidence as to the role of Inspector Dowson. Various witnesses described Dowson as the officer in charge of the investigation. Sergeant Williams, who interrogated Cross and took his statement, said that Dowson was in charge. Stephen testified that Dowson was the officer in charge of the case, as did Inspector Hrycyk.

When Crown attorney William Morton asked for the services of a City of Winnipeg police officer to assist him at the inquest, the department assigned Dowson along with Acting Insp. Rex Keatinge.

On the morning when Inspector Dowson was scheduled to appear before the Inquiry, tragically, he took his own life. An inquest with respect to his death has been conducted by Provincial Court Judge Charles Rubin. At the time of this writing, Judge Rubin has not yet issued his report. We do not wish to engage in any discussion of the events leading up to the death of Inspector Dowson, and will refrain from expressing any opinion or conclusion as to that aspect of the Harper matter. The review by Judge Rubin will, we are sure, properly address that tragic turn of events.

As the officer whom others believed was in charge of the investigation into the death of J.J. Harper, it is possible that Dowson could have shed considerable light upon several curious aspects of the investigation. We were compelled to proceed without having heard from him, but we are satisfied that the lack of his direct testimony does not preclude us from reaching certain conclusions from all the other available evidence as to what the department did and why.

It may well be that Inspector Dowson was nominally in charge of the investigation, but lines of supervision and communication appear to have been so ineffective that no one actually took responsibility for determining all the facts of this case.

"Ultimately I am the man in charge. The buck stops with me." Those are the words of the man who has the final responsibility for the Winnipeg Police Department. Herb Stephen has been Police Chief since April 1984 and when he testified before us he had been a member of the Winnipeg police force for 33 years, mainly in the Crime Division.

The Chief admitted to us that the investigation did not appear to have been conducted with any degree of skepticism. He told us that this was not one of his department’s better investigations, and it was not representative of his department’s usual standard of criminal investigation.

While Chief Stephen was kept informed of the progress of the investigation from the time he was first called by Hrycyk at 5:00 a.m. on the morning of the shooting, he admitted that he never gave direction to any of the investigators on the case. More importantly, he was unable to shed any light on the question of who had made or had failed to make important decisions during the investigation. Despite what must have been obvious problems right from the outset, the Chief did not order a complete review–either internally or externally–of those decisions.

Despite Chief Stephen’s apparent willingness to take ultimate responsibility, he did not appear to exercise any supervision over the investigation. It was the Chief’s responsibility to see that an independent investigative approach was taken by his staff. He did not assume this responsibility. He did not even recognize there were serious deficiencies in the way the investigation was conducted. It is he who ultimately must be held accountable for the breakdown in standards and supervision which marked this investigation. TOP

Conclusions TOP

It is our conclusion that Cross was accorded special consideration by fellow officers at every stage of the investigation. We can only conclude that this investigation was handled as though everything had occurred as Cross stated, and that the shooting "investigation" was done merely to corroborate and reinforce Cross’ story. Both at the scene of the shooting and during the subsequent interrogation, much more attention was given to protecting Cross than was devoted to uncovering the facts of the case.

This was not an independent professional investigation. Those involved in all parts of this investigation were guided, at least to some extent, by the corporate, institutional goal of self-preservation which functioned to reach a conclusion that Cross, and therefore the department, had done no wrong. TOP

1 R. v. Colpitts, [1966] 47 C.R. 175 (S.C. C.).
2 Joyce Miller, "The audio-visual taping of police interviews with suspects and accused persons by Halton Regional Police Force: an evaluation " (Ottawa: Law Reform Commission of Canada, 1988).

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