The Death of John Joseph Harper

The Aboriginal Justice Implementation Commission


Chapter 9

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The Investigation of the Harper Shooting
Special Investigation Procedures


Investigating Police Misconduct

The Investigation of the Harper Shooting TOP

Our examination of the Winnipeg Police Department’s investigation into the shooting of J.J. Harper has led us to two conclusions. First, police departments are inherently in a conflict of interest–both perceived and real–when called upon to investigate the shooting of a citizen by one of their members. The perceived conflict of interest arises because a member of the public reasonably might conclude that institutional interest might be placed ahead of the public interest in the course of the investigation.

This is so even if a decision is made to prosecute an officer. It could be concluded that a decision to prosecute arises from the department’s wish to maintain a certain image. The same allegation could be made if the decision is made not to prosecute. The department cannot win. Even if a prosecution results in a conviction, the department could be accused of having pursued the prosecution because it had no choice. On the other hand, if the investigation is conducted by someone free from those influences, then no conflict, real or perceived, exists.

Our second conclusion is that the Winnipeg Police Department was guided more by self-interest in the Harper investigation than by public interest. There were many errors and poor decisions. Supervision was not competent and evidence was mishandled. Harper’s death was not investigated in a thorough and independent fashion. This resulted in the failure of the subsequent inquest to examine and explain all the circumstances surrounding the death in a manner that the public could accept and respect.

Chief Herb Stephen testified that the City of Winnipeg Police Department did not consider bringing in an investigating team from outside the department to do the investigation. When questioned by Commission counsel at our hearings, he remained adamant in his opposition to the idea of an outside investigation:

Q Are there any circumstances in which you would consider it appropriate to have an external police force investigate alleged conduct of a member of your department?

A Mr. Schulman, I do not think that is necessary. I think that we can stand on our own record for the way we have handled investigations involving our own people over the years, serious crimes, minor crimes, crimes of every nature and we have investigated those by our own people and brought those to successful conclusions and convicted people in court.

Q But are there not circumstances in which it is apparent to you that there are members of the public who have a concern about the thoroughness of your department’s investigations?

A All I can say is I stand on our record. They may think that, but certainly if they look back, they will see that we have done things successfully ourselves....

I think we have done an adequate job, a great job in investigating our own people. It’s something we don’t want to do, but when it comes to our attention, we do it and we do it properly. (p. 3099—3100)

Despite the Chief’s confidence, the City of Winnipeg Police force has demonstrated to us that it was incapable of conducting a thorough and professional investigation in this case. Obviously, it was asking too much of this force to investigate a death involving one of its own officers. It also was asking too much of the public to believe that such an investigation would or could be independent or unbiased. An improved process needs to be put in place to ensure that deaths involving officers are investigated and handled in a thorough, independent manner which guarantees due process for officers and accountability to the public so that proper respect for the police function is not jeopardized.

Citizens in a democratic society have every right to expect that fatalities involving a police officer are investigated properly and thoroughly. They also are entitled to be able to lodge complaints concerning the actions of officers acting in an official capacity with an independent, effective, fair and open public-complaints body.

We have found that there is a growing demand in Canada and elsewhere for independent reviews of citizen fatalities involving police officers. We have found that in other jurisdictions various mechanisms have been put in place in response to this same concern, most recently in Ontario.

When questioned as to his knowledge of the work of other police departments, Chief Stephen was aware of only a few shooting cases where outside police investigators were called in. He was quick to point out that over the years there have been many situations in which police departments successfully conducted investigations of their own officers. While a police department may argue it is capable of conducting investigations of its own officers in a professional, independent manner, it simply is not capable of dispelling the perception of a conflict of interest. In such situations, the department must understand that the perception of conflict of interest should be enough to cause it to seek an external investigation.

We cannot see any reason for a police department to object to external investigations. Ideally, it should not matter who does the investigation–they should be able to find the same things. Nor do we think there is any reason to object when the result will be to enhance the department’s reputation for openness to review and sensitivity to public perceptions. In our view, when situations of a perceived conflict of interest arise, it is in the department’s best interests, and in the community’s best interests, for there to be an external investigation. TOP


Special Investigation Procedures TOP

During the course of our Inquiry, we became aware of a number of serious incidents involving police and Aboriginal people. These include the death of J.J. Harper, but also include the death of Floyd Head from Moose Lake, killed some years ago in an incident involving the RCMP; Jason Daniels, seriously injured in a shooting incident with the Brandon City Police; and Patrick Dan De La Ronde, seriously injured in a recent shooting incident with the City of Winnipeg Police.

In addition, there have been notorious incidents in other jurisdictions. In Toronto and Montreal there have been incidents of police shootings of black persons. In Vancouver there was an incident of police brutality that resulted in a consideration of it by the Supreme Court of Canada1 and recent cases of police brutality in the United States have caused that country to review all such allegations over the past several years.

It is vitally important for the good of our communities that the public has confidence in its police forces, and that good police officers not be tainted unfairly by misdeeds of other officers. For this reason, many jurisdictions are investigating ways to enhance the reputation of the police and restore public confidence by developing strong, effective, independent mechanisms by which to investigate complaints against the police.

In our general report, we discuss public complaint processes against the police. These complaints can include discriminating on the basis of race, failing to exercise restraint with a firearm, altering an official document, using excessive force, using abusive language, being discourteous or uncivil, or a range of other acts known as "disciplinary defaults" (these are set out in s. 29 of the Law Enforcement Review Act, cap. L75, C.C.S.M.). Here, we limit ourselves to a discussion of the independent investigation of serious incidents involving the police, particularly where potential criminal acts are alleged, or death or serious injury have resulted.

We believe recent developments in Ontario have much to recommend themselves for consideration in Manitoba. On December 31, 1990 Ontario proclaimed into effect its new Police Services Act. This Act is wide-ranging in its recommendations on policing principles, organization, monitoring, public complaints and special investigations. Throughout the Act, the importance of public input is stressed.

An important feature of the Act is the creation of a Special Investigative Unit to be called in when a serious incident involving the police arises. This unit reports directly to the Attorney General of Ontario. Police forces are required to give their full cooperation and assistance to this unit. The unit may commence investigations at the initiative of the director of the unit or the Attorney General. The unit may lay charges against police officers. The unit may not use an investigator who is or has been a member of the police force under investigation.

We recommend that:

  • The Minister of Justice establish a plan of action to deal with any incident where possible criminal acts are alleged against the police, or where a person dies or suffers serious injury in an incident involving a police officer.
  • This plan of action include either the creation of a standing special investigations unit or a plan to assemble quickly a special investigations team for a particular incident, able to take control of the investigation immediately following report of the incident. The unit or team should not include officers from the police department under investigation. The plan should include independent counsel to give advice concerning the laying of criminal charges. This counsel should not be a Crown attorney. The unit or team should report directly to the Minister of Justice.
  • The police forces in the province be required to provide all available assistance and cooperation to the special investigations team. TOP


1 O’Hara v. British Columbia, [1987] 2 S.C.R. 591

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