Bathurst police shooting hearing to continue, arbitrator rules

The arbitration hearingfor two Bathurst officers involved in the fatal shooting of Michel Vienneau almost five years agowill continue.

Arbitrator Jol Michaud's14-page decision released Monday is not a final ruling. It was required as a procedural step to decide if there was enough evidence presented for the hearing to move to a second stage, where the officers can callevidence and potentially testify next month.

The hearing arose after the shooting death of Michel Vienneau at the Bathurst train station on Jan. 12, 2015. Police were waiting for himbased on Crime Stoppers tips that the 51-year-old Tracadie man was trafficking drugs. The tips were false.

A complaint filed by the Bathurst police chief with the New Brunswick Police Commission led to the hearing that began Oct. 16 and heard from 11 witnesses.

Bathurst Police Force constables Mathieu Boudreau and Patrick Bulger each face five counts of violating a code of conduct: that they didn't properly use and carry a firearm,abused authority,were oppressive or abusive to a person, neglected their duty, and acted in a discreditable manner.

Boudreau and Bulgerdeniedthe allegations. The chief has recommended they be fired.

The final witness called by the police chief testified Oct. 23. Legislation sets out thatthe arbitrator hearing the case,Michaud, must decide if there's a "prima facie" case after the chief finishes calling evidence.

Essentially, Michaud had to decide not whether he believed the evidence, but"whether there is any evidence, if left uncontradicted, to satisfy the reasonable person."The analysis did not assess the credibility of that evidence at this stage.

Case law says the arbitrator at this stage had to assume theevidence to be true and assign the most favourable meaning to anyambiguous statements.The written decision called it an uneasy task as much of the evidence the chief called is quite favourable to the officers.

Michaud wrote that the testimony of other police officers involved in intercepting Vienneau that day and a subsequent RCMP investigation of the shooting all suggest Boudreau and Bulger'sactions "were beyond reproach."

However, he wrote thateven if this evidence potentially leads to an ultimate dismissal of the code of conduct charges, itcan't justify dismissing the charges at this point as it would require assessing credibility.

Michaud said the prima facie case that they violated the code of conduct was largely established by testimony from Annick Basque, Gerald Jean and Wayne Coster.

He summarized various points that met the low threshold to support aprima facie case, though wrote some of this evidence was significantly weakened on cross-examination or should be disregarded for being at odds with the versions offered by other witnesses.

Basile Chiasson, the lawyer for the police chief, declined to comment.

T.J. Burke, the lawyer for Boudreau, said in an interview Monday he expects his client will testify when the hearing resumes on Nov. 4.

"He will need to to explain what happened that day, why he went from the police department to the train station, he'll have to explain all of the objective and subjective elements in terms of the investigative tips whythey were on at the train station and why, ultimately, he had discharged this firearm in an effort to save his partner's life," Burke said.

Brian Munro, a lawyer representing Bulger, did not return a request for comment.

Lawyers have set aside Nov. 22 if a second day for testimonyis required.

After the officers finish calling evidence, both sides would present final arguments. It's unclear what day that may occur. Then Michaud would issue a final decision.

Basque, Vienneau's fiance, was in the car with him when he was shot.

She testified they had returned from a weekend trip to Montreal to watch a hockey game. When he began backing out of the train station parking lot, she said a car was next to Vienneau's with two men arguing. She said the carmoved to block Vienneau's car and she saw the passenger jump out, slip and fall before standing up with a gun.

She testified she didn't think Bulger and Boudreau were police officers, instead wondering if they were terrorists, or "druggies." She said Vienneau steered the car to avoid them, while he pushed her head under the dash.

She testified she didn't hear them identify themselves as police and did not see flashing police lights on their unmarked car.

An RCMP report that was entered as evidence found Vienneau "purposely hit" Bulger with his car, though he may not have known he was a police officer. Boudreau then fired four times, striking Vienneau twice.

A use of force analysis included with the RCMP report concluded the shooting was justified as Boudreau sought to save his partner's life.

An investigation after the shooting byRCMPfound no evidence Vienneau was trafficking drugs or had any criminal links.