N.B. RCMP decided not to investigate use of force by prison staff in inmate death

One day after the death of inmate Matthew Hines, the New Brunswick RCMP's major crime unit decided not to investigate the use of force by correctional officerswho pepper sprayed Hines at least four times at close range inside Dorchester Penitentiary.

The RCMP were called to investigate Hines's death on May 27, 2015, but soon learnedlearned Correctional Service Canada, or CSC, "would be conducting a review with several objectives, including whether appropriate force was used according to CSC policy."

That's when a senior officer with the RCMP"specifically directed [the major crime unit] to continue to assist the Coroner under the Coroner's Act in determining the cause of death, but not to become involved in the use of force investigation."

The decisionleft police investigators in New Brunswick waiting for Correctional Service Canada to investigate its own staff to determine whether they used excessive force in relation to Hines's death.

That's according to records obtained by CBC News through access to information, including handwritten officer notes, investigation reports and briefing notes, which offer a peek inside the New Brunswick RCMP's investigation into the 33-year-old's death.

No one from the New Brunswick RCMP was made available to do an interview about the records.

In an emailed statement, RCMP spokesperson Sgt. Jean-Franois Martel defended the police force but didn't address why the New Brunswick major crime unit decided not to investigate the use of force.

"New Brunswick's municipal police forces frequently request the RCMP's guidance and advice on their own investigations, which speaks to the expertise and professionalism of our Major Crime Unit," Martel wrote.

When asked about the RCMP's decision not to investigate the use of force,a spokesperson with the correctional service said it's "not involved in RCMP decisions whether or not to investigate an incident that happens in a Canadian penitentiary."

No one from Correctional ServiceCanada, or CSC, was made available for an interview.

"The RCMP is an independent organization that makes those determinations on its own," spokesperson Marie Pier Lcuyerwrote in an emailed statement.

"Likewise, CSC incident investigations are independent and internal to the service, andaim to identify any compliance issues, policy gaps and best practices, and issue recommendations to prevent similar incidents [from]occurring in the future."

'How can you investigate yourself?'

Hines's sister, Wendy Gillis, told CBC News she was"very disappointed" to learn the new details about the New Brunswick RCMP's investigation.

She said the police agency should have been the one to investigate the use of force, rather than Correctional Service Canada.

"How can you investigate yourself, type of thing?" Gillis said. "That's not fair at all."

The blasts of pepper spray came while Hines, who was incarcerated at the prison, was handcuffed and restrained. An autopsy ultimately linked the Cape Breton man's death to the pepper spray.

A year after Hines's death, CBC News reported on the results of an internal Correctional Service Canada review into what happened. It found correctional staff used "inappropriate" force on Hines.

A day after the story aired, the Mounties requested an updated internal briefing note on the status of their investigation into Hines's death.

The criminal probe was then placed under review, the records show, and ultimately transferred to Nova Scotia RCMP for a new investigation.

In 2018, after Nova Scotia RCMP took over the investigation, two correctional officers were charged with manslaughter and criminal negligence causing Hines's death, but a judge later ruled they would not stand trial on the charges.

• Prosecutors won't pursue further legal action in prisoner Matthew Hines's death

"Although the evidence shows Mr. Hines died because of the [pepper] spray, that, in and of itself, is not conclusive evidence that using it constituted conduct that was objectively dangerous or ran an obvious and serious risk to his life," the decision says.

'Please, I'm begging you'

Hines came to correctional officers' attention on the night of May 26, 2015, when he was acting in anunusual way and refused to return to his cell at Dorchester Penitentiary.

After he was pepper sprayed, officers escorted Hines to a decontamination shower cell. His shirt was pulled over his head and his hands were cuffed behind his back when he was sent into the shower to wash off.

"Please, I'm begging you!" Hines yelled over and over again.

Lying on that shower floor would have felt like the torture technique waterboarding, according to a 2017 report by the federal correctional investigator.

Soon after, Hines went into medical distress and had difficulty breathing. He was taken to a health-care wing but did not receive medical treatment from a nurse on duty, according to an investigation by Correctional Service Canada. He died in hospital shortly after midnight on May 27, 2015.

The police investigation began immediately after Hines's death, but the New Brunswick RCMP's major crime unit did not examine a key element of what happened that night.

On May 28, 2015, one day after Hines's death, "it was determined that 'J' Division MCU[Major Crime Unit]would investigate the cause of death and Correctional Service Canada (CSC) would investigate the use of force," according to a 2016 briefing note to the RCMP commissioner. J Division is another name for New Brunswick RCMP.

Missing copy of key report

The records show Hines's cause of death wasn't provided to the RCMP until May 18, 2016 nearly a year afterhe died.

In an email to three colleagues, Supt. Rick Shaw, the officer in charge of operational support services for New Brunswick RCMP at the time, predicted the new information "will likely attract media attention for both CSC and RCMP."

In July 2016, New Brunswick RCMP's major crime unit learned through Hines's family that Correctional Service Canada's investigation"indicated there was improper use of force."

• What Correctional Service Canada didn't want the Hines family to know

But by late August, when CBC News detailed the findings of that report, the major crime unitstill didn't have a copy of it.

Const. Pierre J. Audoux, who investigated Hines's death with themajor crime unit in the province's southeastern region, wrote in his notes that he saw a page of the report while watching Radio-Canada's Le TljournalAcadie.

A briefing note to the commissioner about CBC's reporting said the major crime unit would be making "the proper judicial authorizations to obtain the CSC report to determine if a criminal offence has occurred."

Investigation transferred out of province

Four days after CBC's story, Audoux was called into the office from time off to prepare a copy of his investigation for RCMP's national headquarters to review.

That review was conducted by Nova Scotia RCMP Insp. Lynn Young and resulted in Nova Scotia's major crime unit taking over the investigation.

"Upon review of a small portion of the investigation, Insp. Young made the recommendation that the review be halted and a full new investigation commence due to various factors that were laid out in a memo to the commanding officer of 'J' Division," an October 2016 briefing note says.

It's not clear what factors led to a new investigation, as the information is redacted from the copy of the memo given to CBC News by the RCMP.

In his statement, the RCMP's Marteldid not specify what the review of the New Brunswick investigation found. He said the police force continually assesses "supervision, investigative performance and service delivery."

"This helps identify outdated policies and procedures, or instances when procedures are followed but were not properly documented," he wrote.

"In addition to diligently seeking independent reviews of serious incidents involving our members to ensure accountability and transparency, we also occasionally request file reviews from other jurisdictions to ensure our high standards are met."

Hines's sister said she's grateful the Nova Scotia RCMP took over the investigation"because if not, we wouldn't have gotten as far as we did."

Gillis, along with the rest of Hines's tight-knit Cape Breton family, feel they still haven't seen justice for their brother and son. They've remembered him as someone who had a kind heart and made friends easily.

"We're just very disappointed in the justice system and it's I don't know what else to say," Gillis said.

"They just take care of each other. It's just very disappointing."