Judge halts closed hearing in Thunder Bay police disciplinary process around Stacy DeBungee's death

An Ontario Superior Court judge says the process to decide whether three Thunder Bay police officers will face a disciplinary hearing should be transparent amid accusations of racism in their investigation of the death of a Rainy RiverFirst Nations man.

On Thursday, Justice Helen Pierce granted a stay requested by CBCand the family and community of Stacy DeBungeeto stop a meeting convened by a retired judge acting on behalf of the Thunder Bay Police Services Boardfrom proceeding, because it was going to be closed to the public.Instead, hisdecision to hold it in privatewill be reviewed in court in December.

"In my view, on the facts of this case, it is important for the court to consider the extent to which the public can expect openness in administrative decision-making," Pierce wrote in her decision. "Because of the complaint underlying this process that policing practices related to Indigenous citizens in Thunder Bay are racist it is even more critical that every step in the complaint procedure be dealt with transparently."

Last March, CBC's The Fifth Estate reported that Ontario's Office of the Independent Police Review Director (OIPRD) found "neglect of duty" in its investigation of a complaint launched by DeBungee'sfamily and Rainy River First Nations, after police declared the 41-year-old's death non-suspicious within hours of finding his body in Thunder Bay's McIntyre River in the fall of 2015.

The OIPRD's report also concluded that racism may have influenced the police officers involved to "prematurely" conclude "that DeBungee rolled into the river and drowned," rather than investigating a series of potential leads that could suggest homicide.

The Thunder Bay Police Service is required to hold disciplinary hearings looking at the conduct of the three officers named in the OIPRDreport, but the province's Police Services Act requires that they be served notices of hearing within six months a timeframe that has long passed due to the length of the OIPRD's investigation.

To proceed with a disciplinary hearing after six months, the Thunder Bay Police Services Board must grant an extension, deeming the delay reasonable. Retired judge Lee Ferrier, who was appointed to act on behalf of the board in this case,called for ahearing in September to reviewsubmissions to help him decide whether or not to grant the extension and allow a disciplinary hearing to proceed

But Ferrier determined that it should happen in-camera (without public access). If he decides to grant the extension, the disciplinary hearing would happen in public, which is normal procedure to ensure transparency under the Police Services Act.

But if he decides that that amount of time that has passed is unreasonable and that the officers, as a result, should not face a disciplinary hearing, that would be the end of the case.

That latter scenario prompted lawyers for CBCand for DeBungee's family and Rainy River First Nations to ask the court to stay the extension hearing and review Ferrier's decision.

"I'm in disbelief," said Rainy River First Nations Chief Robin McGinnison Sept. 25, when the request was heard in Thunder Bay's Ontario Superior Court of Justice.

"The fact that they're trying to make it aprivate hearing ...kinda goes against the whole thing we've been trying to do and make it public about the things that are happening here with the Thunder Bay Police Service, right?"

Julian Falconer, the lawyer representing DeBungee'sfamily, as well as Rainy River First Nations, argued that even though police services boards may normally makedecisions about whether to grant extensions in private, the "stakes" in this case are too high.

"The gravity of a decision by Mr. Ferrier shutting down the process, were it to happen in secret, would do untold damage to an already very difficult and divisive situation," Falconersaid. "I can only describe it as gas on the fire."

But lawyers for the Thunder Bay Police Service, as well as the lawyer representing the three officers in question, argued that Ferriermade the legally correct decision to protect theofficers'right to confidentiality up until they are served notice, as perthe Police Services Act. That includes the discussion around whether or not the extension will be granted for the officers to be served that notice. The officers should not be stigmatizedbefore they've even been charged with anything, the lawyers said.

In her ruling, Justice Pierce dismissed that argument, noting that the OIPRDreport had already made the accusations against the officers public and "consequently, there is no secrecy to preserve."

"Failing to proceed openly will only sow distrust in the complaints procedure," Pierce wrote. "It will do nothing to address the community's question about whether Thunder Bay's approach to policing Indigenous matters is racist."

The court will review the matter the week of Dec. 3.