Outcry over obstruction already heard

Opinion

Hey there, time traveller!
This article was published 25/11/2018 (2223 days ago), so information in it may no longer be current.

The ball is now squarely in Justice Minister Cliff Cullen’s court.

Appointed in August, Cullen finds himself at the centre of a storm over the Independent Investigation Unit (IIU) of Manitoba, the agency tasked with investigating incidents involving police that result in death, injury or possible criminality.

An in-depth investigation by the Free Press revealed that the Winnipeg Police Service (WPS) has, for years, been obstructing IIU investigations and ignoring efforts by its civilian director, Zane Tessler, to bring the police service into compliance with provincial law.

As justice minister and attorney general, Cullen has an obligation to act. Will he step up?

Cullen’s first gesture was positive. After the Free Press reported that two years of annual reports from the IIU were missing, Cullen released both volumes in prompt fashion. However, that seems to be the limit of his response.

Even though the province promised a review of the Police Services Act in last week’s throne speech, Cullen would not commit to a detailed examination of the IIU as part of that process.

“We haven’t heard that outcry from Manitobans yet,” he said.

Cullen’s suggestion that there may need to be a public “outcry” to justify a review of the IIU is unusual for a number of reasons given the allegations. First, it’s hard to summon a public outcry over transgressions that were deliberately kept from public view.

Cullen’s reference to public outcry is also curious given that the minister seems to be been deliberately kept in the dark about Tessler’s concerns about obstruction by the WPS. Both Cullen and his predecessor, Heather Stefanson (now the families minister), both claimed they had heard nothing about police obstruction of IIU investigations.

The Free Press investigation revealed emails and correspondence in which Tessler expressed concerns that some incidents involving WPS officers were deliberately withheld from the IIU. In these cases, the WPS Professional Standards Unit (PSU) is conducting interviews and clearing the officers involved, a practice that directly contravenes provincial legislation.

In those cases that are reported to the IIU, Tessler suggested the WPS is obstructing investigations by refusing to disclose evidentiary material or make its officers available for interviews by IIU investigators.

The fact that Tessler’s concerns were not disclosed to the minister’s office should be cause for major concern. At minimum, it suggests there is no mechanism in place to keep the minister up to date on the performance of the IIU.

The IIU was, at its inception, a good idea limited by bad execution. The former NDP government did follow through with a pledge to put a civilian in charge of the agency, but it did not give that civilian sufficient investigatory powers to compel evidence and testimony. It also allowed for current members of the WPS to work as investigators for the IIU, a situation that screams out conflict of interest.

However, the lack of warning to the minister’s office could have far more serious implications.

It seems highly improbable that senior officials in the Justice Department would not have known about Tessler’s concerns that the WPS was breaching provincial law. As he considers that issue, Cullen should remember his department has a worrisome history of hiding its dirty laundry from both the public and the minister.

Senior Justice Department officials have been able to evade ministerial oversight by using the traditional firewall between the political and prosecutorial branches of the Justice Department. The firewall is in place for good reason; it would be highly improper for a politician to direct or otherwise interfere with Crown attorneys on any particular prosecution.

However, when there is evidence of a miscarriage of justice or — in the case of the IIU — concerns that a police service is breaching provincial law, then the firewall needs to stand down.

That has not been the practice of the prosecutions branch.

Despite the fact that the prosecutions branch has a solemn obligation to act on any possible miscarriage of justice, there are repeated instances when Crown attorneys instead suppressed the details of problem cases from their political masters.

The failure to address these miscarriages of justice, and properly alert the political branch of the Justice Department, not only caused untold embarrassment for the government of the day, but was a contributing factor behind the tens of millions of dollars in compensation to the victims of the miscarriages and in costs for commissions of inquiry.

If none of that is persuasive, Cullen might remember that the IIU was created in response to the 2008 Crystal Taman case.

The mother of three was driving to work on Feb. 25, 2005, when she was rear-ended by a truck. It was driven by an off-duty Winnipeg police officer, Derek Harvey-Zenk, who evidence showed had been drinking heavily with fellow officers in the hours before the crash.

The case, handled initially by the East St. Paul police, and then later by the WPS professional standards unit, was a symphony of incompetence and corruption. The investigation was so botched, the prosecutor was forced to reach a plea deal with Harvey-Zenk that resulted in a two-year suspended sentence.

The province ordered an inquiry that condemned both the East St. Paul and WPS and led to the creation of the IIU, among other measures.

Cullen needs to move swiftly to get his own first-hand information on the battle between the IIU and the WPS. And as he does that, he should remember one overarching fact: due in large part to the Taman tragedy, the public outcry on this matter has already been heard.

dan.lett@freepress.mb.ca