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Information roadblocks for Indigenous in-custody deaths in B.C. revealed in new report

Leonard Cler-Cunningham's website lists the names of almost 50 Indigenous people who have died in custody since the 1960s.
“Race appearing to have a role in the outcome and determination of the cause of death raises obviously troubling questions," says Leonard Cler-Cunningham.

The B.C.’s government’s alleged unwillingness to release information on the deaths of Indigenous people while in police custody is a problem that needs to end, a new report says.

“For the B.C. Office of Information and Privacy, the Vancouver Police Department, the Royal Canadian Mounted Police and the B.C. Coroner’s Office, when First Nations people die in police custody and investigation into suspicious circumstances is not in the public interest,” the report headed by Leonard Cler-Cunningham said.

Reaction to the report was mixed with police supporting the current oversight environment and the coroner confirming an imbalance in Indigenous in-custody deaths.

The study, called ‘Not In the Public Interest,’ details attempts by the authors to use B.C.’s access to information legislation to gather information on Indigenous in-custody deaths from the Office of the Information and Privacy Commissioner (OIPC), the Vancouver Police Department (VPD), the Royal Canadian Mounted Police and the BC Coroners Service.

Cler-Cunningham’s website of the same name lists the names of almost 50 Indigenous people who have died in custody dating back to the 1960s. He says he’s been trying to get information on those cases. However, he’s hitting dead ends because, he said, authorities are deeming release of the information not to be in the public interest.

The research

Cler-Cunningham said there is already independent work showing the need for greater transparency on in-custody deaths generally.

He noted a BC Civil Liberties Association 2012 study that found that, between 1992 and 2007, there were 316 police-involved deaths in Ontario and 267 in B.C.; that equates to one police-involved death for every 41,806 people in Ontario compared to one for every 16,970 people in British Columbia.

That report suggested rules for mandatory inquests needed to change, and that police should not investigate themselves.

Cler-Cunningham also noted a 2007 audit of deaths by former B.C. Supreme Court Justice Josiah Wood, entitled Report of the Review of the Police Complaint Process in British Columbia.

There, Wood noted at least “a perception, if not the reality, that complaints about police misconduct are treated differently in municipal and RCMP jurisdictions, raising the spectre of inequality affecting all stakeholders.”

Cler-Cunningham cited a 2017 BC Coroners Service Death Review Panel that found that, between 2013 and 2017, 127 people died during or within 24 hours of contact with police. It’s when the Indigenous numbers are teased out that the numbers become concerning, he said.

Further employing the coroner’s data, he said 60 per cent of all Indigenous deaths while incarcerated occurred in police custody.

“For the non-[Indigenous] population, the figure is 25 per cent,” the report said.

And, he said: “During that decade whenever a First Nations person died in custody the coroner ruled that the cause of death was undetermined in 20 per cent of cases, while the undetermined rate for the non-First Nations inmate population was eight per cent. Accidents were ruled the cause of death in 40 per cent of the First Nations cases but only 28 per cent for non-First Nations."

Cler-Cunningham adding: “Race appearing to have a role in the outcome and determination of the cause of death raises obviously troubling questions.”

Attempts to get further information on deaths being looked at were refused, he said. So, a request was sent to the OIPC for a review of those requests.

“Despite our request that the cases be bundled together the OIPC made us argue each case individually,” Cler-Cunningham said.

“After several years of back and forth [in] legal submissions, the OIPC ruled that the documents, necessary for any proper investigation into the First Nations deaths in police custody, were not in the public interest,” he said.

Police and coroner

BC Coroners Service spokesperson Ryan Panton said all police custody deaths must be reported to his agency.

If a death occurs while a person was detained by or in custody of a peace officer, the death must be investigated by way of a public coroner’s inquest.

“In 2019, the Coroners Service convened a death review panel that investigated deaths among persons with recent police encounters between Jan. 1, 2013 and Dec. 31, 2017. Among the findings in the report that was produced by the panel is that, of the 127 persons who died, 26 were Indigenous persons (20 per cent). At the time the report was written, Indigenous people in B.C. comprised six per cent of the population,” Panton said.

VPD spokesperson Const. Tania Visintin told Glacier Media the department supports the level of police oversight and the accountability it brings in B.C.

“There is already a significant system of police oversight in British Columbia, which includes the Independent Investigations Office (IIO), the Office of the B.C. Complaint Commissioner, the BC Coroners Service, and the BC Prosecution Service,” Visintin said.

The information commissioner’s role

The OIPC explained the process by which information requests are handled.

Still, the OIPC said in a statement to Glacier Media: “The transparency and accountability of public bodies is especially important when it comes to matters concerning the treatment of First Nations people, including those in police custody.”

How the system works, the OIPC said, is that the public body to whom a record request is made first decides whether the records will be released, or not. If the person asking for the records disagrees with the public body’s decision, they can then go to the OIPC to have it reviewed.

“It is then the OIPC’s role to determine if the records or information should be disclosed,” the statement said. 

The OIPC said there are certain situations where information generally should be released without delay:

  • if it is about a risk of significant harm to the environment or to the health and safety of the public or a group of people; or
  • if the disclosure is clearly in the public interest.

The OIPC pointed to Investigation Report F16-02 that explains factors that public bodies need to consider under the Freedom of Information and Protection of Privacy Act. Those factors include whether disclosure is plainly and obviously in the public interest.

“In making this determination the public body must consider a list of non-exhaustive factors. Some of the factors include whether the matter involves a systemic problem rather than an isolated event, whether the subject is of widespread public debate, and the effect of disclosure in light of the potential benefit to the public,” the OIPC said.

"If the information is determined to be in relation to a matter that is in the public interest, a public body must then consider the nature of the information and weigh competing public interests to determine whether the threshold for disclosure is met."

RCMP response

RCMP Staff Sgt. Kris Clark said regardless of race or gender, all police in-custody deaths are subject to a mandatory, independent investigation in B.C.

"The RCMP takes issue with the suggestion that any death, could be deemed 'not in the public interest' to investigate when, in fact, the opposite is standard practice," Clark said.

He said the Independent Investigations Office investigates whether the actions or inactions of the police may have resulted in the death.

And, he said, if the IIO determines actions or inactions of a police officer may have constituted criminality, they submit a report to the BC Prosecution Service for charge assessment.

Further, he said, regardless of the outcome of an IIO investigation, any police in-custody death may also be subject to a coroner’s inquest.

"The BC RCMP fully supports and participates in both independent processes," Clark said. "Historically, prior to the creation of the IIO BC, in-custody deaths, regardless of race of gender, were investigated by an independent or outside police agency with the same objectives as the IIO: determining criminality in the death, if any."

Clark provided several resources for people to examine:

• IIO BC cases and investigative reports;

BC Coroner inquests, findings and responses, and;

the BC Coroners Act with respect to death investigation.

He noted in "addition to our support and participation in these independent investigations, as part of our accountability and transparency to the public, the RCMP publishes a number of statistics related to police use of intervention options" on their website.