Secrecy of police board hearing in Thunder Bay, Ont., must be reconsidered, appeal court rules

A retired judge will have to decide anew whether to keep secret a hearing that will decide if police officers should face disciplinary proceedings for their investigation into the death of an Indigenous man, Ontario's top court ruled on Friday.

The appeal raises important questions about the openness ofpolice board hearings as guaranteed by the charter, the Court ofAppeal said in its decision.

The case arose in October 2015, when the body of Stacy DeBungee,41, was found in the McIntyre River in Thunder Bay, Ont. Withinhours, the Thunder Bay Police Service said his death was notsuspicious and closed its investigation.

DeBungee's brother and the chief of the Rainy River First Nationscomplained to the province's police oversight agency, the Office ofthe Independent Police Review Director. In February 2018, the officefound evidence existed to suggest the officers involved in the deathinvestigation had committed misconduct.

Because of the amount of time that had passed since the initial complaint, the city's police service board needed to decide whetherto grant an extension to allow disciplinary proceedings to go ahead.Rather than decide itself, the board asked a retired judge, Lee Ferrier, to hold a hearing on the extension.

At the urging of the chief of police, the oversight agency andofficers involved, Ferrier decided the extension hearing should be held behind closed doors. He did so over the complainants'objections and despite the fact that hearings under the PoliceService Act are, by law, normally open to the public.

In his ruling, Ferrier decided among other things that holding anopen hearing could taint witnesses and stigmatize the officersinvolved.

The complainants and the Canadian Broadcasting Corporation turnedto Divisional Court, where they argued unsuccessfully that thecharter requires an open hearing except in narrow circumstances.

On appeal, the complainants and CBC argued the extension hearingshould be open given the allegations of racism and mistreatment onthe part of the Thunder Bay police toward the Indigenous community.

The higher court found Ferrier was partly right. However, it alsonoted a subsequent Appeal Court ruling that the charter guaranteesthe public's right to attend police board meetings unless there arecompelling reasons to abridge that right.

The Court of Appeal ordered Ferrier to take another look at hissecrecy decision but offered several reasons as to why he shouldlean toward openness.

"It is arguable that the price to be paid for that added elementof legitimacy is the kind of openness that quasi-judicial proceedings ordinarily attract," the Appeal Court noted.

In addition, the court noted that a highly critical report fromthe oversight agency into systemic racism within the Thunder Baypolice has since been made public, and the issues surroundingDeBungee's death have attracted significant media interest and arewidely known.

"The complaint that (the officers) were guilty of misconductforms part of a much larger pattern of concern," the court said. "The racial tension between the Indigenous community and the TBPS, the distrust of the Indigenous community towards the TBPS and thecurrent state of administration of criminal justice all pointstrongly to the need for openness and transparency."