Michael Spratt: Canadian police are not above the law. They just act like they are

A new report on RCMP behaviour during the Boushie investigation is blistering. The Mounties should lawyer up.

Photo Credit: Mike

By: Michael Spratt

The RCMP, as they like to say, always get their man — unless that man is the RCMP. In that case, the man can commit crimes with near impunity.

But before we talk about some probable crimes by Canada’s top law enforcement agency, we need to set the stage.

On August 9th, 2016, Gerald Stanley shot Colten Boushie, a young Indigenous man, in the back of the head at point-blank range. Stanley’s defence in the killing of Boushie, who at worst was committing a minor property crime, rested on a lack of intent. He did not claim self-defence, but instead Stanley claimed a “hang fire” occurred — an unexpected delay between pulling the trigger and discharge. In other words, the killing was an accident, Stanley claimed, probably caused by the cheap, old ammunition that had been stored in an unheated shed. Despite experts being unable replicate the misfire, Stanley was found not guilty of murder by the all-white jury.

Following Stanley’s acquittal, the Boushie family launched a civil lawsuit against the RCMP and made a complaint to the RCMP oversight body, the Civilian Review and Complaints Commission (CRCC). They alleged that the RCMP acted in a racist and illegal manner during the investigation. 

This week the CRCC released its report into those complaints, concluding that the RCMP engaged in racial discrimination and illegal conduct. The CRCC found that the RCMP illegally detained the young Indigenous men who were with Boushie when he was killed. The CRCC also found that the RCMP searched the Boushie residence without any judicial authorization or legal authority. 

The CRCC further called out the RCMP for its cold-hearted conduct when they informed Boushie’s mother that her son had died. The RCMP displayed little humanity and a lot of racism when they dealt with the grieving mother. Immediately after informing her that her son was dead, the RCMP questioned Boushie’s mom about her sobriety, smelled her breath, and questioned her credibility. 

And then, as RCMP officers were illegally searching her home, she was told to "get it together." 

To its credit, RCMP leadership accepted the findings of the CRCC. But the rank and file membership, the actual police officers who interact with the public, and their union, have rejected the report, calling it biased.

All of this is a stain on Canada’s top law enforcement agency, and part of a deeper failure by the RCMP to meaningfully address its own reluctantly acknowledged systemic racism toward Indigenous peoples, but it is far from criminal misconduct. 

Unfortunately for the RCMP, obstruction of justice and tampering with evidence is very much a criminal offence and it looks like the boys in red should lawyer up.

In the course of the CRCC investigation, the commission requested all recordings, transcripts, and radio communications from the day of the shooting. These communications would have undoubtedly been important to the investigation and could have provided a window into why the RCMP engaged in illegal and discriminatory conduct. 

But the RCMP destroyed those records. They claimed that it was part of a routine procedure and that records with no evidentiary value have a shelf life of two years. Except the RCMP knew that there was an ongoing CRCC investigation and a civil lawsuit by the Boushie family when they destroyed the records.

If you or I destroyed relevant records, while staring down a barrel of a civil lawsuit or investigation, we would end up before a judge on charges. 

Every time I ask the RCMP to destroy records relating to my clients who have been acquitted at trial, even after years have passed, I am met with a wall of resistance. So it seems a bit convenient when relevant documents are so easily destroyed when it is the RCMP who are being investigated.

The CRCC report also discloses that the RCMP conducted a parallel investigation into the Boushie incident — with officers questioned and evidence gathered. This RCMP investigation not only potentially contaminated the CRCC inquiry, but the RCMP kept their investigation a secret and failed to disclose the fruits of their internal investigation to the CRCC.

This all reeks of a cover up and an attempt to obstruct justice.

And it seems that the RCMP has a track record of ignoring the law and destroying documents.

In 2012, after the Harper government killed the long-gun registry, the RCMP destroyed the associated data and did so, according to the-then Information Commissioner Suzanne Legault, “with the knowledge that [the] records were subject to the right of access guaranteed by subsection 4(1) of the Access to Information Act.” 

In the long-gun case, despite assurances from then Minister of Public Safety and Emergency Preparedness, Vic Toews, and the RCMP itself that they would abide by the legal requirement to preserve records, the CBC reported that, “Cabinet ministers, government officials and senior RCMP figures applied "a lot of pressure" on RCMP agents to accelerate the destruction of long-gun registry records, despite active access to information requests.”

In that case, the RCMP’s actions were so egregious that then-justice minister Peter MacKay referred the matter to the Public Prosecution Service of Canada, which in turn handed the file over to the OPP for a criminal investigation.

The OPP only dropped the investigation after the Harper government, in its dying days in office, passed legislation that granted retroactive immunity to the RCMP.

That retroactive immunity also frustrated an investigation into allegations that the High River RCMP used long-gun registry data in order to locate and seize registered weapons from homes that were affected by the 2013 flooding.

There are two laws in this country. One that applies to you and me and another set of rules that applies to the police. 

For too long the RCMP, along with provincial and municipal forces, have rejected calls for transparency and accountability. They have resisted mandatory training on civil rights while at the same time asking for more money and more power.

Police misconduct has been enabled by politicians, who are more interested in crime and punishment as a political wedge than the idea of police accountability.

So, who polices the police? It turns out it doesn’t really matter. Because apparently the law doesn’t apply to them anyway.

Michael Spratt, certified by the Ontario Law Society as a criminal law specialist, is a partner at the Ottawa law firm Abergel Goldstein & Partners and co-host of the legal and political podcast The Docket. Follow him on Twitter here.

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