2 officers' lawyer blames any mistakes on TBPS, First Nations man's lawyer calls accused's work 'appalling'
Any mistakes in the investigation of First Nations man Stacy DeBungee's death in 2015 were the result of systemic issues with the Thunder Bay, Ont., police service, the lawyer for two officers accused of neglect of duty and discreditable conduct told a hearing Friday.
However, while David Butt argued on behalf of Staff Sgt. Shawn Harrison and Det. Shawn Whipple, the lawyer for DeBungee's family suggested the two officers aren't taking responsibility for their actions.
Harrison and Whipple have been charged under Ontario's Police Services Act. The three-week hearing began in Thunder Bay on May 30 and the two-day closing submission phase ended Friday.
The body of DeBungee, 41, of Rainy River First Nation, was found in the McIntyre River in Thunder Bay on Oct. 15, 2015.
Harrison has pleaded guilty to neglect of duty and not guilty to discreditable conduct; Whipple has pleaded not guilty to both charges.
Harrison pleaded guilty specifically over his failure to meet with a private investigator hired by the DeBungee family. However, Butt told the hearing Thursday, Harrison had "no obligation" to meet with the investigator.
All other problems with the investigation were systemic, Butt said.
For example, Harrison, who was the lead on the investigation, released the scene after consulting with the coroner and forensic identification unit, but before a post-mortem examination was done.
Currently, police hold a scene until a post-mortem is complete, but that wasn't standard practice in 2015.
"We have to be particularly careful that we don't fall into the trap of judging them by hindsight," Butt said.
Within hours of DeBungee's death, a news release approved by Harrison said police suspected "no foul play." The following day, a second release, which Harrison claims he didn't approve, notified the public that DeBungee's death was "non-criminal" before a post-mortem examination was conducted.
A 2018 Office of the Independent Police Review Director review of the DeBungee investigation found police conduct constituted neglect of duty, as they reached the premature conclusion he fell unconscious from alcohol consumption and rolled into the river.
The case served as the impetus for a two-year investigation led by retired senator Murray Sinclair that found systemic racism in the Thunder Bay Police Service (TBPS).
Family's lawyer says officers 'gave little effort'
On Friday during her closing statements, Asha James, lawyer for the DeBungee family, called the officers' work "appalling."
"These officers gave little effort to finding out what happened to Stacey DeBungee," James said. "And since then, all they've done … is pass the buck and make excuses."
James argued "DeBungee's Indigenous status was front and centre in this investigation, and the two officers "relied on their initial bias and prejudice."
"The moment they found an Indigenous man dead in the water, they assumed he had been drunk and just rolled into the river," James said. "They have no evidence to support that Stacy DeBungee had been drinking that night."
Whipple's involvement questioned
With regards to Whipple, Butt argued he couldn't have neglected his duty in the investigation, as he was never officially assigned to the case.
"Being on the same shift in the Thunder Bay [Criminal Investigations Branch] at the time was very different from being assigned to a case," Butt said.
The lawyer said any involvement Whipple had in the investigation was due to workloads and circumstance. For example, he conducted one interview at police headquarters, but that was because he was the only member of the Criminal Investigations Branch available to do so, Butt said.
"There is no evidence that [Whipple] had responsibility to do anything that he didn't do," Butt said. "He's on the same shift; he pitched in where he could."
Prosecutor Joel Dubois disagreed. He cited a number of investigative activities Whipple was involved in, including being among the officers who met with DeBungee's next of kin.
"[Whipple] may not have had a central role — I concede that," Dubois said. "But that doesn't mean he can abdicate his duties as a police officer."
Butt also denied charges of discreditable conduct against his clients, saying both have longstanding relationships with Indigenous people in Thunder Bay and have worked diligently on major cases in which Indigenous people were victims.
WATCH | The CBC's Fifth Estate investigation into this case No Foul Play:
Death In Thunder Bay: No Foul Play
What happened to Stacy Debungee on the night of Oct 18, 2015 was a mystery, but just hours after finding his body in a Thunder Bay river, police determined his death was not suspicious. The fifth estate went to investigate what really happened and found several people who were there that night and agreed to share their story.
Neither Whipple nor Harrison, Butt said, are racist, and the fact DeBungee was Indigenous had no bearing on how they performed their duties.
Further, Butt said, Harrison never ruled out foul play as a possibility in DeBungee's death, something that was backed up by the coroner.
"We just have to recognize the distinction between a homicide being a possibility, and there being evidentiary grounds to suspect a homicide," Butt said. "If we don't get that distinction, we fail to understand the evidence in this case.
"Homicide is always a possibility until evidence conclusively eliminates that possibility," Butt said.
No evidence brought to Harrison's attention during the investigation "grounded a suspicion of homicide," he said.
No need to prove intent, prosecutor says
Dubois argued that under the law, intent isn't necessary when it comes to finding a police officer guilty of neglect of duty.
Both officers, Dubois said, showed discreditable conduct when it came to DeBungee's death, as both admitted during cross-examination that they assumed DeBungee was impaired before they had evidence confirming that, and despite a lack of evidence of alcohol consumption at the scene.
DeBungee was known to police prior to his death and had been charged with alcohol-related offences in the past, Dubois said.
"The evidence is clear, we have it in the transcript, that at the scene, Harrison made an immediate assumption about Stacy DeBungee and how he died," Dubois said. "This is the beginning of Staff Sgt. Harrison's tunnel vision, the beginning of his closed mind. In fact, it tainted the rest of the investigation going forward.
"Harrison did not in my respectful submission take the investigation as seriously as he should have. He did not take the necessary steps required of a supervisor," he said. "It's not just any investigation. It's a death investigation."
The hearing is scheduled to reconvene in September, when a decision by adjudicator, Greg Walton, a retired Ontario Provincial Police officer, is expected.
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