Police Complaint Process -- Issue No. 17 -- Monday, April 15, 2002

2002 Legislative Session: 3rd Session, 37th Parliament
SPECIAL COMMITTEE TO REVIEW THE POLICE COMPLAINT PROCESS
MINUTES AND HANSARD

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE
TO REVIEW THE
POLICE COMPLAINT PROCESS



CONTENTS

		Page

Testimony of Witnesses		333
	Dana Urban Steven M. Kelliher

Chair:	* John Nuraney (Burnaby-Willingdon L)
Deputy Chair:	* Dennis MacKay (Bulkley Valley–Stikine L)
Members:	* Ken Johnston (Vancouver-Fraserview L) * Richard Lee (Burnaby North L) * Brenda Locke (Surrey–Green Timbers L) * Patty Sahota (Burnaby-Edmonds L) * Patrick Wong (Vancouver-Kensington L) Jenny Kwan (Vancouver–Mount Pleasant NDP) * denotes member present

J. Nuraney (Chair): Good afternoon, members. I would like to call the meeting to order.

As you know, we have today a submission from Dana Urban. Just for the record and as you know, Mr. Urban, we had some concerns that were brought to us in one of our submissions some time ago about the office of the police complaint commissioner. The summons that went out to you was to elaborate a little bit more on some of the cases that were brought to light. I thank you for coming and joining us this afternoon, and I would like you to now make your presentation. Thank you.

D. Urban: Thank you, Mr. Chair and members of the committee. Due to a long trial I've been involved in, I have been pressed for time. Though I sat down and made some notes on points I wished to cover, I haven't had the time to read my notes to see if they made any sense. Because of that and because of the fact that I'm sitting down and I'm always used to standing up when I speak in court, I ask for your patience as I move through this.

As stated to Mr. Chair, I am here because of being issued and served a summons last week to appear before you. I have read the transcripts of many of those that have come before me on prior occasions, including the flowery words of the commissioner himself regarding his independence, impartiality, openness and the transparency of his operation.

In particular, because of the words I have read in Hansard of Mr. Adie, who appeared last week, and because of the press release subsequently issued by the commissioner discounting Mr. Adie's assertions, I have, as well, brought with me binders of some materials I have that may assist you in determining whether or not Mr. Adie was misinformed or a disgruntled former employee.

I'm also here prepared to speak to you and present these documents to you after receiving a copy of the commissioner's letter to you consenting to my appearing in this capacity before you. As well, I have received legal advice from a number of lawyers about speaking to you. I have received advice from a very senior bencher of the Law Society of B.C. I have perused various provisions of government laws regarding my ability to speak before you. Lastly, I have considered that, truly, my employer during the relevant periods of time was not Don Morrison. My employer was the people of this province.

J. Nuraney (Chair): Mr. Urban, just for the record, would you mind telling us your previous positions and the involvement?

D. Urban: Yes. I'm here presumably because I was brought on in a seconded position temporarily, for an eight-month period of time, to serve as senior legal adviser to the commissioner's office. That period of time was roughly September 2000 through to when I walked out in disgust in May 2001.

In order to amplify on that, allow me to briefly tell you about myself so you can better understand why I am concerned with what I observed while at the police complaint commissioner's office with the process, how the process was implemented and how he did his job. I want you to understand that I am not — as Mr. Morrison has pointed the finger to Mr. Adie — simply another disgruntled employee who is unhappy because my advice was not accepted.

I direct your attention firstly to the book of documents. Tab 1 is my résumé. I don't intend in any way to go through that, but it is there should you wish to have a view later. I'll summarize it by saying that I am a Crown prosecutor, and I have been a prosecutor with the Attorney General's ministry for 15 years. I've been a member of the bar for approximately 25 years. With Crown counsel, I have been and continue to be part of a unit that prosecutes major crimes, mainly murders and other sensitive cases.

In 1994 and 1995 during the war in Bosnia, I was a senior legal adviser to the United Nations war crimes tribunal in The Hague. My primary responsibility with the tribunal was to lead an investigative and legal team into central Bosnia and investigate alleged atrocities that had been committed and were allegedly continuing to be committed against defenceless Bosnian Muslim civilians in central Bosnia by Croats.

Our team was charged with going in there and attempting to find the survivors and, if the allegations proved to be true, to secure evidence and get that evidence out of Bosnia back to The Hague to analyze and work with it. Additionally, one of my prime responsibilities once back in The Hague, and then going back and forth into Bosnia, was to determine whether or not war crimes had, in fact, been committed by the Croats against the civilian population, to draft appropriate indictments, to appear before the World Court to present a prima facie case in order to secure international arrest warrants against the indicted Croats.

I did draft those indictments, and I did receive the international arrest warrants. Those indictments were the first indictments charging the leaders — and this becomes important later when I deal with the Georgia Straight and Mr. Kelliher — but I drafted the indictments and got the warrants against the leaders instead of the trigger men. One of the notable leaders is General Tihomir Blaskic, who was the general of the Croatian army that was involved in the atrocities. Subsequently, and largely due to the courage of civilian survivors, he was convicted by the tribunal in the year 2000 and at the time received the highest sentence ever handed out: 45 years.

What was also notable about the indictment is that it also charged Vice-President Dario Kordic for masterminding his plan to wipe out, to ethnically cleanse,

the Muslim population of Bosnia and to have the Croats take over and realize the greater Croatian destiny. He incited the people. He gave directions to the army commanders, including Blaskic.

Somewhat ironically, however, when he was convicted in the year 2001, he received only 25 years in prison for that. Perhaps, given what clearly was police involvement in many of the massacres, had there been effective civilian oversight in Bosnia, far fewer people would have been massacred, far fewer raped and far fewer left homeless simply because of the colour of their skin or their ethnic or religious backgrounds.

In short, bigotry, prejudice and human rights are, have always been and continue to be of great import to me. My c.v. will show I have lectured in many, many places to many different, diverse audiences about these matters, about bigotry and prejudice, and have tried to convey that those evils in society are not concepts found in far-off lands but within the hearts and minds of people in our own country.

It is because of my respect for basic human dignity that I went to the office of the police complaint commissioner. I thought — wrongfully — at the time that I could make a contribution in our society. I had high expectations of accomplishing a lot of good. I failed miserably in my job. I'm ashamed to have my name linked in any way to that of the commissioner. I'm so ashamed that I have not yet had the courage to add to my c.v. the fact that I was there at all.

Lastly, by way of introduction, unlike Matt Adie, I am not retired. I still work for the people of this province. I'm here with a heavy heart regarding speaking about the inner workings of the police complaint commission. I'm here in fear of my career, in fear for the economic well-being of my family and myself, should I speak out. But I am here, and I will tell you the truth, because I think the public need for the truth is greater than mine as an individual. I have nothing to gain by being here. I have everything to lose except one thing, and that is my own dignity. Nelson Mandela has said that those who stand silent in the face of evil indict themselves. By summoning me here, you have allowed me to not be silent.

In tab 2 I have included the commissioner's press release, which, in my view, ridicules Mr. Adie, stating that he gave you misinformation and suggesting that he came before you because he was unhappy because his advice was not accepted. That is absolute rubbish. Mr. Adie is a most dedicated public servant and a person who, in my lifetime, is one of the few who has such high moral standards.

The commissioner, in his third-to-last paragraph on page 2, states: "I hope in the future more effort will be made to verify allegations before presenting them to the public as truth." Morrison said that. I hope my presence and the few documents I have brought with me today will help you in the verification process Morrison demands and will help you as a committee in your search for the truth. Because of the commissioner's public attack on Mr. Adie's integrity, I will restrict myself to matters raised before you by Mr. Adie.

I note that in today's Province, which I'll refer to later, there is a splendid pictorial article defending the police complaints czar — words of praise by people in high places, notably Justice Oppal and Chief Battershill of the Victoria city police department. With respect, they are outsiders looking in. Mr. Adie and myself, and perhaps others, will come forward and tell you what it's like from the inside looking out.

Prior to dealing with the specific examples — and they are only examples — raised before you by Mr. Adie, I wish to give you a very brief overview of my view of the need of the OPCC and its successes and failures.

In my view, there is a great societal need for effective, independent, impartial and unbiased civilian oversight. By using the words "independent, impartial and unbiased," I mean in the real sense, not just flowery words.

Police officers as a group are nothing less than heroes, in my opinion. They repeatedly put themselves in harm's way to protect us from evils in our society. By and large, they are not only courageous but highly moral individuals, and we require of these individuals to do numerous things that we ourselves are not prepared to do or do not have the courage to do. We place them in dark, isolated and violent situations and require them to deal with people who are dangerous, violent, drunk, on drugs, dishonest or just plain and simply evil.

They are targets for and are vulnerable to unwarranted and untruthful accusations of misconduct. In their dangerous tasks and vulnerable situations, we cannot also forget they are citizens of our country, just like you and I, who have families, dreams, emotions and feelings, and good days and bad. They are deserving of our utmost respect and fairness of process in handling complaints against them. Of that there is no doubt. However, like any other group, there are individuals within police departments who do not deserve the honour or the privilege of being called a police officer. Of that there is also no doubt.

Administrators in police departments have added considerations. They have to deal with labour laws, union contracts and internal office politics. They have to take into consideration potential lawsuits against their officers and their departments for harm coming to people. Additionally, it cannot be forgotten that the police leaders themselves are also police officers.

In my view, the only real, effective mechanism to protect those who have in fact been harmed or mistreated by bad cops, to provide protections to officers and to provide comfort to society as a whole — comfort in the sense that these concerns are handled in a manner fair to all — is by continuing with legislated civilian oversight of a police complaint process such as what we have in part 9.

The Oppal model is, by and large, a good model that needs some minor legislative tweaking, particularly with regard to procedure. With the right commis-

sioner at the helm, it is a substantively fine model. Procedural tweaking, in my view, could save the taxpayers of this province millions of dollars that are now going into the pockets of lawyers who seize upon these procedural uncertainties rightfully in advancing their clients' best interests. In my view, this money could be far better spent educating the police and the public or, if nothing else, simply reducing our deficit. The procedural changes I have in mind will occupy more thought and time, on my regard, and those procedural matters, though not unimportant, are not of the greatest significance today.

The Oppal model's substantive soundness can be likened to a beautiful piece of architectural work — for example, the CN Tower. Looking at a tower such as that from the distance, the tower appears quite imposing — a large, functional blob suspended high in the air by a very narrow or skinny concrete support pillar. One can examine that tower from a distance and admire it and look at the cement casings supporting it and, not seeing any cracks or chinks undermining its strength, conclude that there are no problems with the tower. However, it is not solely the visible cement that supports the structure but what we cannot see from a distance, what we cannot see from the outside. The rebar inside the cement is what gives it its ultimate strength. If the rebar is faulty, the tower will collapse, and many who trust in its strength will be harmed.

It is no different when looking at the Oppal OPCC model. The real strength or rebar of that model in civilian oversight, in my view, is simply basic human values that must be possessed by any commissioner, particularly given the tremendous discretion, responsibility and power afforded the commissioner. The rebar is not cold, hard steel but basic things such as honesty, integrity, openness, independence, impartiality, dedication, commitment, a strong work ethic and a respect for other people — to name but a few.

Without that rebar, the best model of civilian oversight will fail, and those whose rights it was designed to protect will be harmed. In my view, the performance or lack of performance by this commissioner shows little rebar, and this leaves, in my view, only two choices open to this committee: either come up with a new model that is not so heavily dependent upon an individual, or do some serious repair work and put in place someone that has the qualities necessary to perform that task. My suggestion, for your consideration only, of course, is to try the latter approach, as I still have faith in the basic Oppal model.

Now, if I may turn to the heart of Mr. Adie's submission. It is my view that Mr. Adie did not expose all but gave you simply some examples of the lack of rebar in this commissioner. Having received permission recently from the Paul family from New Brunswick, I feel more comfortable speaking about Mr. Adie's first example involving a Mi'kmaq first nations man from New Brunswick who was a long-term resident of the East Hastings area of Vancouver. This man died needlessly on the evening of December 5, 1998, or in the early morning hours of December 6. He was a drunk. He was unemployed. He was homeless. He had crippled hands and crippled feet. Though he had little, perhaps, to offer our society, he was, in fact, a human being.

We live in a Canadian society that cherishes human life and a society where the paramount and most fundamental human right is the right to life. He died during or soon after his involvement with the Vancouver city police department.

To understand his case, we need to start with some simple basics, and I direct your attention to tab 3. I quote from the police code of ethics, paragraph 13.1: "As a member of the community and as a police officer, I recognize that my fundamental duty is to protect lives…."

Going on in the second paragraph: "I will faithfully discharge my duties in a just, impartial and reasonable manner, preserving the equality, rights and privileges of all persons, as guaranteed by the Canadian Charter of Rights and Freedoms."

On the next page, each officer takes an oath. I quote a portion of that oath, the last portion: "…and that while I continue to hold the office, I will, to the best of my judgment, skill, knowledge and ability, carry out, discharge and perform all the duties of my office faithfully, according to law, so help me God."

There were two officers in this case from the Vancouver city police who on that night that I have referred to recognized their duties to protect human life and lived by their oath — none others. Tab 4 contains the statements of these two officers. I will semi-quote and paraphrase the first report without mentioning the names of the officers whose names appear. These two officers were working uniformed patrol in an unmarked police car. The report says:

It is clear. It's there by you to read. The other officer comes to the same conclusions — that Paul couldn't stand, was unable to care for himself and had to be carried to the paddy wagon. There are two police officers, doing their duty, biding by their oath and attempting to protect Mr. Paul.

Tab 5 is the regional coroner's report. I haven't included the whole report; it might be in the office if it's important to you. Anyway, on page 1 she makes some determinations: that Mr. Paul died of hypothermia and that his blood alcohol content at the time was between 0.39 and 0.40. She concludes — and it's important to bear in mind that she's making these conclusions based only on information that was provided to her at that time, largely by the police — at the bottom of page 6:

She later — as is shown in tab 8, which I don't wish to quote from — revisits the matter and decides that there would be no review simply because of policy. In her view, policy demands a review if it can be shown that Mr. Paul died in custody, and because she was not satisfied that he was in custody when his heart quit, she was no longer interested.

Because of Mr. Paul's death, the police themselves became the complainants in this case under a form 1, as you're familiar with, and sent the file eventually to the commissioner's office. Bill MacDonald, senior investigator of the commission, took conduct of the file that is now known as OPCC file number 0406. He did an initial review. The full review is there in tab 6. I will not quote from it, but it is worth a read in due course.

He noted in there that the file had originally been sent to Crown counsel, as is accepted policy, to determine whether or not in their view there was sufficient evidence to meet the criminal charge approval standard to lay charges against these officers. It must be remembered that the burden of proof in a criminal prosecution — i.e., beyond a reasonable doubt — is substantially higher than the burden of proof in part 9 of the Police Act.

In any event, as you will see, Mr. MacDonald did a very thorough analysis and pointed out numerous discrepancies in the statements of the police officers involved other than the two that did their duty. In addition to pointing them out, he identified other areas of investigation. In August 2000 he strongly recommends to the commissioner a public hearing for all the reasons he stated, all the reasons of which are clearly set out in the act with which you're familiar.

I wish to add this about Mr. MacDonald so you understand his work. In reading it, you may come to your own conclusions. In my 25 years of working in the criminal justice system, dealing with at least hundreds of investigators — the RCMP, municipal forces, investigators throughout the United States and around the world — I could say that though Mr. MacDonald is not a police officer, he clearly is one of the finest investigators I have had the privilege of working with.

The Crown, in their decision-making, relied heavily on what the police had given them, particularly the statements of the paddy wagon driver and the sergeant in the booking-in area of the jail. Their version, though it's set out in other materials in more detail, can be summarized thus. The paddy wagon driver said he was called for a pickup, and he loaded Mr. Paul into the paddy wagon and took him to jail. He said he took him to his sergeant, and the sergeant said he wasn't drunk and to just breach him outside the area — dump him, in other words; dump this human being.

The sergeant stated in his statements to the police investigators that he made observations that this man was not drunk. He based those observations on comparing what Mr. Paul looked like earlier that evening, when he had been released from those very same cells — all of which subsequently comes on video. He says that what he saw that night was that Mr. Paul was in the same condition as when he had been released hours before, that he was able to walk, talk and care for himself. That's why he felt he did not have the right to retain him in custody. He said he had a conversation with Mr. Paul. This, of course, if nothing else, is in direct contradiction to the two officers that found Mr. Paul in the first place and sought to protect him.

The paddy wagon driver says that he took Mr. Paul — not how or anything — in the paddy wagon to the detox centre to drop off others, but because the detox centre wouldn't take him, due to past violent behaviour, he took him to an isolated alley. He says he took him behind the detox centre, in this alleyway, that Mr. Paul was mobile and that he helped him put his clothes on and his shoes onto his feet and helped him walk across the gravel into this little area in the alleyway where it was apparently environmentally fine. He opined that Mr. Paul's attire was safe for the weather. A couple of hours later, ironically, the same original police officers that tried to protect him are the ones that found him soaking wet and dead, his clothes either off or askew, with his shoes six feet from him.

If one just stopped there and said okay, if we accept that, then maybe we don't have a public hearing. However, sometime in September or October, after my arrival at the OPCC, Mr. MacDonald had concerns about that file and he brought it to my attention.

MacDonald and I spent a lot of time on this file over the remaining months that I had with the OPCC. I took the file. I read it thoroughly. I read his analysis and recommendations. We developed areas to investigate and started the reinvestigation.

One of the points was to get the commissioner's agreement to spend money to retain the services of Dr. Rex Ferris, a world-renowned forensic pathologist, in order to get him to look at the file and give us his opinions about the process and mechanisms of death associated with hypothermia and, further, to take the facts as stated by the non-protecting police witnesses, look at their statements and match them up against science to see if there's any validity in what those officers said.

Tab 7 contains, in the latter part of it, Dr. Ferris's c.v., which speaks for itself. He is a man who has repeatedly been called and recognized as an expert in his field throughout the world.

He looked at what we could give him at that time. It is paramount to remember that at the time he was given still photographs. We did not at that time have real-time video. It really is quite amazing, once one considers the video, to see why Dr. Ferris is world-renowned.

He says a number of things of import. I wish to quote some. He says, on page 4, starting in the second-last paragraph:

J. Nuraney (Chair): Mr. Urban, just a question. This report was ordered by yourself?

D. Urban: It was requested by me of the commissioner to spend the money to retain Rex Ferris to have a look at the facts as we then had them. He approved of the expenditure.

Prior to Dr. Ferris providing this report, as is usual, he discussed matters with me. I was quite excited about his findings, so I went and spoke with the commissioner and passed on my verbal interpretation of what Dr. Ferris said. It struck me as odd that the commissioner was noticeably disinterested and made, at that time, a negative personal comment about Dr. Ferris.

I asked Mr. Morrison at that time not to prejudge things and to allow me to attempt to get Dr. Ferris to come to Vancouver, deliver his report, answer questions and fill in the detail of the skeleton of his report with a verbal presentation. The commissioner agreed. Those arrangements were made, and Dr. Ferris came to our office.

We went into the boardroom. Many of you may know that right at the end of that boardroom is a doorway that opens into the commissioner's office. There's MacDonald, myself, the commissioner and Dr. Ferris, who was kind enough to come. Dr. Ferris started putting more meat on those bones of what he really meant by certain words. The bottom line, in his view, was that the police were not telling the truth. It could not have happened the way they say it happened.

The moment Dr. Ferris cut to the chase and came to the bottom line, something noticeable happened. The commissioner got up and rudely walked out of that boardroom into his office and shut the door, leaving Mr. MacDonald and me to thank Dr. Ferris for coming and send him on his way.

I was displeased by that rudeness, and I immediately went into the commissioner's office. I was shocked to see that he was doing nothing in there. He was doing something that was absolutely, totally non–work related. My memory is that he was doing something that he often did in that office, and that was to sit at his computer and play computer solitaire. I tried to speak to him about the import of the Paul case, and he was totally disinterested and snorted and grunted and, with his hand, waved me out of there, as was not uncommon.

Mr. MacDonald and I, however, continued on trying to find bits and pieces, including finding out that the conversation that the paddy wagon driver says that he had with the detox centre about not allowing Mr. Paul in there because of his past violence appears to be at odds with what people from the detox centre have to say about Mr. Paul. That's why one has public hearings: to determine truth.

Most importantly, the one piece of evidence that became critical in everything was the video. To the Vancouver city police's credit, they did not destroy that video. They kept it in safekeeping and turned it over to Mr. MacDonald. One of the problems with the still photos that we were looking at and that Dr. Ferris was looking at is that that's what they are. They're still. They're showing Mr. Paul here, still; there, still. Everywhere he's still in that frozen moment of time. What the photographs do not show is motion. When you're

dealing with intoxication and hypothermia; whether or not someone can care for themselves; and whether or not the sergeant and the paddy wagon officer were mistaken or not telling the truth, the video was critical.

Mr. MacDonald took it out to the RCMP forensic crime lab, and their experts put together all the different cameras that show different areas in real time. Now we can add motion, the third dimension.

MacDonald and I watched that video. This case became crystal-clear. The first part of the video put together was Mr. Paul's release earlier that evening. What do you see? You see what you should see. You should see a man who's crippled, who is disabled, who can look after himself. You can see him being treated with kindness by the jail people — someone offering him a coffee, being nice to him. That's what that video shows. It also shows what the sergeant said — that he was the same as later, when he told the paddy wagon officer to go dump him like a bag of garbage outside of the area.

What does it show? It graphically shows the paddy wagon coming in and Mr. Paul being taken out of the paddy wagon, right onto the cement, spread-eagled, with his hands back, and being dragged, like a sack of garbage or a carcass, all the way down the hallway to the elevator, leaving a clear, definite, distinct, unmistakable wet mark far better than a janitor could do over that area. Nowhere to that elevator does Mr. Paul move — not a blink of an eye, not a finger, nothing. The button is pressed. He's taken up the elevator — the same.

The door opens to the sergeant's booking-in area, and what do you see? They don't even take him out of that elevator. He doesn't move in that elevator. The sergeant goes in briefly. I don't know when this conversation took place or how he could have assessed an inert object — and there's certainly no movement, even if he was alive at that point in time.

Now that it's all happened, you shake your head when you see, on two occasions — twice — the nurse that is on duty walk right past that open elevator. No inquiry is made of her of this man, and not one police officer said, "Hey, nurse; can you come here for a second and have a look at this man?" — nothing. Instead, what you see is directions being given, the paddy wagon officer getting back in the elevator with Mr. Paul, the door closing, reopening on the paddy bay window, or whatever it's called, and the same thing.

This man is being dragged out by his feet, with his pants being pulled down on his buttocks area, exposing the skin that Dr. Ferris was talking about, the guard helping with the arm limbs, therefore bringing the clothing up, very similar to what we see in many rape cases, homicide-rape cases. These are things we looked for, and that's what we saw.

That's how the two officers that did their duty found Mr. Paul. We were excited about that. The commissioner was not excited. To the day I left in May of 2001, he did not — and refused to — sit down and watch that video.

What do we have? We have a man who didn't make a movement, whose clothes were soaking wet, being dumped in the middle of nowhere in 2 degrees Celsius weather. The power of the video is a corroboration of what Dr. Ferris said, both about the medical condition and about his view as to whether or not it was physically possible for Mr. Paul to have done what those policemen said he did.

In tab 9, I wrote a letter. This is not the first time I did something. I had — excuse me, I attempted to have — many oral conversations with the commissioner, always to be cut short, on the Paul case. I couldn't figure out why the Paul case. What was the problem here? In any event, he went on holidays. I drafted a letter on this file, where I spent a great deal of time summarizing the facts as I then knew them — facts always change — and summarizing all the processes that took place and Dr. Ferris's opinions.

I spent many hours researching and collecting all the law in this area, including many cases of the Supreme Court of Canada, duties of police officers, decisions of our Court of Appeal, etc. I put all that together with a recommendation that, given the new evidence, at the very least this office should be sending the file back to Crown counsel to revisit and determine whether or not they now felt they could meet their criminal charge approval for charges of manslaughter, criminal negligence causing death or, at the very least, failing to provide Mr. Paul with the necessities of life.

Many months later — eight or nine — after I left, the Crown, for whatever reasons and without articulating why, chose, as is their right, to determine that still it did not meet charge approval standard.

My letter is there for your reading. Those were my thoughts at the time, and I doubt that they have changed. Subsequent investigation, as shown in tab 10, indicates that MacDonald was further able to determine that there was room at the inn that night. It wasn't even a case that the jail was overcrowded. When Morrison returned from holidays in January, I again tried to speak to him about this case, and again he continued his disinterest.

In tab 12 Bill MacDonald did another memo to me. Everyone else in the office had not given up on Paul. In his memo of January 25, 2001, what is of import, I think, is the top paragraph on page 2. This is a real problem that you have to deal with as a committee, especially in who the commissioner is. He says: "On January 24, 2001, the writer received a telephone call from Brian Solomon, an elected council member of the Big Cove band council." That's in New Brunswick. "Solomon advised that he had been in the office when the call had come in from the police regarding the death of Frank Joseph Paul." So the police called. "Solomon advised the police informed him that Frank Joseph Paul had frozen to death in Vancouver."

Two paragraphs down: "Solomon stated that no one had been told by the police that Paul had been in police custody shortly before his death."

That's significant. No one told his family how Frank died, other than that he froze to death. These people in

New Brunswick would not have known of their rights to be complainants under this act. The Vancouver city police, by signing the form 1 and notifying the next of kin as they did, were in law allowed to become the surrogate or de facto complainant for Mr. Paul in this case. There was no one in the Paul family or the tribal council who was provided with any information that in any way would enable them to make any informed inquiry or decision about invoking the complaints process. They had no information of police involvement.

In law we often hear these words: "Not only must justice be done, but it must be seen to be done." For the Paul family and the first nations of the Big Cove band in New Brunswick, I think we must also add to that the phrase, "Justice cannot be seen to have been done if it cannot be seen at all," as in this case.

Don Morrison had the power, given the potential lawsuit by the Paul family if they ever learned about what had happened, to have this case investigated not by the Vancouver city police but by an external and more independent police agency. He had that power, and he knew he had that power, and he chose not to use that power.

By a copy of this memo, Don Morrison knew — if he didn't know it before — that this family had not been provided with any information about the death process in this case. He didn't pick up the phone and dial the numbers that are in this memo and ask to speak to the Chief or to the Paul family. He just kept his mouth shut. He didn't advise these people what their rights were. I repeat: justice cannot be seen to be done if it cannot be seen.

Every person in our office, excluding the commissioner, felt strongly about this case and that this case was a public-hearing case. Matt Adie, in tab 13, as his swan song, as he left on early retirement…. What did he choose, of all the things that bothered him in that office? What subject matter did he choose to leave as a lasting thing with the commissioner?

All I have is a copy of the draft, but I understand that the final is not substantively different. Matt Adie says — tab 13, first page — amongst other things, that to him this file is extremely important on two grounds.

The one received a two-day suspension for discreditable conduct, and the other received a one-day suspension for neglect of duty — three days in total for the life of a man. I'm not even sure if that was suspension without pay.

That's the question that he leaves. As I stated earlier, I left the OPCC in May in disgust. Though I have never met Mr. Paul, and I do not know his family, his death has haunted me since I have left.

Tab 14 contains a series of my letters. Because I've enclosed the bad with the good, you will see that I am accused of wrongfully attempting, given that I am no longer counsel, to improperly influence the commissioner in his sacred duty of acting impartially and independently.

There are some quotes I would like to put on record, though all is there for you to review. On August 15, 2001 — which, I understand, is the only letter of mine, along with other missing documents in that file, that has not been shredded….

J. Nuraney (Chair): Are you suggesting that documents from the file were shredded?

D. Urban: My information is — and others, hopefully, coming here may well confirm — that of tab 14, of all these letters that I have written, the only letter unshredded is the first letter of August 15, 2001. There are other opinions, of which I am advised by those who know, that there are other documents that have been either shredded or electronically removed from the computer.

If I may place on the record some quotes, beginning firstly with my August 15, 2001, letter to Mr. Morrison. I say:

On August 23, not having heard anything, I wrote again. I asked him to look at Ferris's report and to look at the video.

August 27. I now receive what I briefly alluded to, the threat letter from then counsel Kevin Gillett, on behalf of the commissioner, where he says:

That did upset me, which resulted in a lengthy letter by me of August 31 to Mr. Gillett, where I wished to correct him. On page 2, I begin by saying:

I just wish to correct that. Now that I've looked at the documents, it's the one of December 22 that I've earlier referred to.

J. Nuraney (Chair): Mr. Urban, just a quick question. Why, in your opinion, was he disinterested?

D. Urban: There is nothing that he ever told me — or told others that has been shared with me — as to why he was so disinterested. I have my opinions, but that's all they are. It would be speculation. I think that if you accept as fact — which is up to you — that Mr. Adie and I are speaking the truth, then it's for Mr. Morrison to tell you why he was disinterested.

K. Johnston: Yeah. If I could jump in here, Mr. Urban. It's something that's probably not that relevant, but I'm just wondering. Is it normal procedure — for example, in the case of you writing the two letters of August 23 and 15 to the commissioner — for somebody other than himself to respond? I was just interested in why he used Kevin Gillett to respond to your letter. You had worked with him and were sending him information. Normally people respond directly. Was there some reason for that?

D. Urban: It seems that it was okay for the police to correspond with him in writing or on the telephone or at luncheons or parties, and for other lawyers to correspond directly with the commissioner. My read on that was that the commissioner really did not like to hear what I had to say about that. Therefore, I have been advised by Mr. Gillett that the commissioner instructed him to be the insulator between myself and the commissioner.

K. Johnston: It was just a matter that he didn't want to deal with you directly? Was that basically it?

D. Urban: Though I won't quote any more from them, I do refer to them in the bodies of my letters that I have enclosed. I thought it was of great import at the respective times to send to the commissioner, through his counsel, copies of press reports that I thought were highly relevant to the Paul case. That was, firstly, the report entitled: "Police Unable to Plead Mistake in Dumping Man, Judge Tells Jury." The next one is on the next page: "Saskatoon Policeman Guilty in Dump-

ing Death." Then the last one is the December 8, '01, article where they're talking about the police officers appealing, which is fair enough.

It's important to just take one moment to look at the import of the facts in the Saskatoon case. In the Saskatoon case, when you compare it to what we had in British Columbia, there was no video on that one. You had a first nations person who was taken into custody by the police and thrown into the back of the police car. That first nations person was obnoxious and violent, and the police, dealing with that kind of individual, went and dumped him in bad weather.

If you're soaking wet and can't move, is placing you out in the rain in 2 degrees Celsius weather really any different from what the Saskatoon police did with this man, who was totally able to look after himself, absent the subzero temperatures that he was dumped in, in the middle of nowhere?

A marked difference is that this is the response of the Saskatchewan justice system, in a case where this man lived. This man didn't die. What has our province's response been to a man that was helpless and is dead — a marked difference? Even this didn't seem to do anything to breathe life into the Paul case. Life went on.

Now, I have read today's paper, as I indicated earlier. Mr. Morrison appears to have moved from the misinformation and personal slagging of Mr. Adie to a different position. I quote from the Province newspaper of today's date:

I find that absolutely astonishing. Neither of these people — the Solicitor General or the chief coroner — has ever had the file. He talks about rehashing. It hasn't been hashed, let alone rehashed.

Why does he think that they ought to do something about the police conduct regarding Mr. Paul? That's why we have part 9 of the legislation. It's his job. All this is, in my view, is a pitiful trying to pass the buck to other people.

Mr. Morrison, on his website, in his annual reports and in his testimony in front of this committee, touts his openness and his transparency. Anthany Dawson's case came and went during the life of the Paul case. There are clear protocols — there were then, and I assume there still are — that if there is to be no public hearing, the reasons of the commissioner are to be published on his website that he talks about all the time.

Anthany Dawson's was published with full reasons as to why he did not proceed in that first nations case. I invite you to look at that website, and unless it appeared yesterday or today, there's not one single reason put on that website about Mr. Paul. Why is that?

J. Nuraney (Chair): Mr. Urban, just a matter of clarification. There is this letter here that you have given on file, dated December 19, 2000. It's a letter from the Vancouver regional coroner. So the file did go to the coroner?

D. Urban: Yes. That is the document that supports what I said earlier — that she later revisited the Paul case after her initial report that appeared in tab 5.

D. Urban: Not the entire file. She was asked to revisit it as an in-custody case and with some of the new facts. She rightly, I suppose, determined that because her mandate was to deal with in-custodies and Mr. Paul, in her view, was not in-custody, there would not, therefore, be a review by her.

J. Nuraney (Chair): Thank you. Sorry, come back to the Anthany Dawson case. Was it that it's not on the website?

D. Urban: Yes, Anthany Dawson. That family knew what happened, and they had the resources, the will, the money to retain counsel and get this in the public eye. That's very remarkably different than the Paul case. That's why we know about Anthany Dawson.

Why is it that we do not know? After all this time, why is that not on the Internet — his reasons? He tells us now what his reasons are, in the newspaper. They're pathetic.

Why have my letters been shredded? Why have Mr. MacDonald's opinions on the computer been deleted? Why has his written copy of his opinion been shredded? If what he says and what I say is so wrong, and if this is supposed to be an open and transparent outfit like the commissioner touts, why is that stuff not there? Surely he can explain it and withstand scrutiny by this committee.

Don Morrison said in his prior press release that others will come forward — presumably, his subsequent lawyers — as to why he decided to do nothing. His one lawyer, Mr. Gillett, advised me that though he was writing me these letters, he had never ever read the file or viewed the video. I doubt very much he could give much legal counsel to the commissioner on that.

It is my understanding, and presumably it will be verified by other members of the OPCC coming before you, that the Paul file was very uncharacteristically taken from its usual place. Not only were the documents shredded that I referred to, but it was under lock and key away from the general staff and investigators at the OPCC. How is that open and transparent?

J. Nuraney (Chair): But the matter did go to the Solicitor General eventually?

D. Urban: I am informed that a letter went to the Solicitor General — no file, no video, no legal opinions.

Lastly, regarding Mr. Paul, I say this: the public has now spent millions of dollars, through police departments, through individual officers defending themselves or through the OPCC implementing part 9, with Morrison as the commissioner. In total, in four years there have been nine public hearings ordered. One of those nine wasn't in fact ordered at all by the commissioner but as a right by a respondent. That leaves eight in four years for the commissioner. Some of those aren't anywhere near completion. Some of those have been called, in my view — and I support Mr. Adie in this regard — as a direct result of being driven by the press.

One of the public hearings that was called by the commissioner was the Abbotsford case handed by then ad hoc counsel Steven Kelliher, a noted and well-respected barrister in this province. This public hearing was called in a situation where an ERT team entered a suspect's house not knowing at the time that there were in fact kids there having a birthday party. A family pit bull attacked the police, and the police shot and killed the dog.

Surely, Frank Paul, aged 47, a first nations person of the downtown east side, deserved at least the same consideration as a pit bull.

On the other matters raised by Mr. Adie, I will be far briefer. Collectively speaking, they are but other examples of the diseased rebar that I have alluded to earlier.

The next specific matter of concern to me is not only the lack of support from the commissioner to fulfil his mandate to educate the public about the police complaint process and their rights in that process but his active discouragement against this to the poor, to visible minorities.

Marilyn Whitfield is still a member of the OPCC. She is, in my view, a caring and dedicated public servant. It is her primary responsibility to be in charge of arranging for and attending these community educational sessions. She was repeatedly upset and dismayed, on a regular basis, by the commissioner's interference in her performing that function, which I feel is essential in our society. There's no good in having any rights if you don't know about them. I personally heard him, on one occasion, state words to the effect that it is improper to go to these visible minority groups and provide them their rights, particularly in the east end of Vancouver, because to do so would only encourage false accusations against police officers.

One day, when she was particularly upset and needed support, I inquired as to what was wrong. She feared that an engagement she had arranged on East Hastings with a native group was going to have the thumbs put down on it at a meeting we were just about to enter with the commissioner. I attempted to calm her. I said: "Don't worry about it. We're going to go in there, and we will take the bull by the horns. When that item on the agenda comes up, I am simply going to make an announcement that I am available tonight, and I will be going with Marilyn to East Hastings Street."

That was done and not a word given. The intro was said by the commissioner. Marilyn and I went to this community centre where these poor people, a lot of them drug addicts, a lot of them alcoholics, prepared a meal for us. We had an enjoyable dinner. Marilyn then stood up after dinner to quite a large, receptive audience and gave her presentation of the police complaint process and the basic rights that these people had. Even given the vulnerability of the people that we were dealing with, they were not only most appreciative, but they stayed past the time that was allotted to ask questions. A number of them wouldn't let us go so that they could talk privately, out of the earshot of others.

Mr. Morrison's fears that this kind of activity generates false complaints is hogwash. Even if it did, that's why the office is there: to attempt to protect police officers from false accusations. That's why the commissioner is there: to protect the rights of police officers. The irony is that after all of that, not one person in that community centre lodged any complaint, let alone a false one.

Mr. Morrison's answer to this alleged ambulance chasing is: "Eh! Not a problem. It's on the Internet. Everything you need to know is on the Internet."

I've got to ask: why, then, are we spending money and human resources from that office training the police officers when they've got their own budgets and trainers? He does not understand that the people living under cardboard and in stairwells and other places don't have computers. They don't know.

In my view, it's a serious flaw in the performance of his mandate to educate all people, whether they're from Shaughnessy, Oak Bay or East Hastings. I beg you to inquire of this issue of Marilyn Whitfield, of Lori Loseth and of Bill MacDonald.

The next issue regarding the concerns of the diseased rebar is the concept of independence and impartiality or the perception of it. Again, I reiterate that they are not just flowery words. They must be real. The commissioner's conduct in this regard has appalled me, basically, from when I first arrived. I raised it with him constantly, as did others within the office. We were embarrassed, as professionals, by this conduct, by him repeatedly going out to parties — Christmas parties, socializing — and his closed-door meetings with police chiefs, closed-door meetings with their lawyers.

Not only did this perception of bias at the very least cause us embarrassment, but it put him, as was told to the commissioner, in a continuous position of being at risk of being compromised in the public eye and compromised in any particular case by potentially being a witness — as he may end up in the Phillips case by the time the dust settles on what went on behind closed doors.

I finally started quitting just talking about it and started putting it in writing. I direct your attention to tab 15 on a file we haven't talked about. If nothing else, if Morrison denies we verbally talked to him, this then

starts to speak for itself in writing, if it has not been shredded like other documents.

I see that Mr. Kelliher is here, and we have been going for some time. I am more than prepared to stand down if you will hear me later. Though I've said most of what I have to say, there is more that I think is necessary. I understand that Mr. Kelliher will not be long. Perhaps conveniencing him would be more prudent.

J. Nuraney (Chair): I thank you. There are a lot of questions, I'm told, that the committee members would like to ask you. If we can perhaps have a recess for five minutes and let Mr. Kelliher then come and give his submission. Then we can recall you again after Mr. Kelliher is done.

Mr. Kelliher, would you please state your name and your connection to this process.

Mr. Chairman, members of the committee, my name is Steven Kelliher. I am here in response to the invitation of Madam Clerk to provide the special committee with whatever information I have that might be of assistance in your very, very important work.

As a result, it is with regret that I must tell you that upon receiving the invitation from Madam Clerk, I wrote to Mr. Morrison, the police complaint commissioner, seeking his leave to waive the solicitor-client privilege that would permit me to be of assistance to you here today. That was on April 8. On April 9 in the morning I received a telephone call from Mr. Morrison to advise me that he was in agreement with my speaking frankly and fully before you and that any issues of privilege were waived. That afternoon I received a phone call to the contrary, withdrawing any waiver and insisting that solicitor-client privilege be maintained.

If I could bother you by just reading an excerpt from the rules of the Law Society, which govern me before you here, it says this:

Ladies and gentlemen, as a result of that stricture, which I say is the ethical constraint…. There is an evidentiary one that's associated with the concept of solicitor-client privilege. There is a legal one as well. That is to say, it is a legal right a client enjoys, a breach of which will have legal consequences, not simply ethical ones. With these constraints there is virtually nothing that I can say to you about my experiences of some two years with the office of the police complaint commissioner. I say again that it's with regret, real regret, that I am unable to provide this committee with information that may be helpful to it in doing its work.

J. Nuraney (Chair): Thank you, Mr. Kelliher. We have in our possession a letter here, dated November 30. We had, in anticipation, written a letter to the police complaint commissioner at that time, asking for a release. That release has been given to us with names of all staff members and service contractors.

J. Nuraney (Chair): It is, I believe, a letter that tells us. Should I read this?

S. Kelliher: Sir, I can tell you, if you like; but for the record you may wish to read that in. I've read that letter; I'm aware of it. Madam Registrar provided that to me when I explained to her that in order for me to come and testify, I would require some indication from the commissioner's office that there was a waiver of solicitor-client privilege. She was kind enough to provide that document to me, which is a blanket invitation for the committee to speak to employees and contractors. It leaves the issue of waiver of solicitor-client privilege, in my view, ambiguous. It does not address that issue specifically.

No lawyer…. I shouldn't say that. I am in a slightly different position than other lawyers who may have worked for that office. I am not a public servant. I do not work for Crown counsel; I do not work for the province of British Columbia. I am a private lawyer hired by a client on an ad hoc, case-by-case basis. No lawyer can infer a waiver of solicitor-client privilege. There can be no ambiguity as to whether or not your client has permitted you to divulge his or her confidences. There was, in my view, ambiguity in that document. It did not deal expressly with whether I was permitted to divulge these confidences and whether solicitor-client privilege was waived.

I wrote to the complaint commissioner on April 8, as, in my view, I must do. There cannot be a grey area here. It is unacceptable for counsel to proceed in the face of that ambiguity. I wrote seeking clarification, because if that's what he meant by that letter, although he didn't say it, I wanted to give him the opportunity to say directly what might be taken inferentially. As a result, I received a positive response and was pleased for having done that. Then it was withdrawn. Although I say that it denies this committee what possible assistance I might be to it, it still must be. That privilege is sacrosanct, and no matter what the importance, it cannot be diluted or evaded or danced around to any degree.

I say to this committee that I live and work in this area. I am available. But for court appearances, I am available within 15 minutes' notice from this committee. If Mr. Morrison chooses, by action in the course of his representation before you, to waive privilege, or if you can explain to him, persuade him, that the importance of this committee transcends some of his concerns, then I'm available. I don't say happy, because this is not happy business, but I am willing to reattend here at very short notice.

J. Nuraney (Chair): I thank you for the explanation, and I am very sorry to see that Mr. Morrison has deemed it necessary to withdraw his release of the client-solicitor privilege. This is a committee that is appointed by the Legislature. It is a standing committee which has privileges which, I believe, also can surpass those kinds of restrictions. Without going into those legalities and technicalities, I think it would be much nicer if Mr. Morrison….

We will certainly contact Mr. Morrison in this regard to obtain his release, to make it more comfortable for you to come before us to share some of your experiences in terms of the cases and the procedures which, perhaps, in your opinion, you may feel have some shortcomings.

The purpose of this committee, the mandate of this committee, is to review and to see the act as it works or does not work. We are here to fine-tune it, to find methods and opinions, to look at and review the experiences in the last three years, to see how, in practical terms, it is working or not working. It is also to establish the work and the performance of the police complaint commissioner, and it is very important for this committee to also examine the office's performance in the past three years. I personally feel that Mr. Morrison should have absolutely no hesitation in giving us the release that you deem necessary to come before us.

B. Locke: Mr. Kelliher, my question is: do you believe yourself to work for the police complaint commissioner, Don Morrison, or do you work for the office, being the people of British Columbia? If you would explore that a little more and perhaps think about that. I certainly don't have any answer myself.

S. Kelliher: Let me say this. I have put some effort into sorting this through. Understandably, a person doesn't testify or present evidence before such a committee on a daily basis, and I wanted to research my footing before I took the position that I did. I have spoken with the Law Society at some length and other senior members of the bar. This is not an opinion I have that is unique to me. It's a consensus of the legal opinions I've sought.

In specific answer to your question — was I instructed by the people of British Columbia or Mr. Morrison? — I think I would have to err on the side of caution and say that he was my client. He was instructing me. He was telling me what to do and what not to do. I don't think I could circumvent the obligations that would flow to him by saying that I was really paid by Her Majesty and the people of British Columbia. I don't think I could do that.

D. MacKay (Deputy Chair): Mr. Kelliher, I think the Chair alluded to the fact that it was Mr. Morrison who called and withdrew your privilege to speak to us. Is that correct? Was it Mr. Morrison who called you?

J. Nuraney (Chair): Just one more comment. I'm sure Mr. Morrison will have no hesitation in giving us a release, as I feel very confident that he has nothing to hide. I'm sure this process, which we consider to be very transparent and accountable, will certainly give us the opportunity to complete our mandate.

One last question on generalities. Would you like to talk to us about the process and the act as you have seen it unfold and offer any opinion or areas that we should look into?

S. Kelliher: The information that I could provide you I have acquired as a result of my employment with the police complaint commission. It is knowledge that derives directly from my position as counsel to the commission. I don't feel I am at liberty to discuss anything I have learned as a result of being in that position, absent a waiver from Mr. Morrison. It's not simply what he said to me; it's all that I have learned.

That may not be a great deal, after all, but these are the confidences, the knowledge that is passed on to counsel by virtue of being counsel for any person. I'm not free to discuss anything of that sort, absent his waiver.

This is something known to lawyers and known to Mr. Morrison. I am not taking an artificial or strategic position here designed to frustrate your work. This imposition on me is complete and is known to Mr. Morrison. If he feels otherwise, all he need do is say so.

J. Nuraney (Chair): I thank you, Mr. Kelliher, and I hope you will allow us the opportunity to ask you again to come before us once we have clarified the air, so to speak, and have got the release that you are asking for.

D. Urban: As I say, I'm used to speaking standing here. This is still throwing me off.

I was talking about the perception, if nothing else, of the important words of impartiality and independence and giving some examples of why it's a dangerous thing to do what the commissioner repeatedly does. In tab 16 Matt Adie, given the accusation of misinformation, raised this particular issue as an example. Now, it is interesting to look at the various documents that I have put in here in relation to what he said.

It all starts on this: after extensive work by investigator Bill MacDonald and myself — a lot of it at nighttime and in the early morning hours, well outside work hours, without pay…. We worked together on computers, mainly in my hotel room, putting the investigation together on what we called the Vancouver Six — six police officers of the Vancouver city police that were alleged to have done a number of things, including not being overly forthright in court in a criminal case, which resulted eventually in a judicial state of proceedings on serious drug charges against individuals. The facts of that case really do not matter for our purposes here today other than to deal with the issues of independence and impartiality.

On December 11, after a long meeting and going through all the paperwork and the commissioner considering the criteria under section 60(5), it was decided to hold a public hearing. All the documentation was being prepared for his signature, and while I was doing that, the commissioner was doing other things. The other things include what he does, and that is to usually get someone else to draft him a press release to go along with his public hearing announcement.

Life goes on. I'm doing other things, and all of a sudden I'm handed a draft press release, as appears on the fourth page. It says: "December 11, 2000 — Draft." All that handwriting is mine, of things I was thinking about, having received that. The moment I saw that, it brought back memories of something that I will talk to you about shortly: what I viewed as the betrayal by the commissioner of his former ad hoc counsel, Steven Kelliher, in the press. I'll speak to that, as I say, momentarily. That was in regard to the Hyatt case.

What upset me in this draft, amongst other things, was the middle paragraphs, where he says, as an independent and impartial officer…. "In considering whether to hold a public hearing, I read the complete report of this thorough investigation, which was used by a highly respected police chief to decide on disciplinary actions," Morrison said. "My decision to order a public hearing is not an indication that Chief Constable Blythe's handling of the matter was in any way inadequate or improper."

I started to feel the potential of a knife in the back on this matter, which at that time I believed I would be taking into a public courtroom and trying on behalf of the commissioner. When I saw that, I immediately went to him and told him that this was against the oral agreements and protocols that we had all agreed to, that this smacked of the Hyatt press materials and that there were things in there that should not be in there if he was to be independent and impartial. If none of that mattered, the most highly offensive part is when he said that nothing that the chief constable did in the handling of the matter was inadequate or improper.

That's the very heart of the issue; that's why we're going for a public hearing. What happened in that case, from the police perspective — and I'm not saying that it's wrong or not — is that four of the six officers…. Not a single thing happened to them — nothing, no internal discipline. That's what the police chief, on his investigation, determined. On the other two officers he found that there were some minor improprieties. The issue of whether or not there was perjury in a criminal courtroom by police officers was not dealt with by way of discipline.

After this press release, I am supposed to walk into a public forum and tell an independent adjudicator: "Well, Dana Urban here, appearing as counsel for the commissioner. We're here because of the factors set out in section 60(5). One of the things that we consider is what penalties, if anything, the discipline authority meted out." I don't want some adjudicator, during the course of the proceedings or if the allegations are proved to be true in the eyes of the adjudicator, to ask me: "Well, what are you doing here? Your own commissioner has told us that we don't need civilian oversight or the police policing themselves here, because the highly respected police chief has done nothing improper or inadequate."

I asked him to change that document, and he refused. I pressed him on that, and he advised me that the reason why he was not prepared to change it is that he had already spoken about this to other people, including Justice Oppal and including the lawyer for the police chief. I told him that either he changes that or he appoints other counsel to appear on his behalf on the Vancouver Six, because I was having nothing to do with that case.

If you flip the page, you'll see what went out on December 13. The only change from what I quoted was that he took out the word "thorough" when referring to the investigation. I'll tell you, members of the committee, I've seen police reports that I don't consider thorough. This one I thought was thorough. Probably the most inoffensive word in there was removed, but we maintained "a highly respected police chief." I was upset.

I was further upset, to the point of resignation, when I was informed a day or two later, after Mr. Morrison had gone off to Asia on his holidays, that it wasn't even Don Morrison that had drafted that press release. I direct your attention to the first three pages of that tab. As you will see, it's got a letterhead of the lawyer for the police chief, complete with fax number, being faxed over to the OPCC — the draft. My information is that Mr. Morrison, again contrary to protocols to quit meeting with police chiefs and lawyers in private….

Forgetting about that one for a moment, forgetting about what we had orally agreed on, on how press releases were going to be done and how they were going to be approved before they went public, we now have the situation where it is clear that Matt Adie did not have misinformation when he appeared in front of you. We have this fax from that lawyer on that date on their word-processing setup — not the OPCC word-processing setup — setting out the draft that they sat down and worked on. That, in my view, brings into serious question, if nothing else, the perception of independence and bias, when two parties are going to sit down and work out what we're going to tell the public.

J. Nuraney (Chair): Just to clarify it in my mind, Mr. Urban. This document that I have in front of me, which bears the mark….

J. Nuraney (Chair): Sorry, I'm told that I can't read the names into the record.

Anyway, this document that is before us here is a draft of a press release that was drafted by the lawyers that were hired by the police?

D. Urban: My information is that the second name that appears on the letterhead was the active lawyer retained by the chief of police on this specific file dealing with the Vancouver Six to represent the interests of his client, the chief, and the police department collectively. This lawyer did not act for any of the six officers named in the public hearing.

My information — this is supposedly the corroboration of my information — is that after Don Morrison decided to go with the public hearing and when myself and Bill MacDonald were preparing the court public hearing document, he took the liberty to go over to that lawyer's office and meet there with the chief of police and work on this draft, which was subsequently then faxed to the OPCC. Most material parts — at least the parts that I found offensive, rightly or wrongly — are incorporated in what finally went out.

J. Nuraney (Chair): Just for curiosity's sake, I have in front of me here a list of all the press releases that have come out of the police complaint commissioner's office since 1998. This particular press release does not appear on that list. Is there any reason why not?

J. Nuraney (Chair): Yes. This printout is from the website of all the press releases that went out from that office.

D. Urban: I have no explanation as to why this one of December 13 is not on there.

D. Urban: With respect to this press release and, again, the protocol issue, I felt betrayed at this time. He went on holidays. While he did that, I went and saw a senior life bencher of the Law Society in Vancouver to see if I could go public over these perception issues or, better, whether or not I was at liberty to go to the ombudsman to look into issues of bias and independence or lack thereof. As well, I sought legal counsel in that regard.

Reflecting on it and cooling down over Christmas, I then decided to go with the advice given to me, which was practical and good advice — that was, to wait for the commissioner to come back off holidays and sit down and demand of him an agreement that we would work immediately towards written protocols, which he would agree to, dealing with press releases, meetings, socializing, that sort of thing.

He agreed, in principle, that he would abide by the oral agreements we had — not just me, other members of the office — and that we would work on these written protocols. But every time after that that one tried to approach him or put it onto an office meeting agenda, it was just given short shrift. Nothing was ever accomplished.

In addition to my oral presentations to him, and overhearing the others in the office and concluding that morale within the office, because of this embarrassment and being tarred with the same brush that he was being tarred with — i.e., our own integrity and partiality…. I started trying corny things with him to get him to understand that it wasn't just Dana Urban and wasn't just Matt Adie and wasn't just everyone else in the office. This really was so simple, and he should see it.

On tab 17, just for example. I was tasked, over a short period of time, to interview four lawyers, who had at least ten years' experience each, for a junior legal position that he was thinking about at that time, and seven fresh faces from UVic law school to come in on short-term internship-type programs to do legal work for us. As a result of that, I crafted very simple questions to ask these people about their concept of independence and impartiality and what not.

As a result, firstly, as I have it set out in the tabs here, March 21, 2001, I give to him a two-page document regarding the experienced lawyers. In the first paragraph I clearly set out that this isn't just me. These people have the same perception of independence and impartiality as everyone in this office has been repeatedly telling you. It's not just us. There's four lawyers that don't know you and don't know us that say that.

Then right after that, I set out hypothetical questions — some of them — for each of these students. These are questions that I developed and tried to mark according to certain criteria. It turns out that they're all really bright students, and it's very difficult to choose between them. But of import — and I leave it with you — are the very basic questions. For example, 18b, their

view on education of citizens in a community — centres such as Oak Bay, Kerrisdale or East Hastings. That's the question. Their answers are obvious. When I ask questions about the socializing of the commissioner, there's the questions; there's their answers. Out of the mouths of babes — to have something that everyone knows, or should know, about perception of bias, except this commissioner.

Now, that didn't seem to do anything to progress us any further in stopping him from his secret meetings, his luncheons and his socializing. So on April 12, on tab 18, I wrote him and threatened immediate resignation over this issue. I think it is of import to put on the record the contents of that letter. I state:

That letter did spark some action, no matter how pitiful it was. On, I believe, the Wednesday or Thursday of that week, the week of May 2, we finally sat down, and he finally agreed to the protocols, which are so basic, that are set out right after my letter. He wouldn't sign them, but he agreed to them in front of everyone.

That was Wednesday or Thursday. Excuse me. It was a Tuesday or a Wednesday, because Thursday and Friday I was in Victoria on the public hearing regarding Maddocks.

On Monday — perhaps Tuesday; my memory is Monday — of the following week, having just agreed to these protocols, Chief Battershill comes over to Vancouver. There is a closed-door meeting; they go out for lunch together. They come back, and that afternoon is dictated and the following day is sent, as is set out in tab 21, an "atta boy" letter to the chief about the police work and the outcome of the public hearing of Maddocks, picking out the initial investigator on the case for his professionalism in the investigation — knowing all along that our office was of the view that the initial investigation by that particular person was far, far from professional. It was the work of another police officer from that police department that in fact was professional and brought the success necessary to that case. So our protocols didn't last long.

In regards to the Phillips matter raised by Mr. Adie. There's a number of documents in here relating to it, but time is such that I won't refer to them all. In tab 20….

J. Nuraney (Chair): Mr. Urban, just a quick question. Is that a normal practice — after a complaint has been dealt with, to write letters of commendation like this?

D. Urban: Where warranted it's, I think, an appropriate practice. It's certainly not uncommon.

The Phillips matter. Mr. Adie has told you quite a bit about that, but Mr. Morrison has said he's given you misinformation. You can be the judge for yourself.

While on another holiday, this matter first arose. My involvement in it began, basically, with a letter from the acting commissioner, Matt Adie, dated April 18, 2001. After expressing concern to me that the lawyer for the police chief of the department involved in a very serious matter was wanting to deal directly with the commissioner, he requested orally and, I think, in writing here — yeah — that I contact that lawyer and advise him of certain things — i.e., he's a lawyer, and I'm a lawyer; and the now acting commissioner has directed me on that basis on this matter, the Phillips matter, not to deal directly with the commissioner and to deal through counsel.

I did that, and in my letter to that lawyer I also remind him that I've already told him in the past that just because this is government doesn't mean you can just circumvent the rules. I remind him of my oral conversation that occurred on another case before Christmas. I received no response whatsoever from that lawyer to my letter, nor did the commissioner, upon his return from holidays, ever discuss that letter with me. Matt Adie has told you what has happened in that office.

In tab 22, all I could find in my own documents was the second page of a two-page memo I sent the commissioner about the Phillips matter, expressing my concern that he would entertain speaking on such a serious matter of public interest to the other side in hypotheticals. "Hypothetically, if we did this, hypothetically, what would you do?" etc. Time, I think, has borne out Mr. Adie, given that these are April and May matters. It is of no coincidence, in my view, that the office of the police complaint commissioner did not get rapidly mobile until about six months later when this all of a sudden became front-page news in Vancouver. All of a sudden there was an interest. There was an interest, with all due respect, in April.

Lastly, in going back to rebar — the basic principles of morality, honesty, integrity and trustworthiness — I wish to briefly refer, in conclusion, to the Hyatt matter, again raised by Mr. Adie. The first document I have is in tab 23, which sets out Mr. Adie's full report that he completed as the observer appointed by the commissioner to observe the Hyatt investigation. He, being the competent individual he is, drafted this lengthy report, setting out, amongst other things, the very serious concerns he had about the investigation by the police of the police.

The commissioner had this report in his possession. I don't recall exactly when it was, but it was well before I joined the commission. This is dated December 9, 1999. It was sometime in the year 2000, and it was after General Tihomir Blaskic was convicted of multiple war crimes — the general I referred to earlier. I can tell you that Don Morrison contacted me about the Blaskic and Kordic indictments in The Hague. In a long conversation, he went through all the problems he was having with the police investigating themselves and playing games and how they had all this video with closeups of police officers — even through their shields, you could clearly see who the individual officers were — yet they refused or were unable to identify their own police — i.e., to make them respondents in a potential public hearing.

He went on and on, but I don't recall the other faults he found in the investigation. He was talking about "time to get tough" and all this with the police. The reason why he was calling was to get my insight into how to go after someone if they're not the trigger man but they're the ones that are in command and in control and, lastly, to see if I could get him a copy of the indictment I had prepared, which had been filed and had gone to trial. I had retained my own copy of that indictment, and I faxed it to him. There is no question he clearly knew that he was going to go command and control against Doern and Jones and that the reason for that was because he had no alternative because he didn't have any of the baton-wielders' names, which had been withheld by the police in their investigation.

When this all went in the ditch in the Supreme Court of British Columbia in front of Mr. Justice Harvey, it was right near the end of August. I started on, like, September 1 — whatever the Monday was in September. The Monday after, this went in the ditch and the press got hold of it. As you will recall Mr. Adie telling you, it went in the ditch because Mr. Kelliher had told Justice Harvey, amongst other things, that they were proceeding against Jones and Doern because of improper, uncooperative police investigation. Then he used the offensive words of a "cover-up" by the police of the police conduct. For that reason and other reasons, the case was dismissed. That's been ultimately reversed on appeal and, as I understand it, is now pending before the Supreme Court of Canada.

The point is that the press got hold of this, and it looked bad for the commissioner — his counsel getting up and saying the commissioner thought it was an improper investigation. "Harvey's decision stated that Morrison's Victoria-based lawyer, Steven Kelliher, had 'asserted that the commissioner'" — the commissioner — "'proceeded in this manner because he considered there had been a cover-up by the chief constables and the members of the Vancouver city police department responsible for the investigation.'"

Now this case has gone in the ditch, and it looks bad for the commissioner. Given my preamble to this — of his conversations with me, knowing full well of Matt Adie's report in writing and instructing his counsel, Steve Kelliher, to appear in front of him and what Steve Kelliher says — Justice Harvey didn't like it. So is the commissioner going to wear this? Is he going to be a man and take it? Well, you can judge for yourself by the quote in the Georgia Straight in tab 29: "Morrison, however, told the Straight that Vancouver police conducted a 'very thorough investigation' and that in his opinion, there was no cover-up." That is absolute hogwash and rubbish. When I was there on the Monday and read that, I was just astounded and wondered what I had got myself into.

Ergo, I went back to the press release on the Vancouver Six, and I was seeing the same setup. That's why I was balking at continuing on as counsel and why I was considering going to the ombudsman's office. I'm sure Mr. Kelliher, though he couldn't tell us anything today, must have been at least as shocked — and probably more — than me in reading that in the paper. Being the ethical, moralistic individual he is and being bound by solicitor-client privilege, you see no response from Mr. Kelliher in the newspaper to set the record straight.

I have talked of but a few examples. If Mr. MacDonald appears before you, he can direct you to other files in the office where there has been serious harm and death to individuals in contact with the police, in which there has not been a public hearing called.

In closing, I say this. Don Morrison repeatedly displays, and you probably have seen it in a number of places, the equivalent Latin maxim: "Who will guard the guardians?" He has baseball caps with that on and T-shirts with it on. Perhaps in my submission, the better question is: "Who will guard the guardian of the guardians?" There are only the people that can do that, and you are the people.

B. Locke: Thank you, Mr. Urban. Your presentation was a thorough one, and I thank you for that. I wonder if you can go back to your tab 16 and just clarify if the press release that's referred to there — the one about the six Vancouver police officers — is the one that Mr. Adie had referenced when he reported to us.

D. Urban: The one where he talked about getting together and sitting down and drafting mutually gratifying press releases. When I read the Hansard of his evidence — I'm not sure exactly where that is right now — I knew it was, at least, the Vancouver Six he was talking about.

Also, I noticed the letter on your tab 19. I won't use the names, as we were cautioned, but that letter is addressed to, I am assuming, the solicitors or the barristers for the Vancouver police department.

B. Locke: Had you written to that company or that group of barristers prior to April 18?

B. Locke: Yeah, but I just wondered if they were the same ones as, perhaps, months before or a year before that.

D. Urban: My understanding is that that firm is long absent any conflicts of interest that they may have. That firm has long been retained as counsel for the chief.

B. Locke: Also, do you have any personal relationship with Mr. Adie? Are you friends?

D. Urban: You may have noticed here that I called him Mr. Adie a number of times. Outside of work the answer is absolutely no. He's a fitness nut; I smoke cigarettes. I go out and smoke, and he goes out and runs. His retirement party, I believe, off the top of my head, is the only social function that I can recall ever being at with him. I may stand to be corrected on something else, but no…. He's a man that I respect, but you must bear in mind that my home was in Victoria. I would leave during the weekends, and then, because I was also doing a case for the Attorney General, I often in fact worked from Victoria.

D. MacKay (Deputy Chair): Mr. Urban, thank you very much for being so thorough in providing the committee with the material laid out as nicely as it is. It was certainly easy to follow you through your presentation.

Just to go back to tab 14 for a moment, if I could, Mr. Urban. You had suggested that the only letter that is still held by the office of the police complaint commissioner is the one dated August 15, 2001 — the first one in the tab. Was that correct?

D. Urban: I just confirmed that a couple days ago. Without divulging my source of information, that is the information I have.

D. MacKay (Deputy Chair): There's quite a few pieces of paper relating to this specific file. These don't show up anywhere in the office of the police complaint commissioner, relating to that particular file. Could they have been filed somewhere else? It doesn't make sense they would be filed somewhere else if they were relating to a specific file.

D. Urban: I'm told that they're not in the file and that they were shredded.

R. Lee: Thank you for the presentation, Mr. Urban. There seems a lot of questions on the record management system in the office. Who is making the policy on the record management? Are there any guidelines for that?

D. Urban: In my eight months there I dealt very little with record management because most of the files I worked on were simply stacked in my office. I never once went to attempt to retrieve them. They just always appeared. I do know that they had procedures in place that were just like any other office. At no time while I was there was anything deleted or shredded. It was never discussed. It was never an issue. A document is a document. If it belongs to a file, whether it's a good document or a bad document, that's where these things go.

Having a secret lockup place with restricted keys is something I never heard of when I was there. I cannot say they, in fact, didn't have one, but I can tell you one thing: the Paul file was never locked up, so why it would now be locked and access restricted is totally beyond me.

R. Lee: You also mentioned that some computer files are missing or have been deleted.

D. Urban: That I don't know. They were deleted off of Bill MacDonald's computer and off — I'm not very computer literate — where they interconnect.

K. Johnston: You've talked a little bit — quite a lot, actually — about a close relationship between the commissioner and various police chiefs. I think you indicated that.

I was just wondering…. Even though there were closed-door meetings and that, would some of that be directly related to trying to develop, in a closed-door meeting, an open-door sort of relationship between departments and the office itself? I assume it might be difficult, if you didn't have some sort of relationship, to get that flow of information and cooperation, if I can put it that way. Could some of that be attributed to that?

D. Urban: Oh, undoubtedly, and I'm not against that. No one in the office whatsoever is against that. You have to foster personal relationships and establish trust, but there's a way to do it. The way we suggested to do it was not the way that he continuously did that.

It didn't matter. We're not advocating for any particular group. It can't be lost that our concern, as well, was for police officers. How would you feel if you were a respondent — for example, if you weren't getting along with your management and all of a sudden the chief wants to take you down and reduce you in rank, to deal with you very harshly? How would you feel, as a respondent police officer who didn't think you had done anything wrong, watching these two clapping each other on the back and having a very nice social occasion? As a respondent, I would be appalled, even if they were talking about hockey.

We're not saying one way or the other that it's wrong. It would be just as wrong if he went down to East Hastings Street and picked a complainant out and was backslapping in a local pub. We just felt it was important to deal openly and professionally in these relationships. Always have someone else there, so that no one can ever say, "Hey, you guys were talking about this case, and I'm upset" — whether a member of the public or the police or the police union. That's all we were asking. This whole process would fail if there weren't good working relationships between all parties.

K. Johnston: Mr. Morrison issued a press release. I don't know how many days ago now. I think he talked about disgruntled employees. What I'm getting from some of the testimony of people that have come forward through the various meetings is that there seems to be a common thread of unhappiness in the operation of that office from just about every level of person. Is my sense on that right? From right down in the accounting department right up to the deputies that worked in that office, would it be fair to say there was unhappiness with the operation or the leadership in that office?

D. Urban: When I left, the morale was one of the lowest I've ever seen. I maintain some contact with some people, and I'm advised the morale is even lower.

I've read what many people have said before this committee. I read one, for example — that was Bill Summersgill — and I must say, I was disappointed in reading what Bill had to tell you — or not tell you. Certainly, in my dealings and around the office, he had — he expressed, at least — very opposite views to what he has said.

K. Johnston: Just one further question. I was somewhat, I don't know, interested in your take on the Paul affair when the meeting was arranged with, is it Dr. Ferris, I think you said?

K. Johnston: He'd gone to a lot of work to come forward and provide some information, and Mr. Morrison got up and left the room and, in your words, I think, went to play computer solitaire. I guess what I'm asking is: was there ever any explanation from Mr. Morrison of that behaviour or his thoughts or why he didn't think it worthy to stay in that meeting? Did anything ever come out of that?

D. Urban: No. You see, forensic people tend to write rather blandly in their reports, and then when they're on the witness stand or witness interviews, they really just cut to the chase. When he heard that, he was hearing what he didn't want to hear, in my opinion, and it didn't interest him anymore, and that's why he walked out.

P. Sahota: Thank you, Mr. Urban, for appearing before the committee. I was interested in terms of some of the protocols that you have laid out in one of your tabs, which brings me to the question about accountability and transparency in the act. Is it your view that that is not laid out properly in the act itself?

D. Urban: Well, it's something that no one — Justice Oppal or the government at the time, when they debated it and passed it — would have ever thought about, because it's so basic that one would never put protocols in a statute. It's like telling a judge on appointment that during the luncheon breaks he shouldn't go for a beer across the street with one of the litigants in the case. People know that. I don't think legis-

lating it is the answer. When first-year law students can tell the difference between right and wrong on perception of biased issues, you don't need legislation.

I didn't get to ask it, Mr. Urban. I just made this quick scribble when you were talking. You talked about — this is a different vein — eight public hearings in four years and spending millions of dollars. I don't know if I got that right, but I was kind of wondering. It intrigued me. What are we spending millions of dollars on if we haven't even completed these eight hearings or whatever?

D. Urban: Well, we're spending a lot of money at the rates charged to individual respondents and police officers at $300 — $300 is a pretty common number — an hour. These cases generate an enormous amount of paperwork charged out at an hourly rate and all the appeals. If those things had been tweaked about, you know, whether Morrison can go after command and control, then we're not fighting those issues out in paper, in the lower courts, in the appellate courts and in the Supreme Court of Canada. To run these cases in the Supreme Court of Canada is hundreds of thousands of dollars. All I'm saying is that they could be better spent elsewhere.

Time has not permitted me — a number of things — to sit down and really consider all the minor tweaking that would streamline the process a lot quicker. It would get back at some of the principles that Justice Oppal found important, like expedition through these processes. These things are hard on police officers, for example, with their families. They're under public scrutiny for their misconduct. By and large, they want to get these issues resolved and all this procedural wrangling and even….

How do you conduct a hearing? In criminal law, I know how to do that. In civil law, there are rules. When I first read the Police Act and went in on my first court cases, I had to confess that even though I'd been in the courtroom for 25 years, I wasn't sure if I even had the right to cross-examine anyone here. How do you do this? That could be much clearer. Instead of relying on developed common law or case law in this field, just legislate it.

How do you do this? Well, the commission counsel stands up and calls evidence. The other side cross-examines, re-examines. That's how confused I was when I went there. I didn't know that. I'm still not certain that's figured out — how you conduct these things. When I read Mr. Kelliher's transcripts, that was basically how those public hearings progressed in the traditional sense. It really depends on who you're against and their views of how you proceed. I think that would be of great assistance to any adjudicator and counsel in trying to judge a case.

B. Locke: Mr. Adie talked about the high level of autonomy and the authority the commissioner has. Do you think, given the complexity of the interests and the diversity of those interests, that should be, perhaps, a panel rather than an individual?

D. Urban: In fairness to the commissioner, when I talk about rebar, I mean that, but given the power and the way it's set up in this model, you need a superhuman to have all the qualities. I'm not that person, for example, but I'm sure there are some out there that have the qualities to really do this right.

It's an issue I've thought of. I thought that one possibility in dealing with taxpayers' money and efficiency and what not is to take some of your special order-in-council outfits, like the police complaint commission, and amalgamate them into one like the ombudsman and maintain deputies at each different discipline that have a special expertise.

We've had some great people in that position in the past, very competent and highly moral people such as Owen and others. That's really all it takes in order to exercise discretion, which is the ultimate thing, not how you organize training sessions for the police or what conferences you're going to go to and those sorts of things. Those are not important. The ultimate, important thing here is a fair and independent exercise of discretion based on the rule of law, and you don't need much other than basic human qualities in order to exercise that discretion fairly.

The other idea I had that I liked about the amalgamation was that you insulate, for example, the ombudsman from direct or indirect improper influences or from being too close to the police. Let the deputy, if necessary, be close to the police and close to complainants and things of that nature. Because the ombudsman's job is so diverse, that extra layer of insulation is inherently built into that kind of model, but it's not the Oppal model. As I said earlier, I respect the work of the Oppal commission, and I respect his recommendations. With minor tweaking, I think it's still saveable — costly, but saveable.

B. Locke: Section 50(2)(h) talks about conducting reviews of the complaint process and making any recommendations for improvement of the process in an annual report. I wonder if you've seen the annual reports of the police complaint commission.

B. Locke: Oh, okay. So you didn't review them when he would make his annual reports?

D. Urban: Not in detail. The commissioner and I were at odds about legislative change. For example, when Doern and Jones happened, it identified a number of areas, and I made recommendations at that time to advance legislative change and not necessarily wait for the appellate court.

B. Locke: There's another section, section 50(3)(e) and 50(3)(f), where they also give the police complaint

commissioner the authority to make recommendations to the Attorney General. I wondered if you ever heard of him ever utilizing that avenue and making those kinds of requests or recommendations to him.

D. Urban: Yes, he has, I think, and more so at or just after the time that I left. He started putting some formal lists together for submission. It's not that it has been ignored.

B. Locke: Also, in talking about the Frank Paul case, Mr. Adie mentioned that the commissioner requested that the AG hold an inquiry and that the chief coroner hold an inquest, even though he had the authority to hold a public inquiry. Do you know why he did it that way?

D. Urban: In fairness to Mr. Adie, it was the Solicitor General he sent it to.

I would love to know the answer to that. I've never understood, from the very first dealings with the commissioner, why he has taken this position in this case. Why has it not interested him? I don't know the answer to that.

B. Locke: Do you think his feeling towards the Anthany Dawson case was similar to the Frank Paul case?

D. Urban: I can't speak for him, but he did have different considerations in the Anthany Dawson case.

One consideration, if I were attempting to exercise my discretion and looked at section 60(5)…. One thing that the Anthany Dawson case had that these other cases don't have, like the Paul case and cases like that, is there had been a very long and intense public inquest. Many witnesses were brought forward and cross-examined, their evidence challenged and what not. I know an inquest serves a different function than a public hearing under this act. All I'm trying to say is that most of the facts were publicly aired, so if you look at the public view, the public can make decisions as to what the police did or not, whereas Paul is silent; the public doesn't know.

J. Nuraney (Chair): Just to continue on that thread, were the police officers disciplined in the case of Anthany Dawson?

J. Nuraney (Chair): We had the family members here at one of the submissions. They said they had requested a public hearing, which they never got. You were not involved with that file?

D. Urban: No, I had nothing to do with that. The file had been monitored by Bill Summersgill in our office. I think he attended most, if not all, of the inquest proceedings, but he did not report to me. He reported directly to Don Morrison. Then the request for the public hearing came after I left, so I don't know what happened.

P. Wong: In the Province today there's an article by Barbara McLintock stating that Justice Oppal had said that he can understand why some people think civilian oversight of police operations is still not strict enough, but he doesn't agree. He further said that this legislation was a compromise — a very workable compromise.

In reviewing the many cases you have presented, it appears that Commissioner Morrison, while carrying out his duties, has conducted them with excessive compromise — for instance, with the Vancouver police. Do you think he might have a misconception or misinterpretation of the act — that he has to exercise his rights in a way, trying to make compromises with the police?

D. Urban: I read that as well. I wasn't exactly sure what Justice Oppal was talking about, about the workable compromise. I think what he was referring to was when, in the course of his inquiry and research, he was looking at the various models throughout the world and within this country and even within this province, between, for example, the RCMP and municipal forces.

I think what he is saying is correct: there is no perfect model. By trying to draw the best from the various models — though the police really did not want to buy in, at least wholeheartedly, to the concept of civilian oversight — the model he came up with as being a just model was, in fact, that workable compromise and that the police gave in somewhat. It's not like complainants were giving in, because it's pretty hard for them to be a lobby group to present a united front in that regard.

Do I think that Morrison has compromised his position in dealing with some of the complaints? My answer to that is yes, I do. I think the Paul case is a clear example of that. I think time will tell that Phillips was another compromise case.

P. Wong: Do you think the Ministry of Attorney General itself needs further tightening up of the spirit of the legislation to avoid any possible misinterpretation?

D. Urban: Well, there are duties — I forget the section numbers — and responsibilities for the commissioner other than just exercising the discretion to hold or not hold a public hearing. There are positive duties. Education is one of them. Getting input and giving input to the community is one. The legislation is there for that. It's a question of having the right commissioner to create the right balance in performing the duties provided statutorily.

P. Wong: In tab No. 19 you wrote a letter to one of the lawyers. Are you of the opinion that the lawyer who intervened in the press release was, in fact, in a possible breach of the code of ethics in the Law Society?

D. Urban: That was what my view was. That was why I phoned that lawyer: to tell him I was concerned — on a specific case as opposed to generally talking about policy — that he would talk directly to the commissioner when I was counsel on that case. Did I complain to the Law Society? I did not complain to the Law Society. Nor did I complain the second time, when I wrote the letter.

P. Wong: Would that be one of the reasons that could be brought to the attention of the society in respect to that?

D. Urban: It can be brought up to them as a complaint, just like any other legislative body under the Legal Profession Act. I chose not to do it.

B. Locke: I wanted to know what you thought the office of the police complaint commissioner was doing for community outreach, especially with respect to tribal police agencies. Do you think the commissioner did his best to ensure that those people were included and understood the process?

D. Urban: The best person to get that information from is Marilyn. My view is that he did little for the common people. Yes, every once in a while he'd go out to some important function, and visible minorities would be there. But did he do it for them or because the optics were good for the commissioner? Because there was little, if any, follow-up by him subsequently and a deliberate thumbs-down on Marilyn and her program, I cannot help but conclude that that responsibility was lightly viewed by this commissioner.

D. Urban: I'm sorry. Tribal police forces was a matter of concern to me, again, which I expressed, as a matter of fact. Bill MacDonald is the one charged with that responsibility. In fairness, for economic reasons or whatever, some of these police forces didn't fare too well. Bill MacDonald has made some trips, and I know there are some plans to make trips. I know they have taken some steps to invite the one tribal force to come to these learning environments that are repeatedly put on by human resources and provided by the commissioner's office. Things appear to be getting better in that regard, but certainly in the eight months that I was there, there was absolutely no serious effort put in by the commissioner. Very much like Marilyn in her outreach program, what little did happen was at the instance of Bill MacDonald.

D. MacKay (Deputy Chair): Did you have a job description when you went to the office of the police complaint commissioner?

D. MacKay (Deputy Chair): Was it to give legal advice to the office, or was it to conduct hearings?

D. Urban: It was a combination of a whole number of things — to provide legal advice. What they were trying to do was look at the economic feasibility of having in-house counsel as opposed to ad hoc counsel at a very high hourly rate. They wanted to experiment with that. They also wanted to experiment with continuity of files to create a flow, and that's why I was brought in. The job description they had at the time encompassed many things: get precedents and systems together, appear in court, give advice, meet and liaise with chiefs of police and interest groups such as the B.C. civil liberties organization.

D. MacKay (Deputy Chair): It sounds like there was an insulation factor built into the job description from your perspective.

D. MacKay (Deputy Chair): I just want to follow up on that a bit more. You're a solicitor. The deputy commissioner, I believe, is also a lawyer.

D. Urban: At least, she wasn't when she came on, because she came from out of province. I mean, the nature of her work in the past was such that you did not necessarily have to be a member of the bar, working in the police organizations where she had worked — police relations and things of that nature.

D. MacKay (Deputy Chair): I just want to follow up on that. You talked about different levels of insulation. I guess what I want to ask is: given the complex and sensitive nature of those decisions that the commissioner has to make…. You've had input into it, the deputy commissioner's had input into it — and, I'm assuming, the investigator. The commissioner at one time would sit down and discuss some of these files. The decisions that were made and we're hearing about now weren't always agreed to by all the parties.

I'm wondering: if there is not consensus among those people who are paid to look after the running of that office and to make those decisions, would it not make sense, if the four — the investigator; the counsel, like yourself; the deputy; the commissioner — could not agree on that issue — "We should not have a public hearing," or "We should have a public hearing…."

Should there not be some sort of a team concept to make that decision, as opposed to one man?

D. Urban: Well, in Mr. Morrison's first press release, or the one that came directly from his office, that was his attack on Matt Adie — that Matt Adie came before you and told you what he did, his motive to give you misinformation being that he was unhappy because his opinion or advice was not accepted by his superiors who have the task to make the ultimate decision.

Frankly, I believe the Oppal model is right in the sense that the buck has to stop. One person has to make that call, whether it's the ombudsman with the added insulation or this commissioner with the basic values I've been talking about. Someone has to be at the helm. They have to be in charge. They should not be lightly rejecting the opinions of learned people in that office like he does and without even responding as to why he's doing things. That's what's wrong with it.

Part of the problem with the model — and it's absolutely clear when you look at the Paul case — is what Morrison has talked about all the time: "I am the police complaint commissioner. I am only accountable to the Legislative Assembly." Because of that, there isn't any real accountability for his decision-making that I can see. To say that this is the place to which he is accountable is a pipedream. How would anyone on East Hastings Street, let alone a Mi'kmaq Indian from New Brunswick, ever avail themselves of the only remedy that's available to review any commissioner's decision? It's not a real one.

Respondents have rights of appeals — a right to take matters into court as Jones and Doern did in front of Justice Harvey and in other cases — but your complainants under this model have no rights. That's why you need a strong, highly moral commissioner in this model.

D. MacKay (Deputy Chair): Let me just take you back to one step prior to the commissioner signing off, saying: "There will not be a public hearing. This matter is now concluded." Had there been a step prior to that wherein the people that took part in the decision-making had signed off, saying, "We concur that a public hearing is not warranted in this case," and counsel, the deputy commissioner and the commissioner signed off on it? That way there would be some method of determining that the people in the office concur that that's the proper action. The commissioner can then submit his report, saying there will be no public hearing on this, knowing full well that he's got the support of senior people in his office.

Would that have prevented the issue that we're talking about on the Paul case today where he made a decision on such a contentious issue and ignored senior people in his office? Do you think that might have prevented that from happening if he had to get the concurrence of senior staff in his office to sign off and say: "There will be no public hearing"?

D. Urban: I don't see that as a workable solution. It would be somewhat akin to telling the Attorney General or some other minister or deputy minister that they need the concurrence of their senior people. The Attorney General is elected and appointed, and that's the job. Mr. Morrison is appointed, and that's his job — to be independent and impartial. I think the answer is not consensus; the answer is basic human values and, perhaps, a better accountability mechanism. You can't do this every three or four years. Otherwise, what's a person supposed to do? Put it on the list to bring it into the House and do it?

I don't think the poor and the disadvantaged people, people with language barriers and people that don't have money to hire guns can ever bring their true concerns here. They are the ones that Oppal and this committee, in the beginning, identified as the most vulnerable people, the people most vulnerable to the bad police — not the good police but the bad ones. I think it's got to be left with the individual but, perhaps, looking at the accountability aspects.

R. Lee: From the presentations we learned that there is a lot of liaison between the commissioner and the police. However, we also heard that the complainants are not getting access to the commissioner. Is that your experience in office?

D. Urban: In my eight months there, I didn't see any complainants getting taken out for lunch and having it paid for with the public dollar — that's for sure. It clearly isn't a two-way street.

I don't know about the new deputy, because I've had very few dealings with her. Speaking of the people that worked in the office when I was there, my view of them was that they were highly principled, intelligent and decent people. I have personally observed them bending over backwards on many occasions, on the phone and in person, to people who had come in and complained.

As we know, in life there are some people that perhaps have a disability and just don't understand things, and people that have anger management problems and just won't let things go, even though the process is done properly. Those situations are very rare. I have never in my time there seen anyone under the commissioner ever act…. I have not witnessed them acting inappropriately towards people.

As a matter of fact, I remember thinking on a number of occasions: "You people sure have more patience than I in dealing with some of these people." But there are simply people that cannot be pleased, and that's just a fact of life.

B. Locke: I just wanted to ask a quick question on the dispositions. If you look at all of the hearings and the decisions that he's made, they're all over the map. Do you have any comment on that and how they relate to other jurisdictions?

D. Urban: Well, if one wants to compare it to what happens to police in Saskatoon who do things like

what happened to Mr. Paul, I think they take a much different view than what we take in this province.

I was shocked when I came to the commission to find how inconsistent and light some of the penalties are for some of the police misconduct that has been found by a board or an adjudicator. It's quite shocking. If you look at the Paul case, it was a one-day suspension for that — a dead person — and two days for the other.

I might add, as well, that that sergeant had a number of prior complaints. He had been dealt with by his police authority on either four or eight — somewhere in there — prior occasions for neglect of duty. It's not like that person was a first offender. In these situations you sit back and say: "Two days. Two days!" One of the factors under section 60(5) is whether or not what the police authority did is adequate.

I think the difficulty, from what I viewed of the commissioner's reaction to things, is that so much depended on what the police authority themselves did and why they did certain things. That would often dictate the path the commissioner would follow. That's why there isn't always rhyme or reason between different cases as to what is appropriate or is not appropriate.

B. Locke: If I could just go further, can you comment on the consistency between the different police jurisdictions, like between Saanich and Vancouver and New West and maybe some aboriginal…? Are they all over the map? Or do you see them…?

D. Urban: I think, generally, they are. The Saanich police, which I have a tremendous amount of respect for, clearly tend to look at minor transgressions in a serious light. I mean, a police officer who doesn't show up for court on a traffic ticket gets more of a reprimand in Saanich than these officers in the Paul case. There's a glaring example.

J. Nuraney (Chair): One final question from me, Mr. Urban. Given the fact that this act came into being in '98, I believe, the police commissioner did not really have any precedents to fall back on. With no track re-cords of these kinds of cases or complaints, the handling of them was totally a new territory. Would it be fair, perhaps, to say that it was more a question of bad judgment than not wanting to follow the procedure to its final end of justice?

D. Urban: I've been involved at ground zero on a number of organizations, including the war crimes tribunal. I still remember back to that day, showing up in The Hague. I was very happy I had brought with me a briefcase that had pens and paper in it, so I had something to start with in its infancy.

Like any other new organization, there are obviously growing pains. A lot of the mistakes made are absolutely to be expected. There are going to be more mistakes made, because everyone there is a human being, but what Mr. Adie and I are talking about aren't growing pains. Those are basic human values.

I would like to thank you, Mr. Urban, for giving us quite a bit of your time this afternoon and laying before us some of your concerns, including your office and this process. I really do want to thank you. Also, I would like to just put the proviso — just in case we need you to come back again to throw some more light as we get more into the specifics: would you be willing to come back before the committee?

D. Urban: Yes, unless, as a result of today, something happens to me. If summonsed, I certainly will not ignore the summons. I think the work that is being done here is very important work. From what I've read in Hansard, I admire the members of this committee for having the desire to search for the truth and to put as many hours into it as you do. I was mentioning to Kate that she's a lady of boundless energy. I wish you luck. If need be, you can summons me, and I will be back.

Committee Staff:	Wynne MacAlpine (Committee Research Analyst)

REPORT OF PROCEEDINGS (Hansard)

SPECIAL COMMITTEE TO REVIEW THE POLICE COMPLAINT PROCESS

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE
TO REVIEW THE
POLICE COMPLAINT PROCESS