Inquest report slams policing failures on Manitoba First Nation

An inquest report into the death of a man in a northern Manitoba First Nation holding cell provides a damning list of failures and " very concerning" practices that need to be changed.

Brian McPherson, 44, died in the early morning hours of Aug. 27, 2011, while in custody at the Garden Hill band constable holding cells. Though his cause of death was found to be sudden heart failure, an inquest is mandatory when anyone dies in custody to determine what can be done to prevent similar deaths in the future.

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According to the inquest report, released this week, the holding cell was in poor condition, far too small and overcrowded.

It is foreseeable that others unlawfully detained and kept in such conditions could die as well if action is not taken.- Inquest report

The cell's door was secured by a 2x4 board and the viewing port was covered by tape, paper and cardboard, preventing the guards from looking in to check on prisoners. The only method to check prisoners was to open the cell door but guards are not permitted to do so unless there is an emergency.

The only other way to check on the prisoners was through security monitors, which had low resolution black-and-white monitors that provided dull and blurry images and had no audio.

Along with McPherson, seven others were crowded into a room measuring 3.32 metres by 2.67 metres, a room with hard walls and floors and no bedding.

On the evening of Aug. 26, 2011, McPherson and some friends were arrested at his home for drinking home-brew booze, known as superjuice. Garden Hill, an isolated community on the shore of Island Lake, about 500 kilometres northeast of Winnipeg, has a prohibition on alcohol.

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At 8 a.m. the next morning, another prisoner advised guards that McPherson was non-responsive. Attempts were made, unsuccessfully, to revive him.

"It was clear he had been dead for some time with rigor mortis evident in Mr. McPherson's limbs," the inquest report states, noting CPR could not be administered because McPherson's jaw couldn't be opened.

Lack of training

The inquest heard testimony from a number of "securities" — volunteers who assist band constables in policing the First Nation. Every one of them spoke of having no training in law enforcement.

The inquest also heard band constables never obtain warrants from judges or justices and use photocopied letters of authority from the band council to enter people's homes. 

Many of them said they would not have arrested anyone at McPherson's home that night if they had not been ordered to do so by band Coun. Wayne Harper, a cousin to McPherson.

The people at McPherson's home were described as polite and co-operative — no one was causing any trouble or was so drunk as to not be able to care for themselves, the inquest heard.

That testimony was echoed by band constable Shannon Beardy, who, despite being the officer on duty, had never received training in law enforcement. She once had "on the job" training in self defence and only received first aid training a year after McPherson's death, she said.

Councillor's influence cited

Like the volunteers who assisted her, Beardy said she would not have arrested anyone at McPherson house but Harper was insistent.

He splashed the superjuice into the face of each person at the party before ordering Beardy to take them into custody, according to the inquest report.

Harper, who was in charge of the justice portfolios as councillor, agreed the people at the party were polite and co-operative but said he poured the superjuice on them out of anger, chiding them for drinking it and warning it would kill them, according to the inquest report.

Harper maintained it was his view that the prohibition bylaw requires the arrest of anyone who has drank alcohol, regardless of the level of intoxication.

In the end, the inquest concluded "there is little doubt" McPherson would have died, regardless if he was arrested or not. However, there is clear evidence he was not lawfully arrested and should not have been detained "and certainly not detained in cells that were overcrowded and in an unacceptable condition," the report states.

"It is foreseeable that others unlawfully detained and kept in such conditions could die as well if action is not taken."

The inquest report urges First Nation safety officers or band peace officers be properly trained and free from the direction of "untrained individuals" such as band councillors.

The report, which noted no evidence of the presence of a defibrillators in the building housing the detention cells, calls for the proper construction and maintenance of holding facilities, "along with a system of periodic inspections to ensure facilities are maintained to a proper standard of safety and hygiene."

Who's responsible?

The problem, the report states, is that no one seems willing to take responsibility.

"The evidence in this inquest has revealed that a stumbling block for the implementation of past inquest recommendations respecting the condition of band-run cells is that no senior level of government has taken responsibility for the maintenance, upkeep and supervision of detention cells on band land.

"The province has taken the position that such cells were part of the band constable program and hence outside the jurisdiction of the province. Canada takes the position that it provided funds to the band constable program and had no supervisory duty."

The report notes that in 2013 a solution seemed to be in place but it "unraveled" for unknown reasons. An arrangement had been made for an RCMP trailer, with up-to-standard cells, to be moved onto the reserve.

"The court is concerned that part of the reason may be the First Nation's unwillingness to discontinue the practice of untrained and unauthorized band constables detaining people for band bylaw violations," the report states. "It must be clearly stated these are unlawful detentions and should stop."

The inquest judge also took exception to witness testimony that people detained in the holding cells have had $75-$100 taken off their welfare cheques.

"The deduction of monies from detained person's welfare cheques without due process is very concerning," the report states.

Until RCMP cells are put in place and the RCMP accepts responsibility for maintaining and operating those cells, the province must step up to inspect the current holding cells "as part of its jurisdiction to administer justice within its borders," the report states.

"The fact that such substandard detention cells exist and are being used cannot be ignored."

The inquest judge also called on improvements to:

• Video surveillance

It is common in this day and age to walk into any commercial establishment and see oneself in dazzling colour on a high definition security camera television screen. It is hard to understand why this type of widely available technology is not being employed in detention facilities. All witnesses who were guarding the prisoners on the date of Mr. McPherson's death spoke of the difficulty they had observing the prisoners with such poor resolution video feeds. A number of them agreed they may have seen the blood from Mr. McPherson's nose and mouth if they had a proper high resolution colour video feed. The addition of audio feeds would further assist guards to determine if there are sounds, (i.e. snoring or breathing), coming from individual detainees.

• Record keeping

The record keeping at this detention facility left much to be desired. The log book had very minimal information concerning each detainee. Essentially it was limited to the person's name, the names of the band constables and securities that lodged him, when he was lodged, and when he was released. Marginal notes were made about how long the individual was to be held or whether they were to be released to a particular person. Very occasionally a note of personal items taken from the detainee would be recorded. Although each witness maintained they took notes of checks done on the prisoners every 15 minutes, no such records were ever produced and certainly no such notations were kept on the log book. At best the system was a hodgepodge not in keeping with any professional standard.