Family, community of Stacy DeBungee caught in legal wrangling as they search for accountability in his death

Months after an independent review found that Thunder Bay police failed to properly investigate the death of a First Nations man, his family and community members are facing a new legal hurdle in their quest to see someone take responsibility in a city where police continue to say they are committed to repairing their long-fractured relationship with Indigenous people. 

Last March, CBC's The Fifth Estate reported that Ontario's Office of the Independent Police Review Director (OIPRD) found "neglect of duty" in its investigation of a complaint launched by Stacy DeBungee's family and his community, Rainy River First Nations, after police declared the 41-year-old's death non-suspicious within hours of finding his body in Thunder Bay's McIntyre River in the fall of 2015. 

The OIPRD's report also concluded that racism may have influenced the police officers involved to "prematurely" conclude "that DeBungee rolled into the river and drowned," rather than investigating a series of potential leads that could suggest homicide.

Those included another person's ID found at the scene, a witness who told police he'd seen an altercation on the river bank and an alleged deathbed confession by a woman who claimed she had pushed DeBungee into the river.

The Thunder Bay Police Service is required to hold disciplinary hearings looking at the conduct of the three officers named in the OIPRD report, but the province's Police Services Act requires that they be served notices of hearing within six months — a timeframe that has long passed due to the length of the OIPRD's investigation.

To proceed with a disciplinary hearing after six months, the Thunder Bay Police Services Board must grant an extension, deeming the delay reasonable. 

According to court documents, the board determined that it might be perceived as biased in making such a decision, so, in April, it asked the Superior Court of Justice to appoint a neutral third party to act on its behalf.  That request was granted, so a retired judge, Lee Ferrier, took over. 

Ferrier called a meeting in September to hear submissions to help him decide whether or not to grant the extension and allow a disciplinary hearing to proceed, but determined that it should happen in-camera (without public access).  If he decides to grant the extension, the disciplinary hearing would happen in public, which is normal procedure to ensure transparency under the Police Services Act. 

But if he decides that that amount of time that has passed is unreasonable and that the officers, as a result, should not face a disciplinary hearing, that would be the end of the case.

It's that latter scenario which scares Rainy River First Nations Chief Robin McGinnis — and the reason he believes every step of the process should be out in the open. 

"I'm in disbelief," McGinnis said. "The fact that they're trying to make it a private hearing ... kinda goes against the whole thing we've been trying to do and make it public about the things that are happening here with the Thunder Bay Police Service, right?" 

"We've spent a substantial amount of money to make it public of what happened and how easily it was thrown under the rug and, you know, how easily it was deemed to be a non-suspicious death." 

'Gas on the fire'

CBC, which has covered DeBungee's death along with many other complaints that the Thunder Bay Police Service has  dismissed the deaths of Indigenous people as accidental or drug or alcohol-related, rather than investigating them as possible homicides, also objects to the meeting being held in-camera and took its case to the Ontario Superior Court of Justice in Thunder Bay on Sept. 25. 

The lawyer representing CBC, Ryder Gilliland, told Justice Helen Pierce that "the public right to know will be lost" if the meeting goes ahead in-camera. 

Julian Falconer, the lawyer representing DeBungee's family, as well as Rainy River First Nations, argued that even though police services boards may normally make decisions about whether to grant extensions in private, the "stakes" in this case are too high. 

"Understand we're at a threshold," Falconer said. "It is open to Mr. Ferrier to bring an end to this entire proceeding, which would be a stunning setback for efforts at accountability in the death of Stacy DeBungee." 

That in turn, he said, would worsen the mistrust Indigenous people already feel toward the Thunder Bay Police Service — something police have publicly said they want to work on. 

"The gravity of a decision by Mr. Ferrier shutting down the process, were it to happen in secret, would do untold damage to an already very difficult and divisive situation," Falconer said. "I can only describe it as gas on the fire." 

But lawyers for the Thunder Bay Police Service, as well as the lawyer representing the three officers in question, argue that Ferrier made the legally correct decision to protect the officers' right to confidentiality up until they are served notice, as per the Police Services Act. That includes the discussion around whether or not the extension will be granted for the officers to be served that notice. The officers should not be stigmatized before they've even been charged with anything, the lawyers argued. 

A lawyer for the OIPRD also opposed the CBC's argument, saying that if the court grants a stay against the meeting being held in-camera, it will further delay the case and create even more risk that an extension won't be granted.

"In that case, the public would never have the opportunity to hear the evidence against the respondent officers and know the outcome of the allegations against them," the OIPRD argued in its court submission.   

But Falconer disputed that, saying DeBungee's family and community are prepared to live with a delay in favour of the "healing powers of transparency" throughout the process. 

Justice Pierce is expected to deliver a decision soon, although no date has been set.