Office of the Police Complaint Commissioner British Columbia, Canada Fair Independent Principled NOTIFICATION OF INADMISSIBILITY OF COMPLAINT (Pursuant to 5.83 (1) of the Police Act) April 7, 2014 OPCC File No.: 2014-9505-01 TO: Mr. Benjamin Robinson (Complainant) AND TO: Chief Constable Jim Chu VPD Professional Standards Section On March 18, 2014, our of?ce received Mr. Benjamin Robinson's complaint outlining his concerns regarding the alleged conduct of Inspector Lawrence Rankin and Detective Constables Glenn Burchart and Ryan Smith of the Vancouver Police Department. In ?ling his complaint, Mr. Robinson relied in part on information received from a recent news story reported by the CBC and from the disclosure of documents he has received from an ongoing criminal prosecution in which he is accused of perjury. Mr. Robinson alleged that the rules of evidence and the collection of evidence have been ignored in this case. Additionally, Mr. Robinson alleged the involvement of Mr. Wally Oppal, Q.C., raised the questions of witness tampering. In his complaint, Mr. Robinson raised concerns relating to two interviews in which Ms. Norgard participated and in which Mr. Oppal was allowed to be present. The ?rst interview was conducted by a lawyer and the second interview was conducted by the members of the Vancouver Police Department referred to above. Mr. Robinson also raised concerns in relation to the interview of Mr. Dietrich by the of?cers, taking issue with respect to the manner and methods employed. Mr. Robinson stated his complaint includes but is not limited to the three of?cers named in his complaint and any other of?cer who reviewed or contributed to the investigation. Floor, 947 Fort Street PO Box 9895 Prov Govt Victoria, British Columbia V8W 9T8 Tel: (250) 356-7458 Fax: (250) 356-6503 Toll Free 1 877-999-8707 -1- Website: Page 2 April 7, 2014 2014-9505-01 In particular, Mr. Robinson summarized his concerns as follows: ?The VPD member questioned Dietrich on a meeting that he had alleged to arrange for the members involved in the YVR taser incident. That the VPD member asked RICH to not inform Bill Bentley about what he was investigating, as it would be considered 0bstructi'on of Justice. "The o??icer let Wally Oppal in the interview, the oliticer showed individual photograph of the members (no photo lineup lead the witness and ended recording while still interviewing. members did not validate information by requesting shift schedules, travel claims to the Braidwood inquiry etc. from the RCMP. No one requested to view or obtain separation agreements between Dietrich and Norgard. "Wally Oppal '5 presence in both interviews should not have been allowed and i't asks the questions of witness tampering by the formerAttorney General.? In British Columbia, a complaint against a municipal police of?cer or department must be reviewed by the Police Complaint Commissioner to determine whether it is admissible under Division 3 of the Police Act? Process Respecting Alleged Misconduct. If the allegations concern the policies or services provided by a police department, the complaint is then processed pursuant to Division 5 Process Respecting Department Service and Policy Complaints. A complaint may contain elements of both. A complaint, or a part of the complaint, is admissible under Division 3 if: i) the conduct alleged would, if substantiated, constitute misconduct by the member; ii) the complaint is submitted within 12 months of the date of the incident referred to; and the complaint is not frivolous or vexatious. In reviewing a complaint, our of?ce may contact the police agency involved or the complainant to obtain further information that may assist us in arriving at a principled decision regarding the admissibility of the complaint. We are careful not to weigh the evidence at this stage, but in exercising our gate keeping function we must ensure we have considered all the relevant circumstances which provide an accurate context to the matter. In terms of context, it is important to note that Mr. Robinson is an accused in a criminal proceeding, where aspects of the related police investigation form the basis of his complaint to our of?ce. I am con?dent that many of the concerns contained in Mr. Robinson's complaint will be raised and examined in the impending criminal proceeding. Office of the Police Complaint Commissioner British tic-imnbia, Can'ada Page 3 April 7, 2014 2014-9505-01 Decision Police of?cers engaged in the investigation of alleged crimes are afforded a signi?cant degree of deference in relation to the discretion they exercise in the conduct of an investigation. This broad discretion affords investigators the ability to address the exigencies associated with the extensive range of alleged crimes that may be investigated and the unique challenges that could potentially arise in any given investigation. "Wally Oppa/is presence in both interviews should not have been allowed and it asks the questions of witness tampering by the former Attorney General. Mr. Oppal?s presence during the police interview of Ms. Norgard is not prohibited by statute nor common law. It is an exercise of an of?cer?s discretion to determine who may or may not be present during the course of an interview. The presence of an individual other than police during an interview is by no means a common practice, but may be necessary as determined by an investigator. The fact that Mr. Oppal was permitted to be present during the interview, in and of itself, would not constitute misconduct as de?ned by the Police Act. "The o?icer let Wally Oppal in the interview, the o?icer showed individual photograph of the members (no photo lineup lead the witness and ended recording while still interviewing. During the course of a witness interview, an of?cer may exercise a broad discretion in the manner and method of questioning. The fact that an of?cer may have asked a leading question, failed to adhere to a best practice in the course of a photo identi?cation, or spoken with a witness off-record, would not constitute misconduct as de?ned by the Police Act. An investigator who has departed from a recommended practice assumes the risk that their exercise of discretion may have an impact on the admissibility and weight of the evidence obtained as a result. The alleged conduct of the investigators in this matter, alone and in combination, do not constitute misconduct as de?ned by the Police Act. members did not validate information by requesting shift schedules, travel claims to the Braidwood inquiry etc. from the RCMP. No one requested to view or obtain separation agreements between Dietrich and Norgard. The concerns expressed by Mr. Robinson in relation to this aspect of his complaint are best suited to be raised and examined in his criminal proceeding. There is no information to suggest that the investigation in this matter is completed and not still ongoing. This aspect of Mr. Robinson's complaint is speculative and potentially premature based on the assumption that the investigation of this matter is concluded. I am of the view that at this juncture, the conduct as alleged would not constitute misconduct as de?ned by the Police Act. Having reviewed this matter, I am satis?ed that the conduct described in Mr. Robinson's complaint would not, if substantiated, constitute misconduct as de?ned pursuant to s. 77 of the Police Act. Our jurisdiction is limited to those speci?c types of misconduct de?ned in the Act. As I alluded to earlier in this notice, the concerns Mr. Robinson has raised will likely be explored at the criminal proceeding in this matter. If the evidence from the criminal proceeding provides Office of the Police Complaint Commissioner British tjoluznlaia, Canada Page 4 April 7, 2014 2014?9505?01 information that any of the of?cers may have conducted themselves unprofessionally, we would review any complaint Mr. Robinson may lodge with our office at that time. Accordingly, pursuant to s. 83(1) of the Po//'ceActand following careful and serious consideration of Mr. Robinson's complaint, we direct that no further action under Division 3 of the Police Actis required or necessary. Stan T. Lowe Police Complaint Commissioner cc: Anthony Parker, Admissibility Analyst Office of the Police Complaint Commissioner British Coiumbia, Canada