Should the NWT have a new body to oversee its police?

Details of an external investigation into an NWT death in custody, revealed during a recent inquest, raise questions about police oversight in the territory.

A coroner’s inquest in Inuvik earlier this month was the first time many members of the public heard details of the Calgary Police Service’s investigation into the 2021 death of Sylvia Panaktalok while she was in RCMP custody in Tuktoyaktuk.

The full report has not been made public and Cabin Radio’s request to access the document was denied.

Stu Cole, who investigated Panaktalok’s death while he was a homicide detective with the Calgary Police Service, testified at the inquest.

Cole described it not as a criminal investigation but an investigation to gather evidence surrounding Panaktalok’s death, which was then presented to prosecutors. The prosecution service ultimately decided not to press charges against any RCMP members involved.

Cole said it is normal practice in Calgary for the Crown to determine whether charges are laid. According to the Public Prosecution Service of Canada, in the NWT, the RCMP normally decide whether to lay criminal charges.

Jurors at the inquest determined Panaktalok’s death was accidental and the result of alcohol poisoning.

Cole was one of two Calgary homicide detectives, now each retired, who led the external investigation, which involved reviewing video footage of the night Panaktalok was taken to the Tuktoyaktuk RCMP detachment and interviewing witnesses.

He said the two RCMP officers who arrested Panaktalok were not interviewed but provided statements through their lawyers.

RCMP officers involved in investigation

Cole said two different officers from the NWT RCMP’s major crimes division in Yellowknife sat in on civilian interviews as part of the investigation.

“It just seemed to be appropriate to conduct them that way,” he said at the inquiry.

Cabin Radio asked police oversight experts whether the involvement of Yellowknife RCMP in an external investigation of RCMP from another NWT detachment is normal, or whether that could affect its independence.

Kate Puddister is an associate professor of political science at the University of Guelph who has researched police oversight. She said the decision to involve NWT RCMP in the Tuktoyaktuk investigation appeared to be based on the resources available, but added doing so could “raise questions of independence for many, especially the affected family.”

Erick Laming is an assistant professor of criminology at Trent University who researches police oversight and accountability. He said some external investigative models in Canada allow for current police officers to be involved in investigations, giving the example of an officer from Edmonton being part of an investigation of an officer in Calgary. However, he said that approach can raise concerns about independence.

“If you ask most people of the public if that’s a proper system or if that’s really an independent type of system, I’m sure many would say no,” he said.

A spokesperson for the Calgary Police Service told Cabin Radio it follows the model of the Alberta Serious Incident Response Team, or ASIRT, the province’s civilian police oversight agency. Under that model, the CPS spokesperson said, members of the police force under investigation often provide resources and access to information.

“This is common practice during external investigations. Following this model allows for accurate and timely investigations,” the spokesperson wrote in an email.

Michael Ewenson, executive director of ASIRT, said investigations are conducted on a case-by-case basis. He said there’s nothing in the ASIRT model requiring that investigations involve members of another police agency, or that “says that’s a good idea or a bad idea.”

He said members of another police force may be involved if there is a concurrent investigation ongoing, giving the example of someone being shot by police while they were committing a bank robbery. He said members of a police force would not, however, sit in on interviews of other members of the same agency under third-party investigation.

The RCMP said in a statement that any participation of RCMP members in an external investigation would be at the discretion of the agency in charge of that investigation.

“Maintaining public trust is a priority for all law enforcement and is the main reason external agencies are used in such situations,” RCMP said.

“It will be the duty of the external agency to ensure it conducts the investigation in an impartial manner acceptable to both the courts and public alike.”

Why did Calgary police investigate the NWT RCMP?

The RCMP Act mandates that an independent civilian oversight body or external police force investigate serious injuries or deaths involving RCMP officers.

While many provinces have police watchdogs to conduct that work, there is no such body in the NWT. The territory also has no agreement with an existing oversight agency in another jurisdiction, like the one between the Yukon and ASIRT.

Nunavut has agreements with police services in Ottawa and Calgary. While it does not have its own civilian police oversight agency, it amended legislation in 2021 to allow for such a body.

In jurisdictions with no civilian oversight body, the RCMP says it asks an external law enforcement agency to investigate. When there is no alternative available, RCMP said investigations will be assigned to its own members after screening for conflict of interest.

This is not the first time police outside the territory have investigated an incident involving the NWT RCMP.

The Alberta RCMP investigated a 2020 incident involving a woman at Inuvik’s detachment and cleared officers of wrongdoing.

Alberta RCMP also investigated a 2020 incident involving an Indigenous woman at Yellowknife’s detachment that resulted in assault charges against two officers. In an unusual move, the Crown stayed those charges on the third day of trial, stating there was not a reasonable likelihood of conviction.

Civilian oversight of RCMP complaints

While some oversight bodies in Canada are responsible for investigating serious incidents involving police, there are also civilian agencies that separately handle complaints from the public.

Federally, the Civilian Review and Complaints Commission looks into complaints about RCMP officer conduct and can provide recommendations to the RCMP.

Laming, at Trent University, explained the commission largely “acts as an overseer of complaints against police.” He said it will screen whether complaints fall within its mandate, send those that do to the RCMP to investigate, and then review the outcome.

According to annual reports from the commission, members of the public lodged a total of 221 complaints regarding the on-duty conduct of NWT RCMP between 2015-16 and 2022-23. Of those, 186 met criteria under the RCMP Act.

Allegations in those complaints included improper attitude, neglect of duty, improper arrest, improper use of force, mishandling of property, irregularity in procedure, improper use of firearms, improper search of premises and improper person or vehicle search.

During the same period, the commission reported a total of 163 complaints against NWT RCMP were resolved. Of finalized complaints it said, 81 were informally resolved by RCMP, 52 were investigated by RCMP, 28 were withdrawn by the complainant and four were terminated by RCMP, totalling 165 resolved complaints. Cabin Radio could not account for the discrepancy in the total number of complaints finalized.

The commission issued two recommendations to NWT RCMP regarding policy development in 2022-23. One of the recommendations was partially supported and one was not supported by the RCMP.

Should the NWT have its own police oversight agency?

Laming has strongly advocated for every jurisdiction in Canada to have its own civilian police oversight body, saying they can improve objectivity and public trust.

“There’s a lot of problems when you have fly-in teams that come up or come out whenever there’s a situation. That’s precious time that you lose, even if it’s a day or two before investigators arrive on the scene,” he said.

“It’s important to have people available that can mobilize quickly to get to that scene to collect the evidence, to make sure there’s sequestering of officers who may be involved, witnesses who are involved.”

Laming acknowledged that ensuring civilian oversight agencies are properly resourced and maintained can be costly, while the NWT has only a limited number of serious incidents involving RCMP. He said, however, that mandates for such a body could be expanded to include incidents of public interest or concern.

“I always am in favour of just having the bodies, having the support there, the resources,” he said, “because it is showing at least to the public – and to the police – that we do have a proper system that is operating for accountability and transparency purposes.”

Even so, some civilian police oversight bodies in the provinces have faced criticism.

Police watchdogs in Ontario, Quebec and Manitoba have been criticized for a lack of transparency. Meanwhile, BC’s police oversight agency has raised concerns about low approval rates of criminal charges it has recommended to prosecutors.

A 2020 Canadian Press report found the majority of independent investigators are white men who were former police officers. The report said that raised questions about public trust and confidence, particularly from people of colour and Indigenous communities.

To be effective, Laming said a civilian agency needs strong guiding legislation, good investigators, proper support and the authority to lay criminal charges.

He said Canada is “more progressive” than many other countries in having that kind of external investigation framework available.

“In a lot of other comparable jurisdictions internationally, they don’t have these types of systems and if they do, they’re not really as robust as what we have in Canada,” he said. “I think we have some good practices, but I do still think there’s a lot of area for improvement.”

Steven Cooper is a partner at Cooper Regel, one of the law firms behind a class action lawsuit alleging RCMP discrimination against Indigenous people in the North. Cooper questioned how effective police oversight currently is.

“It’s essential but it’s ineffective, and it hasn’t been shown to be effective at changing anything other than an individual officer in an individual case at best,” he said.

Cooper said “there is still far too much homegrown police involvement for external oversight to be useful,” while civilian oversight appears ineffective.

Cooper pointed out that the Prime Minister of Canada and various RCMP commissioners have acknowledged the RCMP has a racism problem. He argued the Civilian Review and Complaints Commission has done little to alleviate the issue.

The RCMP has said it is making “fundamental changes” to address the problem, including an equity, diversion and inclusion strategy, the collection and analysis of race-based data on police interactions, and modernization of recruitment to increase diversity.

Cooper said he hopes the class action – one of three his firm is involved in against the RCMP – will motivate the police force to examine its internal oversight as well as consider external oversight.

Jesse Aubin, NWT RCMP’s Inuvik detachment commander, testified at the recent coroner’s inquest that he would back having a police oversight body in the territory.

“Anything that instills public confidence and trust in us, I would support,” he said.

Justice minister declines to comment

Aubin said the NWT government must ultimately decide how to spend its resources, such as on the creation of specialized units.

In its latest budget, for example, the territorial government committed $1.3 million to create a new territorial crime reduction unit within the RCMP.

“They have many, many priorities,” Aubin acknowledged.

The NWT is responsible for funding 70 percent of RCMP costs in the territory while the federal government pays the remaining 30 percent. The NWT’s minister of justice is responsible for setting objectives, priorities and goals that guide the territory’s RCMP.

Premier and justice minister RJ Simpson declined Cabin Radio’s request for an interview about whether his government would consider creating a civilian oversight agency or signing an agreement with an existing one, such as ASIRT. He referred Cabin Radio’s questions to the Department of Justice.

A spokesperson for the department highlighted the existence of RCMP’s Civilian Review and Complaints Commission as well as RCMP policy regarding external investigation of serious incidents.