Police officers allege union told them not to keep notes after B.C. man's death

Questions about conduct of Vancouver police union Vancouver's police union is being accused of interference in a 2015 misconduct investigation surrounding four police officers.

Four of the Vancouver police officers involved in the violent 2015 arrest of Myles Gray – which ended with the 33-year-old dying in handcuffs – claim they were directed by their union not to keep notes about what happened, in violation of department policy.

The officers' allegations are outlined in a 278-page investigative report, prepared for B.C.'s Office of the Police Complaint Commissioner, into possible police misconduct on the day of Gray's death.

One officer suggested former Vancouver Police Union president Tom Stamatakis, who now heads the Canadian Police Federation, personally advised him against fulfilling his note-taking duty. The other three said they couldn't recall who gave them the directive, though one claimed current union president Ralph Kaisers was present at the time.

'THE OPTICS ARE APPALLING'

Rob Gordon, a Simon Fraser University professor and former police officer, called the allegations against the union disappointing – but not surprising.

"What's been going on in the last couple of years is an increasing militancy on the part of police associations or police unions," Gordon said. "In some instances I think they've gone over the top, but they obviously feel their members need better protection than has hitherto been the case."

The duty for officers to keep notes is both outlined in the Vancouver Police Department's Regulations and Procedures Manual and established in a 2013 Supreme Court of Canada decision.

Gordon called note-taking a "crucial aspect of any police investigation," and one that ensures there is reliable evidence available when needed. He declined to speculate as to why a union representative might advise officers against writing down their observations.

"It always used to be the case that offenders were cautioned not to say anything to a police officer if they didn't want it ultimately appearing in court. Now you've got a reversal of that, and police are being told not to take notes," Gordon said. "The optics are appalling."

CURRENT, FORMER UNION LEADERS RESPOND

In a short statement to CTV News, the current head of the Vancouver Police Union declined to comment on the officers' allegations.

"I wish I could talk about this case," Kaisers said. "However, we are bound by confidentiality under the Police Act and can not speak to it."

Stamatakis said he had a responsibility, as then-president of the union, to provide support to the officers involved in Gray's arrest, but denied he would have directed anyone to violate department policy.

"I can say that this is not advice that I would have provided on behalf of the Vancouver Police Union," Stamatakis said in an email.

According to the investigative report, which was prepared by Sgt. Robert Nash of the Richmond RCMP, one officer recounted that he was about to begin writing notes when someone from the union intervened. He said he was waiting on the seventh floor of the Vancouver Police Department's Cambie Street headquarters in the wake of Gray's death when the interaction took place.

The officer said he "would have made notes if he hadn't been provided direction from the union," according a summary of his account.

Gordon suggested receiving that kind of advice would still be a poor excuse for an officer to neglect their duties.

"Ordinarily, officers would comply with the policy to avoid punishment," Gordon said.

"For them to turn around and say, 'I'm not going to do that because my union told me not to' is absurd."

OFFICERS FACE DISCIPLINARY HEARING

The four officers who claimed to have received that direction are among six now facing charges under the Police Act for their alleged failure to take notes in the Gray case.

They are also among seven officers facing more serious allegations of excessive use of force against Gray.

The Vancouver officers were responding to a report that a man had sprayed a woman with a water hose in neighbouring Burnaby when they encountered Gray, a business owner from the Sunshine Coast, on Aug. 13, 2015.

In the ensuing altercation, Gray suffered an array of serious injuries – including broken bones, a dislocated jaw, and hemorrhaging in his brain and testicles – before going into cardiac arrest while both handcuffed and hobbled at his ankles.

He was so badly wounded, an autopsy was unable to determine his cause of death. Coroners ultimately found it probable that Gray died from a number of factors that could have included his various injuries from police, the fact that he had a slightly enlarged heart, and the presence of kratom – a plant-based substance that can act as a stimulant – in his system.

NO CRIMINAL CHARGES

The arrest was initially investigated by B.C.'s police watchdog, the Independent Investigations Office, which faced pushback from law enforcement. At one point, the IIO had to file a court petition to compel an officer's co-operation.

After a lengthy investigation, the watchdog submitted a report to Crown counsel in 2019, but prosecutors said they were unable to pursue charges because of issues with the evidence.

The only witnesses to Gray's death were the officers on scene, and the B.C. Prosecution Service said they provided "incomplete and, in several respects, inconsistent accounts of the detail and sequence of events" surrounding the incident.

It's unclear whether the officers' alleged failure to keep notes had any impact on the case.

IIO chief civilian director Ron MacDonald told CTV News his investigators do not normally view daily notes written by officers who are suspected of wrongdoing. Since officers are required to take the notes as part of their work, the IIO considers them compelled speech.

"Our position is that the Canadian Charter of Rights and Freedoms protects those who are the subject of an investigation from providing compelled testimony," MacDonald said. "We can't compel them to be in an interview with us and we can't compel them to give us their notes."

Witness officers, on the other hand, are routinely required to turn over their notes, MacDonald added. He said the IIO was ultimately able to obtain statements, which differ from daily notes, from all witness officers who were present.

In his email, Stamatakis stressed that his former union did not hinder the IIO's work investigating Gray's death.

"Nothing our union did on that day had any impact or effect on the course of the investigation," he said.

The Office of the Police Complaint Commissioner's investigation did not begin until the IIO's case was concluded and prosecutors had declined to pursue charges. If any of the officers are found to have committed misconduct under the Police Act, they could face a range of disciplinary measures up to and including dismissal.