The request from the legal counsel for the complainant dated August 27, 2001 followed the criteria set out in section 60(5) of the Police Act in the following manner:

"The complaint in this case is of a punching to the head of a young man who was in medical distress. The use of force was of such a nature that it physically sickened one individual observing it. While the entirety of the consequences of Anthany Dawson’s death may or may not be as a result of police behaviour, nevertheless, the consequences were serious making the entire circumstance of significant seriousness."

"Did Constable Sheldan punch Anthany Dawson while he was in medical distress or not? The truth of this key issue has never been determined. The Inquest as everyone acknowledges was not about the police conduct. All parties to the Inquest were agreed in that. You can see from the transcript that the heart of this issue was never resolved. Indeed, I would suggest that Sergeant Naughton’s report acknowledges that there is a credibility issue which he is in no position whatsoever to resolve.

Therefore, we are left in the situation where a police officer’s conduct at the scene has never been truthfully determined."

"Understandably, Sergeant Naughton could not have recommended disciplinary action nor could Chief Battershill on the basis of Sergeant Naughton’s report. Without a determination as to exactly what Constable Sheldan did, there cannot be any determination of appropriate discipline. The cart cannot come before the horse. There must be a finding of fact of what Constable Sheldan did and then a determination of what discipline flows from that. I note, additionally, that should the findings of fact be contrary to Constable Sheldan’s evidence, that may be a factor to be taken into account in the appropriate discipline being dispensed."

"It has been repeatedly stated that it is for the Police Complaint process to determine what was the nature of the police conduct surrounding the death of Anthany Dawson. The responsibility is, as all sides agree, with your office. I would respectfully suggest that it would shake faith in that office if responsibility were not accepted but were abdicated. If the issue of the force used on Anthany Dawson is not dealt with by your office through a hearing, there will be a negative public reaction towards your office."

"For First Nations people, this is a critical issue. Their relations with the police have not always been on solid ground, and this case only highlights that fact. For this segment of the community, a public hearing is essential to a sense of fair treatment by the police and the Police Complaints process.

However, this is not just a First Nations issue. All members of this community are concerned about the use of force by the police. This has been reflected in repeated newspaper articles about this case… The widespread public interest in this case should not be denied a full and open hearing of the events prior to Anthany Dawson’s death. As I have noted, Chief Battershill has expressed this very sentiment himself on an earlier occasion. That is understandable, as I am sure the Victoria City Police Department is not concerned about public scrutiny through a public hearing.

Finally, the evidence of Sergeant Laur adds to the public concern with regard to the police. The Use of Force Model he testifies to leads to the questionable conclusion that the punching of citizens is appropriate. His evidence, rather than deflating the significance of Constable Sheldan’s actions, only increases the need for an analysis in a public way of those actions."

The request included references to evidence given by some of the witnesses at the Inquest, which concluded on December 1, 2000.

The Police Complaint Commissioner must determine if there should be a public hearing in the public interest. The Police Complaint Commissioner must consider the "public interest" test as set out in section 60(5) of the Police Act, and as amplified in the Policy on Ordering a Public Hearing (see web site at www.opcc.bc.ca), and apply those principles to the circumstances before him.

Section 60(5) of the Police Act states:

(5) In deciding whether a public hearing is necessary in the public interest, the police complaint commissioner must consider all relevant factors, including, without limitation, the following factors:

• The seriousness of the complaint;
• The seriousness of the harm alleged to have been suffered by the complainant;
• Whether there is a reasonable prospect that a public hearing would assist in ascertaining the truth;
• Whether an arguable case can be made that
• There was a flaw in the investigation
• The disciplinary or corrective measures proposed are inappropriate or inadequate, or
• The discipline authority's interpretation of the Code of Professional Conduct was incorrect;
• Whether a hearing is necessary to preserve or restore public confidence in the complaint process or in the police.

The following have provided support letters for the request for a Public Hearing:

Kathryn Teneese Gerald Wesley, and Hemas (Bill Wilson) of the FIRST NATIONS SUMMITTASK GROUP.

Chief Willie Moon, and Chief William Cranmer of the Musgamagw Tsawataineuk Tribal Council.

Mr. Considine, Q.C., counsel for Cst. Sheldon, has also requested an opportunity to make submissions to the Police Complaint Commissioner about the need for a Public Hearing:

The question is whether the Police Complaint Commissioner in exercising his discretion should or can entertain input beyond that set out in the statute, i.e. a complainant may request a public hearing or a respondent may request a public hearing.

An independent tribunal within the meaning of section 11(d) of the Canadian Charter and section 23 of the Quebec Charter must be both independent from government and independent from the parties to the litigation.

The appearance of impartiality is important for public confidence in the system.

To ensure that administrative tribunals make their decisions in accordance with the rules of natural justice, the Court must ensure that the tribunal possesses the freedom to decide matters independently, without interference from anyone at any time

Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision:

The Police Complaint Commissioner must resist submissions from outsiders in arriving at a decision.

What then of counsel for the respondent in terms of the request for a public hearing?

This request for a Public Hearing is brought under section 60 of the Police Act. It does not provide for a "right of response" at this stage.

Is it a relevant factor to consider information provided by outside intevenors under the " Public Interest" test referred to in section 60(5)? And would it assist the Police Complaint Commissioner in the consideration of the "Public Interest" test?

I have considered this and have determined that it is not a relevant factor to consider under the " Public Interest" test nor will it help the Police Complaint Commissioner in applying the public interest test to the facts on hand.

In fact, were I to permit the views of outside interveners to be an integral part of my considerations it might shake public confidence in the complaint process by leading to an inference that the Police Complaint Commissioner is not independent if there were the appearance of outside influences affecting the Police Complaint Commissioner's decision.

There must be an independent application of the "public Interest" test to the totality of facts before the Police Complaint Commissioner.

I have reviewed the complete RCMP investigation file, the complete Victoria City Police investigation file, and the complete transcript of the testimony given at the Inquest.

On December 1, 2000 the Regional Coroner released her findings and recommendations as a result of the inquest into the death of Mr. Dawson.

The jury found that Mr. Dawson’s death was accidental.

1. The jury recommended to the Victoria Police Department that:

• A recurring formatted block in a local newspaper requesting assistance in providing information in regards to an incident where witnesses are required.
• Principal officer should complete a detailed occurrence report at the scene.
• Independent liaison be appointed to liaise between investigating authority and party acting on behalf of deceased and/or counsel,
• A "Critical Incident Review" as per policy definition of the "Critical Incident Review" Policy" be mandatory in all cases.

On August 13, 2001 the Victoria Police Department advised the complainant and the Police Complaint Commissioner of the results of its investigation. The investigation summary stated:

Chief Constable Battershill in his letter to the complainant dated August 13, 2001 stated:

The Public Hearing request relates to one respondent police officer. Specifically, was the use of force used by Cst. Sheldon appropriate in the circumstances of this case?

This is a very narrow issue relating to the conduct of one of the attending police officers. The request does not criticize the conduct of four other attending police officers. However, I would expand this request to include the conduct of all attending police officers.

I found no arguable flaw in the RCMP or Victoria police investigations.

In applying the public interest test as stipulated in the Police Act, the conduct of all attendant police has been considered in this matter.

The issue is whether the force used by the police was appropriate in this circumstance.

I have determined that a Public Hearing will not be arranged and I will address the reasons raised by the Request.

In reviewing the testimony I am mindful of the instructions given to juries in this regard:

I have reviewed the statements and testimony given at the inquest of all the witnesses to the incident, which were referred to by the complainant’s counsel. I have also reviewed the testimony of those witnesses who were not referred to by the complainant’s counsel.

I have concluded that the witnesses were trying to testify to the best of their ability. Where there is conflict in the testimony, I have the obligation to weigh the evidence to the extent necessary to enable me to decide whether there is a reasonable basis on the evidence to warrant arranging a Public Hearing. I have looked particularly to the autopsy report and the testimony of Dr. Grey. The autopsy results do not indicate bruising consistent with a severe blow to the head.

The complaint is always serious when a person dies.

I conclude the police attempted to control the deceased using appropriate but not excessive force.

Police were responding to a call and were required to assist in removing the person to a place where he could receive proper medical attention. It is significant that Mr. Dawson was not being placed in a police wagon, which would have been below the expected standard of care, but in an ambulance under the care of trained Emergency Attendants.

Will a Public Hearing assist in clarifying the truth any more then was discovered in the testimony of the Inquest? I think not. Witnesses were sworn to tell the truth. The fact that the observations differ is not unusual in situations such as this. The finder of fact must assess the testimony and make his or her findings.

I find as a fact that 1) Cst. Sheldan was called to the scene, and assisted in controlling Mr. Dawson and 2) that during the struggle, force was used which to some witnesses appeared to be blows. It was force using hands, fists, arms and bodies.

I have concluded that the force used was not excessive in these circumstances.

Discipline does not flow when a default is not made out.

This is divided into two parts: 1) the confidence of First Nations People in the police; and 2) public confidence in general in the police.

I have requested that the Victoria City Police contact:

• Kathryn Teneese, Gerald Wesley, and Hemas (Bill Wilson) of the First Nations Summit Task Group, and
• Chief Willie Moon, and Chief William Cranmer of the Musgamagw Tsawataineuk Tribal Council.

They represent the concerns of First Nations People that must be addressed.

The Victoria Police Department have offered to give a complete briefing to the Musgamagw Tsawataineuk Tribal Council and the First Nations Summit Task Group on what has taken place including the results of the RCMP investigation and the Victoria City Police investigation.

I have assigned Bill Summersgill from our office to monitor this process.

The full investigation report prepared for Chief Battershill will also be placed on the Office of the Police Complaint Commissioner web site. This will allow the public to see the report for themselves and satisfy themselves that a complete and professional investigation was conducted into this matter. This will ensure that through transparency, public confidence in the police and the complaint process will remain high.

"Don E. Morrison"
Police Complaint Commissioner

October 1, 2001