August 27, 2001

Mr. Don E. Morrison
Office of the Police Complaint Commissioner
900 - 1111 Melville Street
Vancouver, BC V6E 3V6

Dear Mr. Morrison:

RE: POLICE ACT COMPLAINT NO. V00-35
NOTICE OF COMPLAINT RE: DEATH OF ANTHANY DAWSON

On August 13, 2001, Chief Battershill of the Victoria City Police Department forwarded to Ms. Dawson the investigation report prepared with respect to this matter. I understand that you have now received a copy of that report. The conclusion by Chief Battershill was that there was no discipline default and, accordingly, no disciplinary action would be taken against any of the officers involved.

Please accept this letter as Ms. Dawson's appeal pursuant to Section 60 of the Act of that decision.

Procedural Background
In the fall of 1999, Chief Battershill referred the investigation into the death of Anthany Dawson to the Royal Canadian Mounted Police to conduct an independent investigation of the circumstances surrounding Mr. Dawson's death given the seriousness of the issues raised by the circumstances of his death.

The R.C.M.P. completed their report and provided it to Chief Battershill. He then forwarded the report to Crown Counsel in order that they review the witness statements taken and the evidence uncovered to determine whether criminal charges should be considered. Ultimately, Mr. Robert Gillen decided that the Crown policy for substantial likelihood of conviction was not satisfied for any charges against any of the police officers.

Given that Mr. Dawson's death was one "in custody" an inquest was required. It was made clear that the Coroner and specifically by Mr. Orr, Coroner's counsel, that the inquest was about the circumstances surrounding Mr. Dawson's death but not about the police contribution to that death. Specifically, Mr. Orr stated "this inquest is about Anthany. It is about his death. . . this isn't a forum about police conduct (see attachment at tab 1)."

During the course of the Inquest, the public hears for the first time that 8 independent civilian witnesses observed Constable Sheldan punch Mr. Dawson in the head area. There is considerable media attention to this evidence. Finally, on August 4, 2000, in an interview with a reporter from the Times-Colonist, Chief Battershill suggests that a public hearing of all issues raised at the Inquest may be appropriate (see tab 2 and 3).

Constable Sheldan eventually testifies at the Inquest and denies that he ever punched Mr. Dawson. During the course of my cross-examination, I begin to confront Constable Sheldan with the other evidence in the Inquest; however, there is objection made and the purpose of the Inquest is again emphasized in order that my line of questioning is cut off. You will see that Constable Sheldan has never specifically responded to each of the specific allegations made as to his conduct. Either on the record or shortly after proceedings broke, Mr. Pecknold, for the police, indicated that these issues were for your office.

The Inquest concluded with jury recommendations, some of which were specific to the police's handling of the investigation right after Mr. Dawson's death. Specifically, the recommendations called for certain reports to be prepared immediately after an incident of severity such as occurred in this case.

Factual Background
At the outset, I must acknowledge that I do not have transcripts of the actual words used. My client simply does not have the resources to pay for those transcripts. Therefore, I must make my submission to you without the benefit of the precise wording used. Nevertheless, from Sergeant Naughton's report, it is clear that, in fact, 8 people testified under oath that Constable Sheldan punched Mr. Dawson while he was in medical distress on the streets of Oak Bay. The evidence is as follows:

James Angus "The policeman punched the naked guy a couple of times in the side of the head."

Kim Angus The blows were delivered by the police officer in the neck, face area of the left side. Then he proceeded to punch him two more times on the other side.

Corey Atherton I saw him give quite a hard blow to his head.

Robert Atherton "I saw the officer hit him once, um, quite hard." ". . . I know it hit him in the face . . . "

Collin Dales The policeman punched him twice in the upper torso.

Clement Huot The policeman said "when I tell you to fuckin' roll over, you roll over." He punched him twice to the side of the cheek. "I thought it was a little excessive."

Shannon McLean "I saw him sort of punch into the man twice where his face was, and I felt really sick."

Heather Price He struck him to the left forehead area with his closed fist once.

I would add the following pieces of evidence, not quoted by Sergeant Naughton, from the Inquest. Firstly, Kim Angus, in cross-examination by Mr. Considine, testified that she did not understand why he knelt down and punched Mr. Dawson. I asked Roy Hodges at the conclusion of my cross-examination if, given his vantage point, he may have missed part of what Constable Sheldan did with Mr. Dawson, and Mr. Hodges agreed with that. Heather Price testified in-chief that she observed Mr. Dawson to have been struck by Constable Sheldan in the forehead, once. Finally, Shannon McLean testified in-chief that the police officer straddled Mr. Dawson and then with his clenched fist, descended in the general direction of Mr. Dawson's face twice in a punching motion. Her response was that she "felt quite sick, physically sick." She then turned and left.

Constable Sheldan denied that he punched Mr. Dawson and said that he used a "technique" on one occasion only. In light of all of this evidence, Sergeant Naughton's conclusion is an understatement: "There is some obvious conflict between Constable Sheldan's account of what took place and the recollections of some witnesses (page 20)."

Interestingly when it comes to his conclusions, Sergeant Naughton states the following: "From all the medical evidence and the observations of witnesses at the scene, it is clear that Constable Sheldan made two rapid downward movements with his hand directed at Mr. Dawson's shoulder, head or neck, after his verbal commands had met with no response." This is interesting because Constable Sheldan testified that he only made this movement once and, yet, Sergeant Naughton found, contrary to Constable Sheldan's sworn evidence, that he did it twice.

Sergeant Laur testified as to the Use of Force Model in place with the Victoria Police and concluded that punching Mr. Dawson (denied by Constable Sheldan) would have been appropriate in any event.

Sergeant Naughton came to no final conclusions with respect to Constable Sheldan's credibility.

Submission
In light of this background, I wish to put before you several factors that I would submit are significant. I do not intend to suggest, in any way, that you restrict your consideration to the issues as I have highlighted them. I only put these matter forward as particularly cogent reasons why there ought to be a Public hearing in this matter.

a. Seriousness of Complaint
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.

b. Ascertaining the Truth
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.

This is not just an issue for the Dawson family, although it, undoubtedly, is critically important to them. It is also important to the public at large to have a determination of what actually happened.

c. Discipline is inadequate
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.

d. Public Confidence in Police Complaint Process
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.

e. Public Confidence in the Police
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 (see Tab 4). 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.

Summary
In the circumstances of this case, many factors are significant; however, I would respectfully suggest each of those factors point to a public hearing to determine exactly what did happen to Anthany Dawson as he suffered on Oak Bay Avenue in August 1999.

Yours very truly,
BROOKS & MARSHALL
PER: ADRIAN F. BROOKS