Lawyers make case for whether DeBungee investigation officers should face disciplinary proceedings

Over five years after Stacy DeBungee's body was found in a Thunder Bay river, lawyers representing his family and home community say officers involved in the investigation of his death must be held accountable.

An extension hearing was held virtually on Wednesday, with lawyers arguing whether three officers determined to have committed misconduct for their roles in the investigation should have Police Services Act hearing charges brought against them.

The body of the 41-year-old Rainy River First Nations man was found in the McIntyre River on the morning of Oct. 19, 2015. Within three hours, a Thunder Bay police media release said the death did not appear to be suspicious in nature and the next day ruled it to be "non-criminal," even though an autopsy had yet to be conducted.

Complaints about the quality of the investigation led to outside scrutiny of how Thunder Bay police investigate deaths involving Indigenous peoples, with the Office of the Independent Police Review Director (OIPRD) launching both a specific review of the DeBungee investigation as well as a broader probe into systemic racism within the force.

The DeBungee review led to allegations of neglect of duty against three officers, with allegations of discreditable conduct also substantiated against two of them.

But the nearly two years it took for the DeBungee review to be completed extended beyond the statutory six-month period under the Police Services Act from the time a complaint is received for a notice of hearing to be brought forward, requiring an extension to be granted.

Julian Falconer, who appeared with Stacy DeBungee's brother Brad in the room, argued it was in the public interest for proceedings to move forward.

"It's an absolute travesty," Falconer said. "Nobody should lose a family member and have this kind of neglect attached to the investigation of the death."

The review found several deficiencies with the initial police investigation, including a failure to follow up with witnesses, communicate information or pursue other leads. Then-OIPRD director Gerry McNeilly concluded that an evidence-based proper investigation was not conducted and that the officers had tunnel vision, that DeBungee must have been intoxicated and rolled into the river.

'Poster child' for Thunder Bay policing issues

Falconer, who took issue with the police service and police chief not taking a formal position on whether the extension should be granted, said it shows nothing has changed when it comes to policing in Thunder Bay.

"This poster child for all that is wrong in Thunder Bay can't stop on a technicality [Wednesday]," he said, adding he didn't expect any Indigenous leaders would say anything has changed in Thunder Bay in 2021. "It's not right."

The OIPRD investigative report had been completed in February 2018. At that time, the Thunder Bay Police Services Board was the subject of an ongoing examination by the Ontario Civilian Police Commission and had requested the appointment of a disinterested person to rule on the matter, leading to the appointment of retired judge Lee Ferrier.

The hearing that ultimately took place on Wednesday had been the subject of a multi-year legal battle involving the CBC over whether it should be held publicly.

Lawyer MiriamSaksznajder, representing the OIPRD, said the organization was the only agency that could have reasonably investigated the initial complaint and outlined the timelines for the review.

Joanne Mulcahy, the lawyer representing the three officers, said the decision about whether to grant the extension should come down to whether the delays, from April 2016 to September 2018, when the OIPRD originally received the complaint to when the extension hearing was originally scheduled, were reasonable.

"It's no pass for anyone to have this hanging over their heads for almost five years," she said.

Ferrier did not provide a date for when he expects to make a decision prior to the hearing's adjournment, but said it would be as soon as he could reasonably do so.