The Duty to Cooperate: Who Makes the Rules?
Perspectives for the Professions
April 2021 - 3 min read
In Independent Investigations Office of British Columbia v. Vancouver (City) Police Department, 2020 BCCA 4, the British Columbia Court of Appeal made a strong statement about the duty to cooperate and offered a reminder of who makes the rules when an investigation is being pursued. In this case, the witness police officers being interviewed did not have the discretion to determine the bounds of the interview process.
Several officers had responded to a robbery which resulted in one officer fatally shooting a man. The Independent Investigations Office (IIO), a civilian-led oversight agency responsible for conducting investigations into police actions that result in serious bodily harm or death, directed several 'witness officers' to attend compulsory interviews. These officers were interviewed capacity as witnesses, not regarding their role in the incident (unlike 'subject officers'). Before the interviews, lawyers for the witness officers asked the IIO for access to disclosure, such as the incident video. The IIO refused to provide pre-hearing disclosure but was prepared to provide limited materials before the interview on the day it took place. The witness officers found this insufficient and declined to be interviewed. The officers maintained that their request was based on a good faith belief that they were entitled to the disclosure, and they were attempting to be consistent with their duty to cooperate.
The IIO brought a petition to the Supreme Court of British Columbia to compel the officers to attend the interviews without the requested disclosure. That application was successful; the judge ordered them to participate without the disclosure and answer the IIO's questions in good faith. The judge also made the following declarations:
- The duty on witness officers to fully cooperate with the IIO under s. 38.101 of the Police Act includes the duty to attend interviews related to IIO investigations as and when the petitioner directs;
- Attendance of witness officers' counsel and union representatives at IIO interviews is at the discretion of the IIO;
- The providing of pre-interview disclosure to witness officers is at the discretion of the IIO; and
- The appellants failed or refused to comply with their statutory duty under s. 38.101 of the PA to cooperate fully with the IIO.
The officers attended the interviews but sought an appeal to quash the declarations.
The issue was: "as between the IIO and the respondents, who defines what 'cooperate fully' under s. 38.101 of the Police Act means?" Section 38.101 of the BC Police Act requires officers to "cooperate fully" with "an IIO investigator in the IIO investigator's exercise of powers or performance of duties" under the Act.
The witness officers argued that s.38.101 did not empower the IIO to unilaterally impose interview terms related to disclosure that were not acceptable to them and that the parties should work together to determine a process. The judge disagreed, finding that the IIO determines the terms of the investigation interview and that the witness officers' attempt to impose conditions on how the interview was to be conducted was inconsistent with the duty to cooperate.
The British Columbia Court of Appeal dismissed the appeal and upheld the declarations. In doing so, the Court found that the statute's plain terms impose a duty to cooperate on the witness officers, and that duty is owed to IIO investigators. This duty is a mandatory, unqualified duty that does not infer that there should be a discussion between parties regarding the duty's content. Instead, it intends to provide the IIO with a broad power to determine their investigative terms.
In considering the legislative scheme's intention, the Court recognized that the IIO was created to provide civilian oversight of police conduct and maintain the public's confidence in the police. The IIO must maintain its ability to be an independent and transparent investigative body. Accordingly, minimal procedural requirements could be expected at the investigation stage.
This decision does not change the law but provides a powerful reaffirmation of members' duty to cooperate with disciplinary investigations. In the context of interviews of investigated members, regulators must provide sufficient information during the investigation so that the investigated member has a fair opportunity to respond to the allegations. That being said, full disclosure of all evidence is not required at the investigative stage. If the matter is referred to a hearing, then a higher level of disclosure will be required at that time.