THUNDER BAY - While Staff Sgt. Shawn Harrison has already admitted not meeting with a private investigator hired in the Stacy DeBungee sudden death investigation constitutes neglect of duty, defense counsel for both Harrison and Det. Shawn Whipple argued that racial bias had nothing to do with their investigation into the 2015 sudden death.
Closing submissions began on Thursday before adjudicator Greg Walton in the Police Services Act hearing against Harrison and Whipple on charges of neglect of duty and discreditable conduct. Harrison pleaded guilty to the charge of neglect of duty and not guilty to discreditable conduct, while Whipple has pleaded not guilty to both charges.
Defense counsel David Butt began his closing submission by acknowledging the 2015 death of DeBungee, whose body was found in the McIntyre River on Oct. 19, 2015, was a tragic loss for his family and the community and questions remain surrounding his death.
“This is an emotionally charged situation. It’s emotionally charged for a lot of complex, social reasons that go back in time to colonialism and continues up to the present and through multiple inquires,” Butt said. “Emotions are high and tensions are high. There are divisions in the community. There is sadness, anger, and yes there are feelings of betrayal.”
However, Butt argued that those emotions and anger cannot betray the ground rules of the tribunal, which he said is not an inquest or human rights tribunal, but a Police Service Act disciplinary hearing that must rely upon clear and convincing evidence.
As such, Butt argued that Office of the Independent Police Review Director Gerry McNeilly’s 2018 report, Broken Trust, which found systemic racism at an institutional level in the Thunder Bay Police Service, should have a limited role in Walton reaching a disciplinary decision in the hearing.
“A systemic review takes a macro perspective while a discipline hearing takes a micro perspective,” he said. “Systemic reviews are change orientated. They are not discipline orientated. The focus is different.”
The Broken Trust report included 44 recommendations to the Thunder Bay Police Service to address the issues it uncovered and Butt said much has changed in policing since 2015 resulting from the recognition of the harms colonial structures have caused to Indigenous people.
“So we sit in 2022 with a problem,” Butt continued. “My clients are human beings, they don’t have crystal balls. They acted in 2015 and 2016. In this social context, in this heightened emotional environment, we have to be particularly careful that we don’t fall into the trap of judging by hindsight.”
Regarding the charge of neglect of duty against Whipple, Butt focused on his testimony last week where Whipple said he had a limited role in the DeBungee investigation and only stepped in when needed. As a result, he did not take complete notes nor review related reports.
“Shawn Whipple is not guilty of neglect because there was nothing for him to neglect,” Butt said. “There is no evidence that he did not do something that he was supposed to do.”
Harrison has already pleaded guilty to neglect of duty for failing to meet or call private investigator David Perry in November 2015. Perry was hired by the DeBungee family to look into the circumstances surrounding Stacy’s death and he uncovered several leads, such as Stacy’s debit card being used after his death, which he felt was relevant to investigators.
Butt argued Harrison pleaded guilty to the charge because he is a “thoughtful, committed, and self-critical officer who is more than willing to learn from mistakes.”
Other mistakes outlined during the hearing by the prosecution include investigators quickly ruling the death of Stacy DeBungee as non-suspicious and failing to take appropriate investigative steps.
Butt said there is a distinction between a homicide being a possibility and there being evidentiary grounds to suspect a homicide.
“A death where homicide is a possibility cannot be a suspected homicide unless there is an evidentiary foundation for the suspicion,” he said, adding that Harrison knew of no evidence that would support the suspicion of homicide but that did not mean it was ruled out completely.
Much of the criticism of early stages of the investigation involved a media release issued only hours after DeBungee’s body was found that stated the death was non-suspicious. Harrison approved that media release but Butt argued it was meant to strike a balance between reassuring the public and affirming that the investigation was still ongoing.
A second media release issued the day after and before the post-mortem examination was complete, stated DeBungee’s death was non-criminal.
“Flat-out, it’s problematic. Its language is conclusive, has been deemed over, done,” Butt said. “It does not reference investigative steps still to be taken. It was just plain wrong and should not have gone out. But here’s the problem, there is no clear and convincing evidence that Harrison was responsible for sending it out.”
Regarding the charge of discreditable conduct, Butt argued that it is impossible to suggest Whipple is guilty because he did not neglect anything in the course of his duties.
“Any suggestion that Shawn Whipple acted in a racist manner in this case files in the face of the non-contradicted evidence in this case,” he said. “He is committed, compassionate, he is regarded as exemplary by his supervisors. He provided abundant non-contradicted evidence of the high regard he is held by the numerous Indigenous people he has served.”
Butt added that the same can be said of Harrison, with witnesses called by the prosecution praising his record with the Thunder Bay Police Service, including working on numerous sudden death and homicide investigations, many of which involved Indigenous victims.
“You just can’t lift this case out of the context of the work he does and make the suggestion that somehow he is racist. It just doesn’t add up,” Butt said. “If you consider the evidence fairly and, in its totality, what it shows is that Staff Sgt. Harrison’s record in serving the Indigenous community is exemplary.”
“There is no evidence credibly suggesting that racism had anything to do with what Harrison did in this case. There is abundant evidence that it had nothing to do in this case,” Butt added. “There is no clear and convincing evidence that clears the high legal bars for discreditable conduct and neglect.”
Service prosecutor Joel Dubois began his closing submission on Thursday as well, arguing that Harrison had tunnel vision in the investigation, which tainted the rest of the work going forward.
“We have direct evidence, we have an admission of the officer, immediately in his mind, that he was dealing with another drunk Indigenous male in the river,” Dubois said.
“There is a direct link between that thought and that stereotype and his belief that it was non-suspicious. It wasn’t just the thought. You actually have an admission, a link between the officer’s belief at the time that it was not suspicious and the stereotype. With respect to Harrison, that alone is evidence of discrimination.”
Dubois added that Harrison’s belief tainted the actions of all investigators involved in the case, including Whipple.
Dubois will continue his closing submission on Friday before Asha James, counsel for the public complainants, including the DeBungee family, presents her arguments.
