Investigators and Vancouver police union in 'battle of wills' over fatal takedown

CBC News has learned Vancouver Police officers involved in the mysterious death of Myles Gray are refusing to cooperate with the civilian body probing the case — derailing the use of force investigation that has dragged on for 19 months, and calling into question the powers of the Independent Investigations Office (IIO).

The union representing Vancouver police officers says its members have "lost confidence 100 per cent" in the IIO. The civilian body has shot back the union is deliberately misrepresenting the facts.

'We are pleading ... tell the truth to the IIO'

Gray was a 33-year-old Sechelt businessman who died in a violent struggle with Vancouver police during a trip to the Lower Mainland in August 2015.

His mother says her family is caught in the middle of the battle between the officers, represented by the Vancouver Police Union, and the IIO.

Margie Gray says she's heard the officers involved in the fatal takedown of her son have "lawyered-up" and are refusing to talk.

She's calling on the police officers to break the legal impasse and speak with IIO investigators.

"We are pleading with them to come up, step up, tell the truth to the IIO," said Margie Gray, adding she's "frustrated" and "infuriated" by the revelations.

But while the Vancouver Police Union says it has "a lot of empathy" for the family and maintains it "still supports the concept of independent civilian oversight," it remains unapologetic for what it says is the protection of its members.

"Have those officers sought legal advice and gotten legal advice? "Absolutely," said Tom Stamatakis, union president and head of the B.C. Police Association. "They're entitled to get that advice, to be informed of the jeopardy, to be presumed innocent until there's a finding they've done something wrong, to have the opportunity to mount a defence to whatever is being alleged."

"We're in an environment where police officers are choosing not to provide a statement because they're exercising their right not to," added Stamatakis. "It doesn't mean the IIO investigation has to stop."

But there's little doubt the probe of Gray's death has been stalled by the legal battle.

In an extraordinary interview with CBC News during an active investigation, the IIO admits it's facing "legal challenges that are outside of our control" in the Myles Gray investigation.

Interim chief civilian director Bert Phipps says "we really don't want to be in a situation where we're debating publicly with the Vancouver Police Union," but the IIO makes it clear it wants to correct what it sees as "inaccuracies".

"I think there's some disingenuous representation of the facts," said John Larkin, IIO's chief of investigations.

The IIO points out the B.C. Police Act is clear.

"An officer must cooperate fully with the chief civilian director … and an IIO investigator."

The civilian body was created by the province to put an end to police investigating police, and to probe all "officer-related incidents of death … in order to determine whether or not an officer may have committed an offence."

Its former boss, Richard Rosenthal, openly complained about what he called "union interference" in some cases, before stepping down last September.

The investigation into Myles Gray's death was already a year old at that time.

Final moments

Gray was a greenery supplier from Sechelt.

On the afternoon of August 13, 2015 he walked away from his truck after making a delivery to florist wholesalers near Marine Way on the southeast Vancouver-Burnaby border.

Gray crossed into Vancouver and got into an argument with a woman watering her garden during drought restrictions. Vancouver police were called and an altercation ensued.

VPD officers chased Gray back across a Boundary Road overpass, leading to a violent struggle in the backyard of a Burnaby home.

Gray was pronounced dead a short time later—and Vancouver Police said two officers were taken to hospital with serious injuries.

But more than a year and a half after the IIO began its investigation, no information has been released — not even the cause of Gray's death or whether toxicology tests revealed the presence or absence of drugs in his system.

The Vancouver Police Union says many officers were interviewed by IIO investigators the day Gray died but takes issue with what it says were requests for interviews with officers "over a year later".

Stamatakis says those officers were being told they couldn't review their notes or refresh their memories by listening to their archived radio transmissions, and this put his members in "legal jeopardy."

"If you set-up police officers in a situation where (the IIO says) 'you just tell us what happened two years ago from your memory'… and later on when it turns out you're not accurate … then (they're) going to criticize you and potentially accuse you of committing criminal misconduct, would you go into that situation?"

Adds Stamatakis, "that's the impasse that we're in right now."

'Not expected to incriminate themselves'

But both the interim head of the IIO and the body's senior investigator say that's not true. Officers are allowed to review their notes prior to an IIO interview — and they're not expected to incriminate themselves.

"If you're a subject officer (potentially facing charges), they get a caution warning that tells them you don't have to say anything to us. It's the right of silence."

But he says witness officers (those who witnessed a potential crime) don't have that right.

"There is the law…which (compels) those officers to comply with the requirements of the IIO investigation."  

'We're not confident in the IIO'

The Vancouver Police Union says there's a bigger issue — its members no longer trust the IIO, because the civilian investigators "refer to these investigations as murder investigations or homicide investigations."

"To me, that implies you've already formed an opinion about what the outcome is going to be," said Stamatakis. "We're not confident in the process. We're not confident in the IIO in terms of their capacity to properly investigate what are pretty complicated, complex, serious incidents where's there's lots of jeopardy (to police officers)." 

Doug King of the Pivot Legal Society, who is also a member of the IIO's external advisory group, is calling on the province to step in and better define the powers of the IIO.

"The general public is caught in a battle of wills between the IIO and Vancouver Police Union," said King. "The provincial government should step in and fix this right now."

All sides agree the battle over the IIO's power to interview police officers could end up in court—or require new legislation from the B.C. government to clarify the independent body's powers.

The delays in the Myles Gray investigation were brought up during question period in the B.C. Legislature in early March, with Gray's parents in the public gallery.

B.C. Attorney General Suzanne Anton seemed to be aware of the problems, but was cautious.

"Everybody is working very hard to get this investigation done as soon as it can. There are some things, that, anyway I won't go into details on it. But certainly everyone is very aware of the issue."

'We deserve to hear what happened' 

In the meantime, the investigation into Myles Gray's death is almost 80 weeks old — and counting.

In February 2016, his parents launched a lawsuit against seven unidentified Vancouver Police officers, the Vancouver Police Department and the City of Vancouver.

The defendants have denied any wrongdoing. None of the allegations have been proven in court.

Margie Gray just wants the Vancouver police officers who were involved in her son's death, to "please listen to their good conscience" and talk to the IIO.

"We deserve to hear what happened to him," she said.

With files from Manjula Dufresne