Order forcing Mounties to give officer's notes to police watchdog should be revoked: RCMP lawyer

The question of whether an officer's electronic notes should be given to Manitoba's police watchdog is being argued in a court hearing Friday between the RCMP and the Independent Investigation Unit of Manitoba.

The RCMP want the court to revoke a production order that would force them to hand over notes written by an officer on the night he allegedly assaulted a First Nations man.

Const. Jeremiah Dumont-Fontaine was charged in January 2020 with assaulting Brian Halcrow, 50, following an altercation outside a hotel in Thompson on June 5, 2019.

Halcrow was taken to hospital in the northern Manitoba city and needed stitches. He was later charged with three counts of assaulting a police officer and one count of causing a disturbance.

The application now before the Court of Queen's Bench, first filed by RCMP in December, centres on whether Manitoba's police watchdog agency should have access to two reports that Dumont-Fontaine wrote that night.

Erica Haughey, the lawyer representing the Mounties, argued the two electronic reports constitute an officer's notes, which means under Canada's Charter of Rights, they cannot be used against him as part of an investigation. 

"These are compelled statements from someone under investigation," she said Friday morning. 

"Their production would violate the protection against self-incrimination."

Manitoba's Police Services Act prohibits police agencies from providing the notes of a subject officer to the IIU, which is intended to protect their Charter rights against self-incrimination in a criminal case.

IIU wants two reports

The Independent Investigation Unit of Manitoba wants access to an occurrence report and a subject behaviour officer response report, or SBOR.

An SBOR is information entered into the RCMP's use-of-force database that looks at the behaviour of the individual and the officer's response when force is used.

Haughey said even if they were not written by hand on a notepad, they should still be considered notes written by an officer.

Instead, she said what matters are the materials within the documents — the thoughts and observations of an officer, written the night he is alleged to have assaulted a person.

Forcing police to provide them "undermines the Charter rights of subject officer," she said. 

A lawyer for the police watchdog, though, argued Friday afternoon that actual police notes "document events rather than explain them."

"These are not the same type of document" as an officer's notes written in a notepad, said IIU lawyer Samuel Thomson, and therefore not subject to prohibition under the Police Services Act.

WATCH | RCMP fight against order to release notes about charges against Brian Halcrow:

Manitoba RCMP fight not to release notes about charges against First Nations man

4 years ago

Duration 1:42

RCMP in Thompson, Man., are fighting to keep investigators from accessing an officer's notes describing the night Brian Halcrow was charged with assaulting a police officer. Halcrow has since taken his own life and an investigation is challenging the police version of events.

Thomson argued the watchdog was given the RCMP's use of force report, which quoted and summarized the reports the IIU wants released — but not copies of the actual documents.

That puts the investigative unit in a "predicament" as it doesn't have all the information it needs, he said.

Haughey said investigators with the police watchdog have already charged Dumont-Fontaine, bringing into question what use the new reports would serve.

"They are not necessary for the investigation, they can't used to further the investigation," she said.

She said even if the IIU got its hands on the reports, they wouldn't be admissible in the eventual jury trial for Dumont-Fontaine, which is scheduled for next year.

Associate Chief Justice Shane Perlmutter reserved his decision, which will be released at a later date.

Court documents show differing accounts of the incident

A CBC investigation into what happened the night of Halcrow's arrest, and in the aftermath, found court documents filed as part of the RCMP's court application show differing versions of events.

Const. Mark Sterdan, who responded to the call at the Thompson Inn with Dumont-Fontaine, wrote in his notes that night that Halcrow threw a punch at Dumont-Fontaine, who responded by punching Halcrow twice.

Dumont-Fontaine's statement to the IIU, which was given to the police watchdog months after the June 2019 incident, said that Halcrow threw a hat at him, which hit him. Dumont-Fontaine's statement said he punched Halcrow twice, "fearing further assault."

Video surveillance taken outside the Thompson Inn and viewed by the IIU investigator showed the hat didn't hit Dumont-Fontaine, but rather flew past him.

The police watchdog's investigation was launched in 2019, after Halcrow initially filed a complaint with the the Civilian Review and Complaints Commission — an independent body that deals with civilian complaints about the Mounties.

Halcrow didn't remember anything from that night in June, but woke up bruised and bloody, according to his friends and family. He filed his complaint the day after the alleged assault.

This complaint triggered the commission to notify the RCMP, who in turn notified the Independent Investigation Unit  — which is mandated to investigate serious incidents involving police officers.

Following a nearly six-month-long investigation by the police watchdog, charges were sworn on Jan. 3, 2020. Dumont-Fontaine was arrested on Jan. 7.

Halcrow killed himself on Jan. 5, 2020 — never knowing that Dumont-Fontaine had been charged.

Multiple strokes had made permanent work impossible and his best friend, Thelma Moar, said he was worried about going back to jail after being charged.

This is not the first time the Independent Investigation Unit has fought with law enforcement to obtain notes as part of an investigation.

In 2020, the unit took the Winnipeg Police Service to court in order to get notes from a cadet who was a witness to the death of Matthew Fosseneuve, who died following a police encounter in 2018.

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Winnipeg police argued cadets are civilian officers and therefore beyond the investigative unit's authority to probe.

A judge ultimately decided that in order to investigate, the IIU requires full disclosure from witness officers, which the judge ruled should include cadets.

The IIU later cleared police in Fosseneuve's death, saying it "resulted from pre-existing conditions to which no police action unlawfully contributed in any degree."

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