RCMP must give report written by officer charged with 2019 assault to police watchdog, judge rules

A Court of Queen's Bench justice has partially ruled in favour of Manitoba's police watchdog in what the agency's director calls a "first of its kind" decision, following a legal dispute over reports written by an RCMP officer charged with assault.

A decision delivered on Monday orders the Mounties to hand over an electronic report written by RCMP Const. Jeremiah Dumont-Fontaine on the night in 2019 when he allegedly assaulted Brian Halcrow outside a hotel bar in Thompson, Man.

"This is one of the first, if not the first [decision] of its kind in Manitoba that deals with defining what it is or is not a note," said Zane Tessler, the executive director of the Independent Investigation Unit of Manitoba. 

"So for that reason alone, it's a very significant decision."

Dumont-Fontaine was charged in January 2020 with assault causing bodily harm following a six-month investigation into the events at the Thompson Inn on June 6, 2019.

An officer on the scene that night said Dumont-Fontaine punched Halcrow, 50, twice in self-defence after Halcrow tried to hit the officer during an altercation outside the hotel, according to court documents.

Halcrow was charged with three counts of assaulting a police officer and causing a disturbance while intoxicated. Seven months later, on Jan. 5, 2020, he killed himself.

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.

The assault charge against Dumont-Fontaine was filed days after Halcrow's death. 

As part of its investigation, the Independent Investigation Unit was given access to the RCMP's internal use of force report, which referenced two other reports, and a legal battle for access to those reports began.

One of the reports in question was a subject behaviour/officer response, or SBOR, report — a type of report created after an RCMP officer uses force, which describes the behaviour of the individual and the officer's response.

Mounties fought production order

The RCMP had previously been ordered to give IIU investigators the SBOR report and a subject occurrence report — which details the events and actions taken by an officer responding to a scene. The police force went to court last month, trying to have that production order quashed.

The Mounties argued both records constitute an officer's notes. Manitoba's Police Services Act prohibits police agencies from providing the notes of a subject officer to the watchdog — a regulation intended to protect the Charter rights of officers against self-incrimination in a criminal case.

Ultimately, Court of Queen's Bench Associate Chief Justice Shane Perlmutter agreed with the RCMP that the subject occurrence report is akin to a note written by hand, and therefore the RCMP do not have to provide it to the watchdog.

However, he said that while the SBOR report was created within hours of the incident, it is not a detailed account of an incident, but rather explains why an "intervention occurred."

This makes it different than a written note that details the events of an incident, and therefore should be provided to the Independent Investigation Unit, Perlmutter ruled.

"The regulation [in the Police Services Act] is to ensure that the subject officer will not avoid making a detailed account of the incident … for fear of incriminating himself or herself," he wrote.

"As the SBOR does not fall within the meaning of 'notes,' it is not protected."

Decision gives watchdog more access in the future: IIU

In a prepared statement, the RCMP said it complied with the decision and has already submitted the SBOR report to the investigation unit.

"The Manitoba RCMP remains committed to working closely with the IIU in a co-operative and collaborative manner," an RCMP spokesperson said.

Tessler says the decision will ensure that in the future, the watchdog is given access to similar reports, which could possibly include use of force reports from other jurisdictions, such as the Winnipeg Police Service.

"It will give us access to … more evidence for use in our investigations. And that's a positive thing," Tessler said.

Howard Morton, who served as the director of Ontario's police watchdog, the Special Investigations Unit, from 1992 to 1995, applauded Perlmutter's decision, but says it doesn't get to the heart of the accountability needed for police when they use force.

He has long argued that police officers are different from other citizens, and should be forced to give interviews to police watchdog agencies and provide their notes. 

"They are armed with weapons and in a position to have serious interactions with the public," he said.

"Whether they have the same Charter right against self-incrimination as others do … my view has always been that they do not."

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