Lawyer says families 'ignored' as Broken Trust final report on death reinvestigations expected within weeks

A lawyer representing three of the nine First Nations families involved in the Broken Trust reinvestigations has serious concerns about the process just as it begins to wrap up, with Ontario's chief coroner saying a final report is expected "within weeks."

While the reinvestigations were supposed to put families first, said Aboriginal Legal Services program director Jonathan Rudin, their clients have instead been "ignored" and largely left out of the process.

"It is repeatedly said by people that a central concern was families not be hurt again by this process," Rudin told CBC News. 

"People are very good at saying that. People are not very good at following through with that … as the wishes of the families were just ignored."

Rudin represents the families of Jethro Anderson, Kyle Morrisseau and Jordan Wabasse — First Nations teenagers who died between 2000 and 2011 while attending school in Thunder Bay, and all part of the seven youths inquest in 2016.

He said concerns about the lack of transparency and communication are heightened.

The office of Ontario's chief coroner, Dr. Dirk Huyer, confirmed the final report will recommend the reinvestigation of more sudden deaths of Indigenous people, and the chief coroner is about to order another systemic review of Indigenous death investigations by the Thunder Bay Police Service (TBPS).

The nine original reinvestigations were recommended in the 2018 Broken Trust report by Gerry McNeilly, then the head of the police watchdog agency, the Office of the Independent Police Review Director (OIPRD). That report found evidence of systemic racism in the city's police force.

The report reviewed 37 sudden death investigations by Thunder Bay police and found nine of them to be "so problematic" that they had to be conducted again.

The report also suggested reinvestigating the 2015 death of Stacy Debungee from Rainy River First Nations. That case has since been reopened by Ontario Provincial Police, and three Thunder Bay police officers involved in the original investigation are now facing disciplinary hearings under the Police Services Act.

Family lawyer concerned about final report

Now that the nine reinvestigations have been completed, a final report has been prepared and will soon be presented to the embattled Thunder Bay police oversight board, Huyer told CBC News, speaking on behalf of the executive governance committee charged with overseeing the process.

That report will provide a summary of the work done and will respond to the recommendations made in the Broken Trust report, Huyer told CBC News.

But Rudin said he hasn't heard about a timeline for that report, nor does he know what exactly will be included in it.

"If people are serious about transparency, if they're serious about trying to repair trust — or create trust frankly — between the Indigenous community and the Thunder Bay Police Service, that's done by actually letting people know what's going on," Rudin told CBC News.

The family lawyer said he sent an 18-page letter to the executive governance committee overseeing the reinvestigations in January 2022, raising a range of issues about the multi-year process, including:

• Concerns about how the investigations were done, including a reliance on lie detector tests.
• Why families were not interviewed at the beginning of the process to determine what they wanted to see come from the reinvestigation of their loved ones' deaths.
• Not sharing final investigation reports prior to a meeting between the families and the teams that conducted the reinvestigations.
• Not providing translators for family members whose first language is not English.
• The inclusion of Thunder Bay Police Services officer Chris Carson as the investigative team's family liaison, despite the fact he was one of two Nishnawbe Aski Police Services officers involved in the 2010 death of Romeo Wesley in the Cat Lake First Nations nursing station.

Rudin also said there are outstanding questions about Thunder Bay police Chief Sylvie Hauth's role in the drafting and review of the final report, given her decision-making role on the executive governance committee.

Hauth declined an interview request with CBC News.

Police service spokesperson Chris Adams said in a statement that Hauth respected the conflict of interest protocol, and "temporarily recused herself" from the committee on Nov. 2, 2021, before rejoining on Jan. 11, 2022.

Adams said "the nature of these decisions is considered as confidential" within the governance committee.

Huyer said it is "with sadness" that he heard the concerns expressed about the process from families and Rudin.

"The last thing we wanted to do was to lead to more difficulties with an already difficult time with losing one of their children and then also the potential that they are being retraumatized by having the challenges [with the original death investigations] that have occurred since the loss of the child."

Huyer said he learned about Carson's involvement and the families' anger about it late in the process, and confirmed Carson was removed from the investigative team toward the end of their work.

More Indigenous deaths to be reinvestigated

Rudin said the reinvestigations didn't provide their clients much new information or respond to key outstanding questions from family members, some of whom have been seeking answers about the death of their loved ones for as many as 20 years.

And yet, the final report will recommend the sudden deaths of even more Indigenous people in Thunder Bay be reinvestigated, a spokesperson for Huyer said.

"I can confirm that the investigative team did bring forward additional cases that they recommend be considered for reinvestigation," a spokesperson for Huyer said in an emailed statement. 

No additional details were provided on how many additional cases will be recommended for reinvestigation, nor when the deaths occurred or if they are part of the original 37 cases examined by the OIPRD. McNeilly, former head of the OIPRD, told CBC News in June 2021 he believed all 37 cases reviewed should have been reinvestigated.

The question at some point becomes, to what end? And how do we work to make sure that families are not continually hurt by these processes?- Jonathan Rudin, family lawyer with Aboriginal Legal Services

"I wanted to choose all 37 of them, to be quite honest, but I'm a practical person and knew that they wouldn't be able to do it. So I picked the ones that were most egregious," he said.

Without knowing much about which cases will be reopened, Rudin aired concerns about any further reinvestigations.

"This was not a process that was helpful for families, and to keep opening things up, to have more and more reinvestigations, the question at some point becomes, to what end? And how do we work to make sure that families are not continually hurt by these processes?" 

Coroner ordering new systemic report

It's a question Huyer said he hopes will be answered by a new report.

He told CBC News he is in the process of ordering a new systemic review, independent of the executive governance committee's influence, that will make recommendations about how the deaths were investigated by police and others, as well as including observations of systemic issues. That could include the frustrations of the families.

The report will be commissioned under the authority of the Coroner's Act, Huyer said, and a writing team along with an Indigenous advisory group is now being put together.

"They are going to be provided all of the learnings, all of the observations, all of the information that was gained on the investigations and additional challenges that were faced through that process."

As for Rudin — whose clients had to relive the investigation of a loved ones' death two or three times now — he said he hopes the systemic report addresses the "serious deficiencies" with the Thunder Bay police's death investigation procedures for Indigenous people.

He added he hopes the review will be completed before any other reinvestigations begin.