Manitoba

Cadet notes could be self-incriminating, must be protected, lawyer argues in court fight with police watchdog

Manitoba's police watchdog was in court Tuesday to fight the Winnipeg Police Service's refusal to hand over notes from two cadets who witnessed the 2018 in-custody death of Matthew Fosseneuve, who was shot with a Taser.

Winnipeg Police Service refuses to give notes on 2018 Taser death to Independent Investigation Unit

Matthew Fosseneuve, 34, died in 2018 after he was shot with a stun gun. (Submitted)

Police cadets shouldn't be forced to hand over notes they've taken on the job to Manitoba's police watchdog, a lawyer for the Winnipeg Police Service says, arguing the notes could be self-incriminating and could even potentially lead to cadets themselves being investigated for criminal activity.

Shannon Hanlin, the lawyer for the police service, made the argument at a hearing Tuesday between the Independent Investigation Unit of Manitoba and police. 

The police watchdog, which investigates serious incidents involving officers, in Manitoba, is fighting the Winnipeg Police Service's refusal to hand over notes from two cadets who witnessed the 2018 death of a man shot with a Taser — a case that's expected to be precedent-setting and could trigger legislative changes.

The IIU is asking the Court of Queen's Bench to order the police service to turn over the notes made by the two civilian cadets.

Police say Matthew Fosseneuve, 34, was acting aggressively and out of control before the stun gun was used on him near Winnipeg's Chinatown on July 28, 2018.

Court heard Tuesday the cadets were first at the scene and were threatened along with police officers by Fosseneuve.

Winnipeg police Chief Danny Smyth has refused repeated requests for the notes from the Independent Investigation Unit, which investigates serious conduct involving police officers.

Independent Investigation Unit lawyer Samuel Thomson said the issue at heart is a disagreement over the section of the Police Services Act that outlines the police watchdog's role.

The problem with the section of legislation is a lack of specific wording that has led to a dispute over what happens to an investigative file, Thomson said.

"Should the whole of the file be passed to the IIU once it becomes involved in investigation?

"Or should it be interpreted in a different way — that perhaps a police service involved in investigation has some discretion or authority or in fact limitations on what it can disclose?" Thomson said, explaining the IIU's position.

The investigative unit argues having access to fewer documents would make its role of probing the conduct of police officers harder.

"We suggest that this is completely against the very purpose of the IIU," Thomson said.

Manitoba's police watchdog was in court Tuesday to fight the Winnipeg Police Service's refusal to hand over notes from two cadets who witnessed the 2018 death of a man shot with a Taser — a case that's expected to be precedent-setting. 1:21

Police argue the investigative unit doesn't have the legislative authority to demand the notes because they are from civilian employees, and not police officers.

Hanlin questioned in court Tuesday why the IIU would want the notes.

"The public trust requires that police can't investigate their own," Hanlin said.

"So why would the IIU … want to rely on the courts, and records and co-operation of a police service that they are tasked with independently investigating?" she said.

"This in our view is contrary to the mandate of the IIU and counterproductive to the mandate of the IIU."

Cadet notes taken on the job could also be self-incriminating, Hanlin said, and could lead to the cadets being investigated themselves for criminal activity.

She clarified that if a cadet was being investigated for a criminal matter, they would be required to hand over their notes to the police's internal professional standards unit.

Her argument was that cadets are not required under Manitoba law to make notes on the job or to give notes to the IIU, or to attend interviews.

Cadets maintain the right to not be interviewed by police because they are private citizens, she said.

The cadets who witnessed the 2018 death didn't appear for interviews requested by the Independent Investigation Unit. Hanlin agreed it could be possible for the IIU to get the notes by obtaining a production order.

The matter, which is being heard by Justice Candace Grammond, has been adjourned until a later date.

About the Author

​Austin Grabish landed his first byline when he was just 18. He joined CBC in 2016 after freelancing for several outlets. ​​In 2018, he was part of a team of CBC journalists who won the Ron Laidlaw Award for the corporation's extensive digital coverage on asylum seekers crossing into Canada. This past summer, he was on the ground in northern Manitoba covering the manhunt for B.C. fugitives Bryer Schmegelsky and Kam McLeod, which attracted international attention. Email: austin.grabish@cbc.ca

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