A retired judge tasked with reviewing a high-profile case where a Heiltsuk First Nation man and his granddaughter were handcuffed in 2019 outside a BMO branch in Â鶹´«Ã½Ó³»has ruled two Â鶹´«Ã½Ó³»police officers committed misconduct by “recklessly using unnecessary force” in arresting the pair.
Brian Neal said in a 69-page ruling released by the Heiltsuk nation Wednesday that constables Canon Wong and Mitchel Tong arrested and handcuffed Maxwell Johnson and his then-12-year-old granddaughter without reasonable and probable grounds.
“I have found that no reasonable police officer standing in the shoes of the two officers could support such actions based on suspicion alone,” said Neal, who concluded the constables “acted oppressively” in their dealings with the pair.
In a separate decision following the discipline proceeding ruling, Neal ordered the constables be suspended for several days, that they complete intensive, immersive Indigenous cultural sensitivity training, and that they complete re-training on de-escalation skills, risk assessment and power of arrest.
Johnson, who had an existing account at the bank, was with his granddaughter on Dec. 20, 2019 at the BMO branch at 595 Burrard St. to open a joint chequing account. Johnson had recently deposited $30,000 in the account after receiving a settlement.
'Upset and fearful'
The branch manager didn’t believe the pair’s purpose at the bank, suspected they were attempting to commit fraud and contacted police. Johnson and his granddaughter were led outside by the constables and handcuffed on a sidewalk.
“Mr. Johnson and his 12-year-old granddaughter were at all times fully cooperative with police directions,” Neal said. “However, there can be no doubt that both parties were clearly confused, upset and fearful as a result of the summary arrest experience so far from home.”
Less than an hour after Johnson and his granddaughter were arrested, they were released with apologies from the constables. The allegations of possible fraud, which were the basis of the arrests, had been determined to be completely without merit.
Neal said the circumstances of the case brought into sharp focus the risk of “precipitous action by police in summarily ending the liberty of persons under investigation by arrest.” Neal found that the cultural safety needs of Johnson and his granddaughter were not considered by the constables.
“In the result, two vulnerable persons of Indigenous heritage were exposed to unnecessary trauma and fear, and left with a serious perception of unfairness in their treatment at the hands of police,” he said.
'Danger to children'
Neal said the case also highlighted “the very real danger to children” who have come into contact with the police.
“The circumstances relating to [the granddaughter] clearly demonstrate the high risk of policing decisions that result in the almost automatic application of handcuffs following any arrest without due consideration of the apparent age of the subject in question, or the lawful basis for such a use of force,” he said.
The lack of Indigenous cultural awareness and training provided to the “relatively inexperienced members” was a major factor in their approach to dealing with Johnson and his granddaughter, Neal said.
“There is also no doubt that, in hindsight, the members themselves have both recognized those critical shortcomings in their treatment of the complainant,” Neal said.
“However, considering all of the evidence available, I find that the haste with which the members approached the arrest and handcuffing of the complainants was more consistent with a failure to exercise judgment, than overt stereotyping and discriminatory assumptions.”
Apology ceremony in Bella Bella
Neal ordered Wong and Tong to provide a written apology and offer to meet with Johnson and his granddaughter to listen to concerns and give an oral apology.
The Heiltsuk Nation has since invited the constables to participate in an "apology ceremony" in Bella Bella with Johnson, his granddaughter and wider community.
“This story has become a symbol of the fight against systemic racism, and we are committed to working with the officers to make broader change and ensure this never happens again,” Marilyn Slett, elected Chief of the Heiltsuk Nation, said in a news release Wednesday.
Neal was appointed to conduct the discipline proceeding after Police Complaint Commissioner Clayton Pecknold disagreed with Victoria Police Chief Del Manak’s earlier finding of his investigation that no disciplinary action was warranted against the officers.
The VPD responded to Neal's ruling in a statement Wednesday, saying: "This process was led by the Office of the Police Complaints Commissioner. We respect the decision and refer specific questions to the OPCC. There is an ongoing human rights process underway and it would be inappropriate to comment further."
BMO has since apologized for the arrest, and Â鶹´«Ã½Ó³»Police Chief Adam Palmer previously said officers were acting in good faith. He described it as “a very unfortunate situation and we’re very sorry the way that this all played out.”
'Colonial past'
In January 2020, Mayor Kennedy Stewart, who doubles as chairperson of the Â鶹´«Ã½Ó³»Police Board, issued a statement accusing the BMO branch of misleading police in the case.
“I felt sick when I first heard about this incident and I find it unacceptable that the Bank of Montreal turned what should have been a positive occasion into one that reinforces our colonial past,” Stewart said at the time.
“I am sad for the long-term impacts this may have on the child, her family and the broader community. BMO needs to do right by this family, take full responsibility for their actions and ensure this does not happen again.”
Meanwhile, two outstanding human rights complaints filed by Johnson and his granddaughter with the BC Human Rights Tribunal and Canadian Human Rights Commission against the VPD and the Bank of Montreal remain outstanding.
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