'System is working,' police watchdog head says after Crown rejects perjury charge for officer

Manitoba prosecutors won't charge a Winnipeg police officer with perjury, despite a recommendation to do so from the province's law enforcement watchdog earlier this week — a common difference of opinion in dealings between the Independent Investigation Unit of Manitoba and the province's prosecution service, says the IIU's civilian director.

"The charging standard was met, but the prosecutorial standard was not. There's nothing surprising [about] that," Zane Tessler said in an interview Friday. "[The] system is working the way it's designed to work."

The IIU, which is mandated to investigate all serious incidents involving police in Manitoba, started investigating an allegation against Const. James William Macumber in May 2019, following a Court of Queen's Bench civil judgment against the Winnipeg Police Service officer and the City of Winnipeg.

The suit was brought forward by a family who were the targets of a 2014 assault perpetrated by Macumber and three other officers, who later tried to cover it up by charging the family members, the judge in that case found.

He called the officers' actions "malicious and high-handed," and wrote that Macumber "acted with malice" toward one of the family members and was "not being honest in his evidence."

The family won that lawsuit, which has been appealed by the city.

Tessler said his unit's investigation found it was likely an offence occurred, which is why his office recommended the perjury charge against Macumber.

But when the file was passed to prosecutors for review — a common but not mandated practice in his office, Tessler said, that more often than not results in no charges being laid — they decided the case wasn't strong enough to pass the higher standard needed to prove the charge in court.

Tessler said his office understood the gravity of the recommendation.

"Perjury is a very serious charge… It strikes at the heart of the administration of justice," he said. "And it's magnified when a police officer is accused of, basically, misleading the court or lying."

Laying charge without Crown approval 'wasting time'

As the IIU's civilian director, Tessler has jurisdiction to lay charges himself — he doesn't need approval from the Crown to do it. He took that step in 2017, for example, when then-Winnipeg police Const. Justin Holz killed 23-year-old Cody Severight in a hit and run. (Holz pleaded guilty to dangerous driving causing death in 2019 and was sentenced to 2½ years in prison.) 

But in this case, because the prosecutors' office — which would be responsible for moving the case through the courts — didn't think there was enough evidence to support the charge, Tessler said using that power didn't seem worthwhile.

"The reality is we're just wasting time and energies to lay a charge that's not going to be proceeded with," he said. 

"We can lay a charge, but we can't force the Crown to proceed with a prosecution."

A spokesperson for Manitoba Justice said the Manitoba Prosecution Service reviewed all available evidence, legal issues and facts provided through the IIU's investigation in making its decision not to pursue the charge against Macumber.

Prosecutors also consulted independent, outside counsel from the criminal law division of the Ministry of the Attorney General of Ontario, they said.

"There was no sufficient evidence to approve any criminal charges, as there was no reasonable likelihood of conviction," the spokesperson said in an email Friday. "We can't comment further on the specific evidence."

The Winnipeg Police Service did not respond to a request for comment Friday afternoon on whether Macumber is still on active duty with, or employed by, the police force.

Changes to watchdog standard debated

The discussion around what standard police watchdog agencies ought to consider in their investigations has been ongoing for some time among provincial oversight agencies, Tessler said.

The debate is around whether to use the charging standard — which requires enough evidence to suggest a crime was committed — or the prosecutorial standard, which demands the evidence be strong enough to likely prove the charge beyond a reasonable doubt in criminal court.

Using the prosecutorial standard "changes the processes that would be in play against investigations of police officers. It changes the rules for them in particular, as opposed to any other citizen," Tessler said.

"So it's still an open question and still one that will be debated for some time."

Tessler said his office also considered the possibility of laying other charges in connection with that night in 2014. The judge in the civil trial found officers unlawfully entered the family's hotel room and assaulted three of them, one of whom was left with a concussion, a fractured nose and severe swelling in her face.

"We weren't satisfied that there were sufficient grounds to pursue the Criminal Code charges against the individuals [in connection with the assaults]. The one matter that we thought was clear-cut out of the investigation was the perjury [charge]," Tessler said.

Despite the fact Macumber will not face charges following the IIU's investigation into his conduct, Tessler said he doesn't think the case points to a need for changes to police oversight in Manitoba.

"We may not necessarily agree at the end of the day," he said, "but that's part of our system."