Watchdog takes Winnipeg police to court to get cadets' notes after Taser death

Manitoba's police watchdog is taking the Winnipeg Police Service to court after it refused to hand over the notes of the two cadets who witnessed the final moments of Matthew Fosseneuve's life.

The Independent Investigation Unit (IIU) filed an application Tuesday in the Court of Queen's Bench seeking a court order to force Winnipeg police to turn over the notes.

The cadets were there when the 34-year-old was hit with a stun gun during an arrest and died in July 2018.

Records filed with the application show Winnipeg police Chief Danny Smyth and the service's labour liaison officer both refused to turn over the cadets' notes to the IIU following Fosseneuve's death.

"We do not believe it is appropriate to turn over the requested material from its civilian employees," said Smyth in a letter to IIU director Zane Tessler on Aug. 24.

Fosseneuve allegedly threw a brick at officers

Fosseneuve died on July 28 after police were called to the area of Alexander Avenue and Fountain Street with a report of a man acting aggressively. Police officers and cadets arrived on the scene and located Fosseneuve a short distance away.

He allegedly threatened officers with a brick, according to an incident summary by Winnipeg police.

Fosseneuve was hit with a stun gun and became unresponsive. He was taken to hospital and pronounced dead.

The IIU issued a release two days later saying it was investigating after a 34-year-old man died after a confrontation with police.

The application is the latest example of a rift between the two agencies after hundreds of emails were released under Freedom of Information laws last fall. The documents showed that police and the IIU had been at loggerheads over the jurisdiction and mandate of the IIU. 

The emails showed instances where IIU director Zane Tessler raised concerns with Winnipeg's police chief about roadblocks such as not sharing notes, not flagging incidents and keeping cadets from being interviewed.

The IIU was established in 2015 to investigate serious incidents involving the police. Since then, it has investigated more than 120 cases, nine of which led to charges against police officers in Manitoba.

At the centre of the most recent disagreement is whether police must turn over cadets' notes under the current legislation.

Both agencies declined to comment for the story. Winnipeg police said they had not been served the document as of Friday afternoon. 

The IIU's lawyer, Eli Goldenberg, said in an email statement that, "we will be offering no public comment further to what is in the application."

Police labour liaison refuses to give notes to IIU

The court filings show that the IIU attempted to interview and get the cadets' notes within three days of Fosseneuve's death.

An email from the police service's labour liaison officer to the IIU's director of investigations sent on July 31 says that police will not be disclosing the notes.

He asks that Tessler make a written request to Smyth "with any ground they can identify to have the information."

Tessler later sent an email to Smyth laying out the reasons why police should be obligated to turn over the notes.

Tessler stated that the two cadets were the first police employees who encountered Fosseneuve, who was seen on video throwing something at the cadets' car. Tessler also said that both cadets were the closest non-police personnel at the scene prior to emergency crews arriving.

"The cadets were witnesses to an incident," he wrote on July 31. "The notes/narratives of the two cadets are part of the WPS investigative file and as such form part of your agency's disclosure obligation."

Almost a month later, Smyth responded that it is not appropriate to give the notes to the IIU and says if they want the notes, they will have to ask the cadets themselves.

IIU lawyer gets involved

Smyth points to the Independent Investigations Regulation of the Police Services Act  and states that cadets are not considered police officers, but instead are civilian employees. This would exclude cadets from being obliged to hand over their notes to an investigator under the Act.

"In our view the Cadets are in the same position as any other witness to the interaction of police officers with Mr. Fosseneuve," he wrote.

He implores Tessler to "request them attend an interview as they would with any other witness."

The lawyer representing the IIU said that investigators would reach out to the cadets independently, but said its position "has not changed."

Goldenberg said in a letter to Smyth on Sept. 20 that the police possess the notes and reports. "As with any other civilian witnesses their recordings are not privileged in law and should not be excised or excluded from disclosure."

He said that in the interest of "transparency" the police should hand over the notes.

"There is nothing in law that would justify excluding or excising the notes and reports prepared by these two cadets and all of this material must be transmitted to IIU as part of the request for the full WPS investigative file," Goldenberg wrote.

Smyth says there is a 'gap' in legislation

In response, Smyth reiterated that they do not believe "it is appropriate to turn over the requested material from its civilian employees."

He says the fact there is not a provision within the Police Services Act or regulations to request the records of cadets is a "gap" in the legislation.

He ends the letter stating he is open to changing the regulations to clarify the procedures surrounding civilian cadets.

Two separate email exchanges between an IIU investigator and the cadets show the IIU had spoken to both cadets on July 29 and told them he would be contacting them at a later date to get their account of Fosseneuve's arrest.

Both replied on Sept. 5 that they needed to contact legal counsel for advice. 

The investigator emailed both cadets again on Oct. 30 asking if they had made a decision.

No reply from the cadets was provided in the court documents.

The first hearing in the matter is scheduled to appear before a Court of Queen's Bench judge on May 3.