The Death of John Joseph Harper

The Aboriginal Justice Implementation Commission


Chapter 1

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The Events
The Mandate



The Events  TOP

On March 9, 1988 John Joseph Harper died from a gunshot wound caused by the firearm of Const. Robert Andrew Cross of the Winnipeg Police Department.

The next day, March 10, the City of Winnipeg Police Department’s Firearms Board of Enquiry met and reviewed the circumstances surrounding the death of Harper, and concluded that there was no wrongdoing on the part of Cross. The board found that his conduct was above reproach and that the incident had been precipitated by an assault against Cross by Harper. The board concluded from the evidence of Constable Cross that there had been a struggle for Cross’ service revolver between Harper and Cross, and that the gun had discharged accidentally, killing Harper.

That afternoon Chief Herb Stephen called a press conference to announce that the board had exonerated Cross and to say that a senior Crown attorney had decided that there would be no charges laid against the officer.

On March 11, 1988 an inquest into Harper’s death was directed pursuant to section 9(3)(b) of The Fatality Inquiries Act (R.S.M. 1987). On March 24, 1988 Harry Wood, the brother of J.J. Harper, filed a complaint against Cross with the Law Enforcement Review Agency. On April 5, 1988 Provincial Court Judge John Enns convened the inquest which lasted 12 days and concluded on April 20. At the outset Judge Enns granted standing to Harper’s family, the Winnipeg Police Association, Cross and the City of Winnipeg. Fifty-four witnesses testified at the inquest where, in accordance with existing practice, the evidence was called by a Crown attorney, in this case, William Morton Q.C.

On May 26, 1988, pursuant to section 20(1) of the The Fatality Inquiries Act, Judge Enns issued his written report on the inquest, stating:

In conclusion, despite certain shortcomings in the area of police investigation, it is my view that the shooting occurred as a result of the deceased pushing down the officer and then attempting to take his revolver. The officer’s attempt to keep control of his gun is justified and the ensuing shooting I find to be accidental. I therefore exonerate Constable Cross. (Exhibit 3, p. 22)

The Public Inquiry into the Administration of Justice and Aboriginal People was established pursuant to Orders-in-Council dated April 13, 1988 and November 2, 1988 (passed in English only), and by subsequent special legislation. We were appointed as Commissioners to examine how Manitoba’s Aboriginal peoples are being treated by the justice system. In addition, we were asked to examine all matters surrounding the deaths of John Joseph Harper and Helen Betty Osborne. TOP


The Mandate of the Inquiry  TOP

The mandate of the Inquiry is set out in An Act to Establish and Validate the Public Inquiry into the Administration of Justice and Aboriginal People (S.M. 1989—90,
cap. 1). Section 7 of the Act states in part:

[The Commission and Commissioners]

(a) is and are declared to have the right to investigate all aspects of the events leading up to the death of J.J. Harper, the investigation which was conducted by the City of Winnipeg Police Department after the death of J.J. Harper, announcements made by the City of Winnipeg Police Department and the appropriateness of those announcements, the training and regulations of the City of Winnipeg Police Department relating to stopping persons on the street, the arrest of persons, the use and protection of firearms and the manner of dealing with Aboriginal people, whether there exists any evidence of racial prejudice with respect to any of the events which led to the death of J.J. Harper or the investigation of his death, the adequacy of procedures for inquiry into the death of persons whose deaths occurred while in contact with the police and all matters on which evidence was led and findings made at the inquest which was conducted into the death of J.J. Harper pursuant to the provisions of The Fatality Inquiries Act;...

(c) is and are declared to have the right upon completion of the inquiry and the making of its report to make such findings of fact as it deems appropriate, and, where it deems proper, to name the names of persons whose conduct ought, in the opinion of the commissioners, to be called into question; and

(d) may convene a special hearing or hearings to compel the production of documents which, in the opinion of the commissioners, are deemed relevant directly or indirectly to matters before the commission or to the credibility of any person.

After public notice, we convened a special hearing on December 20, 1988 to determine the parties to be accorded standing to participate in the hearings. We also issued a preliminary set of procedural rules. (See Appendix III) We ordered that full standing be accorded to the Winnipeg Police Association and its members, including Constable Cross and the other officers involved in the events of the night of the Harper shooting, the City of Winnipeg, the family of the late J.J. Harper, and the Island Lake Tribal Council as representatives of Manitoba’s Aboriginal population. Counsel acting for the parties were: A.R. McGregor Q.C. and Marty Minuk, for the Police Association; Doug Abra, for the City of Winnipeg; Harvey Pollock Q.C. and Martin Pollock, for the Harper family; and Hersch Wolch Q.C., for the Island Lake Tribal Council. Commission counsel were Perry Schulman Q.C. and Randy McNicol Q.C.

The Manitoba Evidence Act (cap. E 150, C.C.S.M.) provides that a party may request an inquiry to state a case to the Court of Appeal. In April 1989, the police association asked us to state a case to determine our authority to examine the J.J. Harper matter.

On May 1, 1989 we stated a case to the Court of Appeal. On May 4, 1989 the Honourable A.M. Monnin, Chief Justice of Manitoba, ordered that all investigations and matters relating to the Harper hearings be suspended until the stated case could be heard. The stated case was heard on June 8, 1989 and judgment was delivered on that day. The Court of Appeal decided that the Orders-in-Council establishing the Inquiry were invalid because they were passed in English only.

The government then introduced an Act re-establishing the Inquiry and confirming the Inquiry’s past actions. An Act to Establish and Validate the Public Inquiry into the Administration of Justice and Aboriginal People was adopted unanimously by the Manitoba Legislature and became law on June 14, 1989.

After the passage of the Act, subpoenas were issued to several officers of the City of Winnipeg Police Department, calling upon them to produce notebooks used in the investigation into the death of J.J. Harper, including all notebooks containing entries about the Harper shooting and the books immediately preceding and following those books.

The Chief and the City of Winnipeg Police Department took the position that the notebooks were beyond their control since the notebooks were in the possession of the individual officers. Subpoenas then were issued to the individual officers, requiring that they produce the notebooks at a special hearing to be held in the afternoon of June 30, 1989. The police association challenged our authority to do so.

The association asked that the Commission state another case on the question of the jurisdiction of the Inquiry under the new Act and on the question of the notebooks. We held a special hearing to consider the Winnipeg Police Association request on July 7, 1989. As a result, we stated a second case to the Court of Appeal. The questions considered on July 27, 1989 and the answers given by the Court of Appeal were as follows:

1. Are we as commissioners entitled to determine whether any named individual is civilly or criminally responsible for any act or omission we may conclude he or she may have committed?

Answer: No, but the Commissioners may make findings of fact and name the names of persons whose conduct they consider should be called into question.

2. Does the Commission’s constituent statute, in whole or in part, or any procedures required or authorized thereunder, violate and infringe individual rights and freedoms embodied in the common law, or various Acts of either level of government, including the Canada Evidence Act and the Canadian Charter of Rights and Freedoms?

Answer: No.

3. Is Constable Robert Cross a compellable witness at the hearings to be conducted into the Harper matter?

Answer: Yes, but when testifying he is entitled to assert the common law privilege against self-incrimination in respect of any question posed of him.

4. Were we correct in ordering certain City of Winnipeg police officers to produce their notebooks relating to the investigation into the shooting and death of John Joseph Harper as well as their notebooks preceding and following the Harper notebooks?

Answer: No, but the Commissioners were correct in ordering production of photocopies of the portions of notebooks relating to the Harper matter, with verification of the authenticity as carried out by Martin Minuk, one of the solicitors for the Respondent [Police] Association.

5. Are the Commissioners disqualified in law from conducting any and all investigations contemplated by section 7(a) of the said Act by reason of a reasonable concern of predisposition or other reasonable apprehension of bias?

Answer: No.

On August 21, 1989 we began hearing testimony from witnesses and receiving evidence on the Harper matter. The hearings continued through August 22—25, 28—30, September 1, 11—13, 18—20 and November 6—8, with final submissions being made by counsel for all parties on November 15, 1989. For a list of witnesses and exhibits see Appendices I and II. TOP

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