The Death of John Joseph Harper

The Aboriginal Justice Implementation Commission

Report of the Aboriginal Justice Inquiry of Manitoba

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THE INQUEST

Limiting Cross-Examination
The Conduct of Crown Attorney Morton
The Findings

 

The Inquest TOP

On March 11, 1988, two days after the death of J.J. Harper, an inquest into the death was directed under subsection 9(3)(b) of the Fatality Inquiries Act, R.S.M. 1987, c. F52. (Although the Act was re-enacted in 1987 to comply with French language requirements, the last major changes to the Act prior to that had been enacted in 1975. The Act was amended after the inquest and we discuss the new Act (c. F52, C.C.S.M.) in the next chapter.) Provincial Court Judge John Enns held hearings on April 5—8, 11—15 and 18—20. On May 26, 1988, Judge Enns issued his written report, saying in part:

Concerns about the conduct and the conclusions of the inquest were voiced by a broad spectrum of the public. Judge Enns has a reputation as a fair-minded and even-handed jurist, and we are certain that he tried to bring a moderating influence to a difficult and potentially volatile situation. Nevertheless, Judge Enns reached conclusions with which we are unable to agree. We have had the benefit of evidence which was not available or provided to Judge Enns. In addition, we believe that he was led inevitably to the conclusions he reached by the limitations of the Act, the inadequacies of the police investigation and the manner in which the evidence was presented to him.

In understanding how we come to a different conclusion from Judge Enns, it is important to note the differences between the inquest and the Inquiry’s hearings. The Inquiry’s mandate was broader than that of the inquest. It specifically called for an examination of the police investigation, a determination of whether any racial prejudice was involved, and an assessment of the adequacy of investigation procedures into deaths involving police officers, as well as all matters considered by the inquest. In his inquest report, Judge Enns noted that "a very considerable portion of the inquest evidence had to do with what steps were taken to save Harper’s life." Little evidence on this topic was presented at our hearings, as there was no suggestion Judge Enns was in error when he concluded all reasonable and proper steps were taken to save Harper’s life after he was shot.

In addition to all the evidence of the inquest, which was entered as an exhibit before us, we heard a total of 41 witnesses during 26 days of hearings. We had the opportunity to compare the testimony of witnesses who testified at both the inquest and our hearings. We also received evidence that either was not available or did not come forward in time for the inquest. In his closing statement, Commission counsel pointed out that we had heard more than a dozen pieces of evidence that either were not considered or not considered in the same depth at the inquest. We put no restriction on the participation of those with standing. As a result, we had much more evidence, which was examined and argued in a more thorough way and for broader purposes, than was available to Judge Enns. TOP

Limiting Cross-Examination TOP

One of the most serious problems concerning the conduct of the inquest was the manner in which Judge Enns limited cross-examination. Section 16 of the Fatality Inquiries Act permitted a judge to "limit examination or cross-examination where it appears that it is ... beyond what is reasonably necessary for the purpose of the inquest."1

At the time of the inquest, the duties set out in the Fatality Inquiries Act for the inquest judge were as follows:2

Judge Enns acknowledged that deciding the extent of cross-examination was difficult. Because the Act and the case law provided little guidance, this was an aspect of the Fatality Inquiries Act that he ultimately recommended be reviewed.

Judge Enns openly discussed his difficulty in determining what limits to put on counsel during cross-examination at the inquest. From the outset of the hearing he was concerned about counsel’s trying to question witnesses about matters already covered–a tendency he referred to as "duplicitous questioning." He clearly was influenced by the section of the Fatality Inquiries Act giving him discretion to limit questioning.

Section 16 of the old Fatality Inquiries Act read:

Judge Enns ruled that the intent of the section was to limit questioning to determining the "when, where, and by what means" Harper came to his death, and he also decided to limit cross-examination to only those matters which had not been covered in direct examination or to matters where counsel had reason to believe cross-examination would change the answer. Judge Enns clearly wanted to ensure that cross-examination did not simply cover the same ground already covered in direct examination.

In trials, reviewing and testing statements made in direct examination are permitted invariably on cross-examination. We have some difficulty understanding the basis for Judge Enns’ ruling. We would have thought that cross-examination at an inquest would serve the same purpose as at a trial. The intent of section 16 seems to be to require that all questioning of witnesses, whether in direct examination or in cross-examination, be limited to pursuing only that information which would allow an inquest judge to fulfil his or her duties under section 20(1).

Judge Enns recognized that but, in restricting cross-examination further in the manner in which he did, appears to have prevented the asking of some questions that would have assisted him to fulfil his duties better. With the greatest of respect, we disagree with his ruling.

We recognize that Judge Enns’ task was made more difficult by the fact this Inquiry was established halfway through the inquest. We can see from the transcripts of the inquest that the creation of this Inquiry allowed Judge Enns to take a more limited view of what was to be covered by the inquest. Clearly, matters he could not consider would be considered by us. As one example, Judge Enns refused the request of counsel for the Harper family to have Chief Herb Stephen testify precisely because Stephen could be called to testify before us. As Crown attorney William Morton pointed out, the Harper inquest could not be considered to be a representative example of how inquests are conducted because our Inquiry was announced in the middle of it.

Judge Enns frequently stated during the inquest that he viewed his mandate narrowly. The "when," "where" and "by what means" Harper died were reasonably easy matters; the time and place were not in question, and neither was the fact that death occurred directly as a result of gunshot from Cross’ gun.

The question as to how the gun came to discharge was (and still is) difficult to answer. The manner in which the cross-examination by counsel for the Harper family was limited, we believe, prevented the inquest from fairly testing the evidence of various police officers and determining the truth.

To our minds, inquests and trials are very similar. There are reasons why judges are designated by the Act to conduct inquests, not the least of which is the training and experience at formal fact-determination which judges can bring to such proceedings. Inquests are not intended to be informal meetings at which anything that anyone wishes to say can go unchallenged. Quite often, and particularly in this case, parties allowed to become involved in the proceedings have legal positions to assess and protect.

If counsel for the Harper family had been permitted fuller and freer cross-examination of police witnesses, it is possible that Judge Enns might have had a different appreciation of their credibility. We are, unfortunately, unable to state with certainty what the outcome of the inquest might have been had Judge Enns proceeded as we have indicated or if he had had the benefit of the additional evidence available to us.

Of this much, however, we are certain. Our review of the available evidence tends to suggest that the manner in which the evidence at the inquest was presented favoured the police version of events–a version we deem highly questionable and which, at our hearings, did not stand up well to close scrutiny.

We believe that the same rule with respect to the cross-examination of witnesses that applies in civil and criminal cases should be applied with respect to inquests. As long as the questions are relevant, they should be permitted. TOP

The Conduct of Crown Attorney Morton TOP

Several aspects of the manner in which the inquest was conducted by the Crown were called into question at our hearings.

After the shooting, the police videotaped a re-enactment of the struggle between Harper and Cross. In the tape Cross demonstrated his actions while another officer portrayed Harper. On March 27, 1988 Staff Sgt. Henry Williams prepared a report about the videotape and submitted it to Crown attorney William Morton before the inquest. In the report, Williams said the re-enactment was used by executive officers and investigators as a visual aid to assist in the investigation. Sergeant Williams told us the re-enactment also was made for training purposes, but this was not in his report and to his knowledge the tape never had been used for that purpose. Morton told us that after viewing the tape he decided he would not inform Judge Enns or counsel for the Harper family of its existence:

Morton said he believed the re-enactment was not admissible and was not fair to J.J. Harper. However, Harvey Pollock made it very clear that he wanted Cross to re-enact the struggle, and Judge Enns’ initial denial of his request should have caused Morton to raise the matter at that point. His explanation that the video was unfair to Harper seems weak in the face of the failure to discuss the matter with the lawyer whose clients supposedly would have been most affected by the re-enactment. Further, once Judge Enns decided to permit Cross to re-enact the struggle at the hearing, Morton should have made the tape available to the court and let Judge Enns decide what use, if any, to make of it. Morton’s decision not to disclose the existence of the videotape was an error in judgment on his part.

It seems clear that no thought was ever given to the possibility of a conflict of interest either arising or appearing to arise in this case. The conflict for the Crown was, in our opinion, quite apparent.

At 3:30 p.m., March 10, 1988–only 36 hours after the death of J.J. Harper–the Chief of Police issued a press release exonerating Robert Cross of wrongdoing. The release said the report of the incident had been reviewed by senior Crown attorney Bruce Miller, who found "no evidence of a criminal offence and no charges will be laid." As the Crown already had been consulted by the police and had reached an opinion about the incident before the investigation had been completed, it was impossible thereafter for the Crown to appear to be "independent" of the police department at the inquest.

Further, in preparing for and conducting the inquest for the Crown, Morton appeared to be assisted by senior police investigators, Acting Insp. Kenneth Dowson and Acting Insp. Rex Keatinge. After the inquest, in a letter to the Chief of Police on April 21, 1988, he stated in part:

Morton testified before us that Dowson was not involved in the inquest, that he did not ask Dowson to be seconded to him for the inquest and that he did not ask either Dowson or Keatinge to carry out any investigation for him for the purpose of the inquest. Generally, Morton left the impression with us that he had very little communication with either Dowson or Keatinge during the inquest. His letter to the Chief of Police is not consistent with that position.

Further evidence of Dowson’s involvement in the inquest is contained in his report to Chief Stephen dated May 2, 1988, in which Dowson said in the first paragraph that he was seconded to the Special Prosecutions Branch of the Attorney General’s department at the request of Morton to assist at the Harper inquest.

If independent counsel, rather than the Crown, had conducted the inquest, the public perception of conflict probably would have been reduced. What is equally important, however, is the fact that the appearance of impartiality on the part of the Crown’s office was hampered by the close relationship which existed between the Crown and the police, arising from the Crown’s earlier exoneration of Cross and the role of Dowson and Keatinge at the inquest.

Morton’s letter to Chief Stephen of April 21, 1988 also stated:

Morton sent a copy of his letter to counsel for Cross and the City of Winnipeg Police Association, but not to counsel for the Harper family.

Morton also wrote a memo to his file dated June 10, 1988, concerning a meeting he had with the Chief and three deputy chiefs to review the criticisms made by Judge Enns in his inquest report. In his memo Morton expressed his approval of police procedures:

This was the first inquest Morton had conducted that focussed on the conduct of the police department and a specific officer. Morton told us, "I felt it was specifically very important that I remain independent," and he felt that he was able to be independent in this case. In light of the circumstances outlined above, we are of the view that it was impossible for the Crown to appear to be "independent" of the police.

Morton recognized and confirmed that Crown attorneys are supposed to remain independent from police authority. We understand that this independence may not be apparent to some who would perceive that prosecutors actually represent the police. That perception might be mistaken, but it would not be far from the truth. Although the police do not work for the Attorney General and Crown attorneys do, a relationship of interdependence inevitably arises.

In ordinary criminal prosecutions, there may be less reason for concern about the relationship between the Crown’s office and the police. However, in the Harper case we are convinced that there was a legitimate cause for concern. It is our opinion that any Crown attorney faced with the task of conducting an inquest at which the conduct of a Winnipeg Police Department member is called into question is at the very least in a position of a perceived conflict of interest, if not a real one, particularly after a senior Crown has "cleared" the officer of wrongdoing.

Crown attorneys are called upon constantly to work closely with police forces in this province. When they must, as part of our adversarial system, actively pursue the truth through vigorous cross-examination of persons with whom they work closely on a day to day basis, with whom they may be close friends or associates, and on whom the office of the Crown depends for assistance in conducting prosecutions, Crown attorneys face a difficult task. That task, it must be recognized, is not of their own making, but it can be made more difficult if there is not both the existence and appearance of impartiality in the manner in which the Crown puts in the case.

We recognize that many view the Crown attorney as being an advocate for truth. Viewed in that way, Crown attorneys supposedly are above the push and shove of the adversarial fight; they are to be fair-minded and even-handed without concern for one side or the other in the fight, concerned only to see that justice is done and is seen to be done.

Those are admirable thoughts indeed, and speak of a long and solid tradition in the courts and law of this country. The difficulty is that in this case they did not match reality. The role of Crown attorney should be seen for what it has become, a job where the adversarial skills to prosecute crime are finely tuned and taught. In order to do his or her job effectively, the Crown attorney needs to have a good professional working relationship with police authorities throughout the province. Without that relationship, both police and Crown are hampered severely in their endeavours.

For that reason, when a Crown attorney is asked to look critically at the conduct of a police department or force (or one of its members) in the context of an inquest, it is difficult for him or her to do so. The task is made all the more difficult when the police department feels, and publicly states, that the criticism levelled at it is unjustified and, therefore, the searching and the probing are unwarranted.

In the final analysis, we believe it was a serious error for the Crown’s office to have conducted this particular inquest. We further believe that, in future, similar inquests of police-involved shootings, Crown attorneys should not be involved. Outside counsel should be engaged from the outset by the Attorney General and matters left in the hands of that individual. In the event that an opinion as to criminal charges is requested or such charges are to be proceeded with, we also believe that outside counsel should be engaged and all such matters referred to that person for prosecution. In saying this we have come to the same conclusion as former Chief Justice Dewar who, when reporting on the "Ticketgate" investigation, urged that independent outside counsel be engaged when the Crown is too close to a case.

We will have more to say in a general way about the Crown and the need for independence when we review the new Fatality Inquiries Act in the next chapter. TOP

The Findings TOP

To many, the conclusions reached at the inquest were controversial. Chief among Judge Enns’ findings in his Fatality Inquiry Report were:

In his report Judge Enns considered whether police officers had directed racist comments at Allan and at Melvin Pruden, and also considered evidence indicating that police officers had their guns drawn.

Counsel for the Harper family summarized the inquest evidence and conclusions this way:

We believe that it is unfortunate that Judge Enns did not find the evidence of Aboriginal witnesses to be credible. We make different findings on credibility. For example, we accept as credible the testimony of Allan, Linda Morissette and Melvin Pruden, and we question the credibility of some of the police officers.

Based on the new evidence we heard, our reassessment of existing evidence, and our findings on credibility, we are led to different conclusions from Judge Enns.

We do not accept that Cross had sufficient reason to regard Harper as a suspect. Nor do we accept that the police investigation was proper. We believe that at least two police officers had their guns drawn on the night of the shooting. Harper did not push Cross down, Cross pulled Harper. Finally, we do not believe there was sufficient evidence to exonerate Constable Cross. TOP

1 This power is contained in s. 28(2) of the new Act.
2 The duties are contained under the new Act in s. 33(1), although 20(1)(b) no longer applies.

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