The B.C. Court of Appeal will decide whether the province's police watchdog can launch a public hearing into the investigation of two Vancouver police officers who beat an innocent man.
Lawyers for the Office of the Police Complaint Commissioner, the B.C. Civil Liberties Association and the two Vancouver police officers involved made their cases in the province's highest court on Wednesday and Thursday. A decision could take anywhere from a week to several months.
The matter dates back to January, 2010, when officers Nicholas Florkow and Bryan London – in plain clothes but with badges around their necks – arrived at the wrong suite of the correct residence while responding to a domestic-assault call in South Vancouver.
When the officers encountered Mr. Wu – a then-44-year-old immigrant from China who speaks very limited English – an altercation ensued, leaving Mr. Wu with fractured bones around his eye and bruises to his knees and back.
The Vancouver Police Department asked the Delta Police Department to investigate the matter independently. The final report included two very different versions of events: the Vancouver police said Mr. Wu was combative, swinging his arms, shoving an officer and forcing them to employ "close handed tactical strikes," while Mr. Wu said the officers pulled him outside, pushed him to the ground, and beat him for 10 to 20 minutes as he screamed.
The Delta police ultimately cleared the officers of any wrongdoing, concluding that Mr. Wu had resisted arrest and the officers had acted appropriately.
Police Complaint Commissioner Stan Lowe called a public hearing into the incident, but Kevin Woodall, a lawyer representing the officers, successfully blocked it in the B.C. Supreme Court, arguing that Mr. Lowe had no such authority under the Police Act. The commissioner appealed that decision.
Before three appellate judges Thursday, Mr. Woodall acknowledged the importance of civilian oversight but said it can be achieved by means other than a public hearing, which would create the impression in the public eye that "once again, police can't investigate themselves."
Mr. Lowe should have instead appointed a retired judge to examine the report prepared by Delta police, Mr. Woodall said.
John Heaney, a lawyer representing the commissioner, told the judges Mr. Lowe believes the report is "fundamentally flawed" and it is doubtful that a retired judge – who has no way to seek more facts – would be able to resolve the matter effectively in the 10 business days allowed under the Police Act.
"The commissioner did not feel he could take a report that he believed to be flawed and give it to even the smartest judge and hope that the right thing would happen," Mr. Heaney told The Globe and Mail.
"The commissioner looks at the report and says, 'There is a flaw here, the discipline authority may have missed it too; if I give it to one more person, maybe he is going to miss the flaw, or she is going to miss the flaw, and then where would we be?' Someone that might have misconducted themselves will not suffer any discipline."