Judge orders that Vancouver Police Department records remain sealed

A B.C. Supreme Court justice has ruled in favour of the B.C. police complaint commissioner in a legal dispute with another officer of the B.C. legislature.

It concerned Commissioner Stan Lowe’s refusal to disclose documents regarding his oversight of a Vancouver police officer’s fatal shooting of animator Paul Boyd.

Boyd, who suffered from mental illness, was killed on Granville Street near West 16th Avenue in 2007. The constable who pulled the trigger eight times, Lee Chipperfield, was cleared in 2013 by Crown counsel’s office, which concluded there wasn’t a substantial likelihood of conviction.

Information and Privacy Commissioner Elizabeth Denham went to court, arguing that her office has legal authority to screen records from the Office of the Police Complaint Commissioner to determine if they fell under her jurisdiction.

Her action came as a result of a freedom-of-information request from CBC journalist Curt Petrovich. He sought “all records related to police psychologist Bill Lewinski held by the Office of the Police Complaint Commissioner, between September 1, 2011 and October 1, 2012”.

Lewinski is an expert on the use of force who provided an opinion to the Vancouver Police Department. That opinion was forwarded to the Office of the Police Complaint Commissioner, according to the recent ruling by Associate Chief Justice Austin Cullen.

Lowe’s office first refused to provide any records to Petrovich but later turned over 44 redacted pages after he sought a review by Denham’s office. Petrovich subsequently requested Denham’s office to conduct an inquiry. She issued a production order to Lowe’s office so she could evaluate whether the records came under her jurisdiction.

Section 3 of the Freedom of Information and Protection of Privacy Act (FIPPA) states that it applies to all records in the custody or under control of a public body. The same section notes that the act does not apply to records in the custody and control of an officer of the legislature. However, under Section 44 of the act, Denham can order a person to produce records for the purpose of conducting an audit or an inquiry.

Lowe’s office argued that under the Police Act, FIPPA does not apply to any record concerning a complaint about the conduct of a police officer.

Cullen’s 133-paragraph decision cited provisions in the Coroners Act, B.C. Securities Act, Statistics Act, Employment Standards Act, Health Professions Act, and Administrative Tribunals Act in siding with the Office of the Police Complaint Commissioner’s arguments.

“The petitioner has failed to demonstrate that the adjudicator [Denham] addressed the threshold issue of whether the documents sought fell within the jurisdiction of FIPPA before making the production order,” Cullen wrote in his ruling. “On a correctness standard of review, the order cannot stand and must be quashed.”

Lowe worked as Crown counsel for nine years, starting in 1991 in Victoria. Justice Cullen also worked as a prosecutor before rising to become a regional Crown counsel in Vancouver. He was assistant deputy attorney general overseeing the criminal justice branch before being appointed to the bench in 2001.

Rollie Woods, spokesperson for the Office of the Police Complaint Commissioner told the Straight by phone that although Lowe and Cullen were employed by the attorney general’s ministry at the same time, there never was a “direct reporting relationship”.

“Stan was in Victoria and Austin was in Vancouver so…they never worked together,” Woods said.