B.C.’s police complaint commissioner is set to review why the police have not yet apologized for the 2019 incident in Vancouver in which a Heiltsuk man and his 12-year-old granddaughter were handcuffed outside a downtown Bank of Montreal branch where they had tried to open an account using status cards.
A disciplinary process concluded in 2022 that the officers involved committed misconduct by recklessly handcuffing and arresting the Indigenous child and her grandfather without “good and sufficient cause,” and ordered them to apologize “at a time and in a manner agreeable to the parties.”
The bank had already sent executives to Bella Bella to participate in a washing ceremony as a culturally appropriate apology in 2020. The police discipline authority, retired B.C. Supreme Court judge Brian Neal, did not specify how the officers must complete this order.
In 2022, the Vancouver Police Department sent representatives to Bella Bella to participate in a washing ceremony, but the arresting officers, Mitchel Tong and Canon Wong, refused.
In ordering the review, Police Complaint Commissioner Prabhu Rajan relies, at least in part, on the recent B.C. Court of Appeals Gitxaala decision, which affirmed that provincial law must be interpreted in line with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
That court decision invalidates parts of the Mineral Tenure Act that it says don’t align with the 2019 Declaration of the Rights of Indigenous Peoples Act (DRIPA) and subsequent Interpretation Amendment Act, which together say that all B.C. law must be consistent with UNDRIP.
“The Court of Appeal has confirmed that DRIPA ‘incorporates UNDRIP into the positive law of British Columbia with immediate legal effect,’” Rajan’s decision to order the review reads.
B.C. Premier David Eby has committed to amending DRIPA because of this ruling, seeking to clarify that the intention of the law is for the legislature to determine what aligns with UNDRIP, not courts.
To justify a review, the complaint commissioner must have new evidence to submit. Some of this new evidence is in the form of affidavits from Maxwell Johnson, the man handcuffed outside the bank, and Marilyn Slett, Heiltsuk chief councillor. These document the unsuccessful attempt to hold a washing ceremony with the officers.
The second piece is that Heiltsuk law and tradition was not considered in the first decision. And while this is not necessarily new — the nation’s law and cultural practice was known at the time — the need to consider it only came to light when the apology was not offered according to the nation’s culture.
And all this, Rajan writes, must be considered in the light of DRIPA as described in the Gitxaala ruling.
“I accept the Applicants’ submission that in determining this application, UNDRIP ought to infuse the entirety of the interpretive process,” Rajan writes.
Former B.C. Supreme Court judge Wally Oppal will preside over the review. Oppal also served as attorney general under former B.C. Liberal premier Gordon Campbell.
Slett released a statement welcoming the review.
“A culturally appropriate washing ceremony and apology, in person, is the proper requirement to help heal everyone impacted by this incident, including the constables themselves,” the Heiltsuk chief said. “Max and his family look forward to being fully heard through this review process, and to ensuring Heiltsuk law and culture are respected.”