The Duty To Cooperate: Who Makes The Rules?

• Published date: 08 April 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Field LLP
• Author: Ms Evie Thorne

In Independent Investigations Office of British Columbia v. Vancouver (City) Police Department, 2020 BCCA 4, the British Columbia Court of Appeal made a strong statement about the duty to cooperate and offered a reminder of who makes the rules when an investigation is being pursued. In this case, the witness police officers being interviewed did not have the discretion to determine the bounds of the interview process.

Several officers had responded to a robbery which resulted in one officer fatally shooting a man. The Independent Investigations Office (IIO), a civilian-led oversight agency responsible for conducting investigations into police actions that result in serious bodily harm or death, directed several 'witness officers' to attend compulsory interviews. These officers were interviewed capacity as witnesses, not regarding their role in the incident (unlike 'subject officers'). Before the interviews, lawyers for the witness officers asked the IIO for access to disclosure, such as the incident video. The IIO refused to provide pre-hearing disclosure but was prepared to provide limited materials before the interview on the day it took place. The witness officers found this insufficient and declined to be interviewed. The officers maintained that their request was based on a good faith belief that they were entitled to the disclosure, and they were attempting to be consistent with their duty to cooperate.

The IIO brought a petition to the Supreme Court of British Columbia to compel the officers to attend the interviews without the requested disclosure. That application was successful; the judge ordered them to participate without the disclosure and answer the IIO's questions in good faith. The judge also made the following declarations:

1. The duty on witness officers to fully cooperate with the IIO under s. 38.101 of the Police Act includes the duty to attend interviews related to IIO investigations as and when the petitioner directs;
2. Attendance of witness officers' counsel and union representatives at IIO interviews is at the discretion of the IIO;
3. The providing of pre-interview disclosure to witness officers is at the discretion of the IIO; and
4. The appellants failed or refused to comply with their statutory duty under s. 38.101 of the PA to cooperate fully with the IIO.

The officers attended the interviews but sought an appeal to quash the declarations.

The issue was: "as between the IIO and the respondents, who defines what 'cooperate fully'...