RELEASE DATE: February 12, 2016

Manitoba
THE PROVINCIAL COURT OF MANITOBA

IN THE MATTER OF:

The Fatality Inquiries Act, C.C.S.M. c. F52

AND IN THE MATTER OF:

AN INQUEST INTO THE DEATH OF
BRIAN MCPHERSON
(DOD: AUGUST 27, 2011)

Report on the Inquest and Recommendations of
Judge Malcolm McDonald
Issued this 9 day of February, 2016

APPEARANCES:
Counsel to the Inquest: Mr. Paul Girdlestone
For the Garden Hill First Nation: Mr. Larry Monias, Mr. Larry Beardy, Mr. Leonard
Flett and Chief Arnold Flett
For the Federal Government: Mr. Joel Katz
For the Government of Manitoba (Director of Policing): Mr. Jim Koch

 Manitoba
THE FATALITY INQUIRIES ACT, C.C.S.M. c. F52
REPORT BY PROVINCIAL JUDGE ON AN INQUEST
INTO THE DEATH OF: BRIAN MCPHERSON

Holding of the Inquest
The deceased, Brian McPherson died in the early morning hours of August
27 , 2011 while being held in custody at the Garden Hill band constable holding
cells. The immediate cause of death was ischemic heart disease due to coronary
atherosclerosis.
th

On May 17th, 2012 the Chief Medical Examiner of the Province of
Manitoba, directed that an inquest be called to address the following:
1.
2.

To determine the circumstances surrounding the death;
To determine what, if anything, can be done to prevent
similar deaths from occurring in the future

The Fatality Inquiry respecting Mr. McPherson’s death covered six (6) days
including hearings on October 22nd, 23rd, and 24th, 2013 in Garden Hill, Manitoba
and then on July 4th and November 14th, 2014 as well as March 20th, 2015 and
June 14th, 2015 in Winnipeg, Manitoba.
Formal standing to ask questions and make submissions at the hearing
was granted to the Garden Hill First Nation, who was represented by Larry Monias
during the proceedings held in Garden Hill, and limited standing was also granted
to the Federal Government of Canada represented by Mr. Joel Katz and to the
Provincial Government of Manitoba (Director of Policing) represented by Mr. Jim
Koch. During the Winnipeg hearings Garden Hill First Nation was represented by

 First Nation members Mr. Larry Beardy, Mr. Leonard Flett and Chief Arnold Flett.
Mr. Paul Girdlestone of the Manitoba Prosecutions Service ably fulfilled
the duties of counsel to the inquest and I thank him for his invaluable assistance
to the Court. I also wish to thank Mr. Joel Katz and Mr. Jim Koch for their
contributions to and cooperation with the inquest. I would also be remiss not to
thank Mr. Larry Monias for his thoughtful and reflective contributions to the
proceedings held in Garden Hill. In particular his highlighting of the lack of
psychological or emotion counselling available to those guards, security personnel
and citizens who witness the death of an individual or who tend to the deceased
after the discovery of his or her death. I also thank Mr. Larry Beardy, Mr. Leonard
Flett, and Chief Arnold Flett for their participation in the hearings held in
Winnipeg.
A total of 18 witnesses were called over the course of the proceeding.
Scope of the Inquest
In accordance with s. 19(3) of the The Fatality Inquiries Act, hereinafter
referred to as “the Act”, the holding of an inquest was mandatory as Mr.
McPherson died in police custody. A copy of the relevant section is set out below:
s. 19(3) Where, as a result of an investigation, there are reasonable
grounds to believe
(a) that a person while a resident in a correctional institution, jail or
prison or while an involuntary resident in a psychiatric facility as defined
in The Mental Health Act, or while a resident in a developmental centre
as defined in The Vulnerable Persons Living with a Mental Disability Act,
died as a result of a violent act, undue means or negligence or in an
unexpected or unexplained manner or suddenly of unknown cause; or
(b) that a person died as a result of an act or omission of a peace officer
in the course of duty;
the chief medical examiner shall direct a provincial judge to hold an
inquest with respect to the death.

 Section 33(1) sets out the responsibilities of the presiding judge after the
completion of an inquest:
s. 33(1) After completion of an inquest, the presiding provincial judge
shall
(a) make and send a written report of the inquest to the minister setting
forth when, where and by what means the deceased person died, the
cause of the death, the name of the deceased person, if known, and the
material circumstances of the death;
(b) upon the request of the minister, send to the minister the notes or
transcript of the evidence taken at the inquest; and
(c) send a copy of the report to the medical examiner who examined the
body of the deceased person;
and may recommend changes in the programs, policies or practices of
the government and the relevant public agencies or institutions or in
the laws of the province where the presiding provincial judge is of the
opinion that such changes would serve to reduce the likelihood of
deaths in circumstances similar to those that resulted in the death that
is the subject of the inquest.

In addition, s. 33(2)(b) directs the presiding Judge not to make a
determination of culpability on anyone’s part for the death of subject of the
inquest.
The death of Mr. McPherson occurred in the First Nation of Garden Hill.
This reality raises issues with respect to the limits on the role of an inquest judge
in making recommendations in these circumstances.
In 2005 the Inquest Report of Judge Sidney Lerner into the death of Glenn
Fiddler addressed the limits of this Court’s jurisdiction at paragraph 301 and 302
of his report:
... a Provincial Judge presiding at a provincial inquest is without
jurisdiction to make recommendations to the Federal Government
specifically directed to the policies, procedures, and management of the
Federal departments and agencies. (at para. 301)
However, a provincial inquest does have the jurisdiction to make
inquiries into the material circumstances or the death of one of its
citizens, including as noted above, a death occurring on First Nation

 land. While there is a jurisdictional limitation with respect to the nature
of the recommendations that may be made as a result of that inquiry, it
does not restrict the fact finding aspect of the inquiry from identifying,
without recommendation, the problems or deficiencies with Federal
departments or agencies that may have formed a part of the material
circumstances of death. (at para. 302)

Dated at the Town of The Pas, in Manitoba, this 9 day of February, 2016.

“Original signed by:”
Malcolm W. McDonald, Provincial Judge
Copies to:

Dr. A. Thambirajah Balachandra, Chief Medical Examiner
Chief Judge Ken Champagne, Provincial Court of Manitoba
The Honourable Gord Mackintosh, Minister Responsible for The Fatality Inquiries Act
Ms. Julie Frederickson, Deputy Minister of Justice & Deputy Attorney General
Mr. Russ Ridd, Director of Regional Prosecutions
Ms. Lorraine Prefontaine, Director of Special Prosecutions and Appeals
Mr. Paul Girdlestone, Counsel to the Inquest
Mr. Larry Monias, Mr. Larry Beardy, Mr. Leonard Flett and Chief Arnold Flett, for the
Garden Hill First Nation
Mr. Joel Katz c/o Ms. Beth Tait, for the Federal Government
Mr. Jim Koch, for the Government of Manitoba (Director of Policing)
Ms. Ann Marion Monias, widow of Brian McPherson

 Manitoba
THE FATALITY INQUIRIES ACT, C.C.S.M. c. F52
REPORT BY PROVINCIAL JUDGE ON AN INQUEST
INTO THE DEATH OF: BRIAN MCPHERSON
TABLE OF CONTENTS
Paragraphs
I.
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. Summary of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6
III. Evidence of the Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
A. Gerry Hastings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-11
B. Constable Hollie Maffenbier. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12-14
C. Larry Harper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
D. Douglas Keith Flett. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
E. Kurt Mason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
F. Harry Harper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
G. Daryl Harper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21
H. Shannon Beardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22-27
I. Rosemary Harper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28-34
J. Patricia Munroe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35-38
K. Louise Barkman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39-41
L. Sergeant Brian Huff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42-51
M. Ann Marion Monias. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52-54
N. Wayne Harper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55-62
O. Raymond Levesque. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63-73
P. Diane Samuel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-77
Q. Glen Edward Lewis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78-96
R. Michael Anderson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97-105
IV. Assessment and Recommendations
1. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106-107
2. First Nations Policing in Manitoba. . . . . . . . . . . . . . . . . . . . . . . . . . . 108-118
Recommendation # 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Recommendation # 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Recommendation # 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Recommendation # 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122-126
Recommendation # 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

 3. Detention Facilities Operated by First Nations. . . . . . . . . . . . . . . . . .128-139
Recommendation # 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Recommendation # 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Recommendation # 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Recommendation # 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Recommendation # 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Recommendation # 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Recommendation # 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Appendix A – Operational Manual Island Lake Detachment
Appendix B – Exhibit List
Appendix C – First Nation Safety Officers Regulation, Man Reg 229/2015

 I.

Introduction

The deceased, Brian McPherson, died after being placed in the band
constables holding facility, or cells, in Garden Hill in the early morning hours of
August 27th, 2011. The circumstances of his death are not in issue. There was and
is no evidence of foul play. In layman’s terms, Mr. McPherson died of sudden
heart failure.
[1]

The issues are how Mr. McPherson came to be placed in custody, the
condition of the cell his was placed in, the number of prisoners placed in the cell,
and why his medical emergency was not detected on a timely basis.
[2]

II.

Summary of the Facts

At the time of his death, Mr. McPherson was 44 years old and was a
resident of Garden Hill First Nation. Garden Hill is a relatively isolated community
located on the shores of Island Lake approximately 473 kilometres northeast of
Winnipeg. The main settlement of the community is situated on a peninsula
separated from the main RCMP detachment located on Stevenson Island.
[3]

On the evening of August 26th, 2011, Mr. McPherson was at his home
consuming alcohol with some friends. During that evening, the attention of the
local band constable was drawn to the home of the deceased by way of a call
received from the band constable’s dispatch service directing a check on the
home of Mr. McPherson where it was alleged alcohol was being consumed. It
seems likely the call was received from Band Councillor Wayne Harper. On arrival
the Band Constable, Shannon Beardy, three (3) volunteer assistants Kurt Mason,
Douglas Flett, Elliot Wood and Band Councillor Wayne Harper eventually entered
the home of Mr. McPherson. It is unclear who first entered the residence but it is
clear no one invited them in and that the band councillor instructed the band
constable and her volunteer assistants, known as “securities”, to arrest and detain
all the attendees at the party that appeared to be drinking. No one at the party
appeared to be causing trouble or to be so drunk as to not be able to care for
themselves. They were not told the reasons why they were being arrested nor
were they told they could speak to a lawyer. They were all “arrested” and then
transported to the Public Safety Building, (hereafter the “PSB”), in the community
and eventually lodged.
[4]

Inquest: Brian McPherson

Page   1

 The cell block at the PSB was not in good condition. It was only 3.32
metres by 2.67 metres in size. The cell doors were secured by 2” x 4” pieces of
wood rather than proper locking devices. The windows on the cell doors where
covered over by cardboard and duct tape preventing the guards from looking in
to check on prisoners. The only method to check prisoners was to open the cell
door. The guards are not permitted to do this, absent an emergency. The only
other way to check on prisoners was to view them on low resolution black and
white monitors that showed the inside of the cell and which notably did not
provide sound transmission. Added to these shortcomings was the extreme
overcrowding in the cells. As many as 30 individuals lodged on the evening in
question. There were seven (7) people lodged in the same cell as Mr. McPherson.
[5]

The following morning at about 8:00am another prisoner advised the
guards that Mr. McPherson was non-responsive. Attempts were made to revive
him by Harry Harper who had been called by a female guard on duty. His
attempts were unsuccessful as it was clear he had been dead for some time with
rigor mortis evident in Mr. McPherson’s limbs.
[6]

III.

Evidence of the Witnesses:

A summary of the evidence of each of the witnesses, in the order in which
they were called follows:
[7]

A. Gerry Hastings:
Mr. Hastings is a long time resident of Garden Hill. He has a diploma in
Business Administration and over the years has been employed in a number of
capacities by the First Nation in Garden Hill. In 2011 he began work as an
Economic Development Officer and remained employed by the First Nation until
July 2013. During his tenure he was advised by the First Nation that they had lost
funding from the Federal Government for the Band Constable Program. He says
he was shown a letter from the Justice Department saying the funding had been
cut off because the First Nation had not submitted a required audit report. He
developed a proposal on behalf of the First Nation to have the Band Constable
Program funded by the Garden Hill First Nation Employment Training Program, a
program administered by Manitoba Keewatinowi Okimakanak Inc., (hereinafter
MKO) from funds provided by Human Resources Development Canada.
[8]

Inquest: Brian McPherson

Page   2

 In the spring of 2013, Mr. Hastings drafted a Band Council Resolution
(BCR) requesting the RCMP provide a building to be used as a new public safety
building in the community. Mr. Hastings indicated that he provided a copy of the
BCR to the local RCMP detachment. He said subsequent to this he had made
enquiries of staff at the PSB and was advised a new trailer was being acquired to
be used as a lock up and would be located on a designated site that winter.
[9]

Mr. Hastings provided a written statement to the Court that was entered
as Exhibit # 3. In the statement, which was also read into the record by Mr.
Hastings, he described the deficiencies in the physical set up of the cells and the
staffing of the cells on the night of Mr. McPherson’s death. He also expressed the
guarded hope that the acquisition of the new trailer may address some of the
deficiencies.
[10]

Regarding the training of the Band Constables, Mr. Hastings told the Court
that, to his knowledge, the band constables had not received any training in the
three (3) to four (4) years prior to giving his evidence in October of 2013.
[11]

B. Constable Hollie Maffenbier:
Constable Maffenbier at the time of her testimony was a member of the
RCMP Forensic Identification Unit beginning her apprenticeship with that unit
located in Thompson, Manitoba. She was dispatched to Garden Hill along with
her mentor Sergeant Rob Romaniuk on August 27th, 2011 to investigate a
reported death in the cells in Garden Hill.
[12]

She attended the cell area at the PSB and took pictures of the cell block
and the body of the deceased in the cell area. These photographs were entered
into evidence as Exhibit # 5. She observed the cell’s door appeared to be secured
by 2” x 4” board and the viewing port was covered by tape, paper and cardboard.
[13]

Constable Maffenbier also attended to the McPherson home in Garden
Hill and searched the premises with the consent of the deceased’s widow, Marion
Monias, to determine if there was evidence of violence or foul play at the
McPherson household. The conclusion was that there was no such evidence.
[14]

Inquest: Brian McPherson

Page   3

 C. Larry Harper:
Mr. Harper was the brother-in-law of the deceased and was a guest at his
residence on the night of his arrest. He was drinking superjuice, a type of
homebrew, with Mr. McPherson and others. He says that Band Councillor Wayne
Harper entered Mr. McPherson’s home along with a band constable and
“securities” and that he along with all the other occupants of the house who had
been consuming superjuice were detained and taken to the PSB cells. He says he
was not advised of any right to speak to a lawyer.
[15]

He told the court that there were eight (8) people altogether in one cell
that included himself and Mr. McPherson. These eight people slept on the floor
of the cell. Mr. Harper testified that he was awoken in the morning by a cell mate
banging on the cell door and shouting for help as Mr. McPherson was not
breathing. The witness indicated that Brian was “half purple” and that there was
blood on the floor. He said there were no fights or arguments in the cell during
the time he was there.
[16]

D. Douglas Keith Flett:
Mr. Flett testified that he is a “security” explaining that “securities” are
volunteers who assist the band constables in their duties policing the First Nation
community in Garden Hill. On the day in question he was working with a fellow
security, Kurt Mason. The two of them were checking vehicles for alcohol on the
outskirts of the community when they went to assist Band Constable Shannon
Beardy who had been called to attend at the McPherson residence. When they
arrived they found two (2) individuals in the vicinity of the McPherson household.
They had been drinking and one of them was aggressive. Both were arrested and
taken to the PSB. One of the two detained was the son of Band Councillor Wayne
Harper who had arrived on the scene at about the same time as Mr. Flett. When
Mr. Flett returned from lodging the two (2) individuals arrested outside the
McPherson residence, he says he was instructed by Band Councillor Harper to
enter the McPherson house and then later told by Mr. Harper to “arrest” those
found in possession of superjuice. Mr. Flett said that he did not think the
occupants of the house were causing problems from what he saw and that absent
the instruction to “arrest” them he would not have done so. He said specifically
that Mr. McPherson did not seem intoxicated and was cooperative. He confirmed
he had received no training in law enforcement.
[17]

Inquest: Brian McPherson

Page   4

 E. Kurt Mason:
Mr. Mason’s evidence was very similar to that of Mr. Flett. Like Mr. Flett
he recalls attending to the McPherson residence and arresting two (2) individuals
found on a pathway nearby the residence. He then says that he assisted in
arresting the occupants of the McPherson home after being instructed to do so by
Band Councillor Wayne Harper. His evidence as to the condition and behaviour of
the occupants was similar to Mr. Flett’s. Like Mr. Flett, he too was a volunteer
security and had received no training in law enforcement.
[18]

F. Harry Harper:
Mr. Harper had been at the recreation hall in Garden Hill on the morning
of August 27th, 2011 when he received a call from a guard from the nearby PSB.
He was told that it was an emergency. He learned he was called because there
were no other men around and believed the guards did not know what to do. Mr.
Harper, at the time of the incident, had a current certificate in first aid. When he
arrived he saw Brian McPherson on the cell floor. He asked Brian if he could hear
him and on receiving no response checked to see if he was breathing. He found
no evidence of breathing and then when he tried to move the deceased’s arm he
found it was stiff. He could not open Mr. McPherson’s jaw. He tried to
administer CPR but after making one attempt he was encouraged to stop his
efforts by one of the guards who said “he is gone.” In total he spent five (5)
minutes at the cell area assisting the guards in attempting to revive Mr.
McPherson.
[19]

G. Daryl Harper:
Daryl Harper is the nephew of the deceased. He lived with the deceased
and his family. He was drinking at a gathering at the deceased’s home on August
26 and in the early morning hours of August 27, 2011. Those present along with
the deceased, were Leonard Harper, James Day, and Brittany Harper. Daryl
Harper testified that they started drinking around 7:30pm. His testimony was
that the party was not loud and that there were no fights. He describes the
partygoers as variously “not that drunk” to “sober.” He says that the band
constable showed up in the residence, along with Kurt Mason and Douglas Flett.
He says Councillor Wayne Harper also attended. Kurt Mason and Douglas Flett
then said “we have to take you in”. He was then detained and taken to the PSB
[20]

Inquest: Brian McPherson

Page   5

 where he was kept overnight. He says that this has happened before and that
each time $100 or $75 has been deducted from his welfare cheque.
He gave evidence that he was lodged in the same cell as Mr. McPherson
and others. In the morning he heard James Day shout “this guy is bleeding.” The
witness then checked Brian McPherson finding him to be cold to the touch and
bleeding. He then banged on the cell door to get the attention of the guards. He
said the guard checked him for a pulse. In the one (1) or two (2) months he lived
with Mr. McPherson, he says that he was aware that he was taking diabetic
medicine and would be sore from time to time.
[21]

H. Shannon Beardy:
Ms. Beardy was a band constable on August 26th and 27th of 2011. When
she gave testimony in October of 2013 she was 26 years old. She had started
working as a band constable in 2011 and worked in that capacity for a year and a
half before she quit that employment. She resumed work in September of 2013,
earning $800 bi-weekly. She told the inquest that prior to beginning her duties
in 2011 she received no training nor was she given materials to read to assist her
in performing her duties. She says she was given “on the job” training in self
defence. She testified that she received first aid training, by way of a four (4)
hour course, only a year before she gave testimony. This was approximately one
year after the death of Brian McPherson.
[22]

Ms. Beardy testified that when she is on shift only two (2) band constables
work at the same time and that she often responds to matters by herself. Her
evidence was that the night in question was a busy night because it was “welfare
night”, lots of people were drinking alcohol, and the cells were full. She received
a call from dispatch to attend to the McPherson residence. On the way to the
McPherson residence she met up with Kurt Mason and Douglas Flett, who were
working as securities at the bridge and they accompanied her on the call. Shortly
after they arrived outside the McPherson residence, Band Councillor Wayne
Harper arrived. Mr. Harper was, at the time, the councillor in charge of the
Justice Portfolio for the band. Another security, Elliot Wood was also at the scene
and assisted. Ms. Beardy indicated that she could hear “drunk talk” coming from
inside the McPherson residence, but that the first issue was the conduct of
Frankie Harper who was discovered outside the McPherson home. Frankie was
drunk and acting disorderly. He was eventually detained and taken to the PSB.
[23]

Inquest: Brian McPherson

Page   6

 Frankie Harper, we learned, is the son of Band Councillor Wayne Harper. Ms.
Beardy says that then Wayne Harper went to the door of the McPherson home
and ordered her and the securities to go into the McPherson house. She says the
door to the home was open. She did not directly answer the question posed to
her whether she was given permission to enter by the occupants. No mention
was made in her testimony of having a warrant to enter the residence, not even
of one of the all purpose blank “warrants” issued by the Chief and Council.
It bears mentioning at this point that at no time during the testimony of
this witness or the securities were notes referred to. In the normal course trained
police officers seek permission to refer to notes during court hearings to refresh
their memory so that their evidence can be as accurate as possible. It would
seem that note taking during investigations was not a practice followed by the
band constable or the securities in the course of their duties.
[24]

When Ms. Beardy entered the house she saw a group of about five (5)
people around a table with cups in front of them filled with superjuice. A person
was asleep on the couch. She says that Wayne Harper splashed the superjuice
into the face of each person who was at the table and then told her and securities
to take them into custody. She said had it not been for the order from the
councillor, she would not have taken them in because they were not so drunk
they could not look after themselves and they were not causing any problems.
The one possible exception was Leonard Harper who was acting rowdy.
[25]

When she got to the PSB there were a number of visitors at the guard
station playing cards and she says the guard, as a result, was not seated at the
monitor. She said that at the time, Louise Barkman was the guard. There was no
evidence suggesting that she ordered the guard to have the visitors leave. She
told the court there is a list of guard duties posted at the PSB, and did identify
Exhibit # 7 as that list. She added that if there is an a medical emergency in the
cells the guards are to phone the nursing station but that this practice is not
provided for in guidelines for band constables or guards. Indeed the list of the
guard duties as set out in Exhibit # 7 makes no mention of this requirement. She
testified that she did receive a call at about 9:00am regarding an emergency in
the cells – which, of course, was concerning the death of Mr. McPherson.
[26]

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 She confirmed that detainees on social assistance have money deducted
from their social assistance cheques. She said that she quit her job in 2012
because she was “always angry”.
[27]

I. Rosemary Harper:
The inquest then heard from the three (3) guards that were on duty in the
early morning of August 27th, 2011, Rosemary Harper, Patricia Munroe and Louise
Barkman.
[28]

Rosemary Harper, at the time she gave her testimony, was the Acting
Chief Band Constable in Garden Hill. In this position she said that her bosses are:
“Band Office, Band Manager, Chief and Council”. She says that her training to be
a band constable consisted of three (3) weeks training at Southport near Portage
la Prairie. She described the course as consisting of training in self-defence, car
chase techniques, how to write reports and statements, and how to handle
prisoners. When asked how much time was spent on handling prisoners, she
described it as being “20 minutes.” When asked by inquest counsel what
instruction was given to her on the powers of arrest, she described being given a
small book but that she never uses it when she goes on a calls because she has
lost the book.
[29]

In response to questions from the Court, Ms. Harper indicated she had
been told by her instructor about warnings to give an accused on arrest regarding
what he was charged with, his right speak to a lawyer and his right to remain
silent but that she had forgotten those procedures and didn’t use those warnings
when she arrests someone. In addition, she confirmed evidence previously
received from Band Constable Beardy that the band constables never obtain
warrants from judges or justices and use photocopied letters of authority from
the band council to enter people’s homes.
[30]

She confirmed she was a guard before she became a band constable and
she attended the cells the morning of August 27th, 2011. She also says she was a
guard at the RCMP detachment. She says she was not trained for her duties as a
guard in either of those positions.
[31]

With respect to her guard duties at the PSB, she says that the duties and
responsibilities of the guards are posted on a single sheet of paper posted on the
[32]

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 office wall, Exhibit # 7, and that the guards knew of them. The duties were listed
as follows:
1.

2.

3.

4.

5.

“Have to know where to put each prisoner when lodged because of
their identity and there (sic) gang involvement.” Ms. Harper
explained the principal gangs are the Renegades and Krazies and
that members of these groups must be separated when they are
lodged.
“Sit in front of the monitor at all times if you need to go to the
washroom get somebody to sit there.” Ms. Harper confirmed the
monitors are black and white and that at the time of Mr.
McPherson’s death the recording system was broken. The
expectation is that the guard would always be at the monitor
observing the prisoners.
“Monitor every 15 minutes.” Ms. Harper said her interpretation of
this rule is that she was to record her observations of the
prisoners every 15 minutes.
“Check if sleeping or snoring in front of the door.” Ms. Harper
explained that the guards were not allowed to open the doors and
that the viewing port was covered so the guards could not see
through the windows making compliance with this requirement
impossible. As a result she would, from time to time, open the
door if she could not hear anything on the inside of the cell.
“Check every movement on every prisoner.” Once again, if a
prisoner was not showing any signs of movement they were to
have the cell opened to check the prisoner.

In addition to guarding the prisoner she explained guards were also
dispatchers for the band constables.
She says she arrived at the cells at about 7:30am on August 27th, 2011.
She was told that there were 30 people in custody. Two (2) female detainees,
were being held outside of the cells and were seated in the guard room with the
guard, Patricia Munroe, who was on duty at the time. As she sat with Patricia
Munroe, watching the cell monitors, she heard a banging on one of the cell doors
and somebody saying there was something going on with Brian. She opened the
cell door and Ms. Munroe went in and checked for a pulse. No pulse was found
and Mr. McPherson appeared to be turning blue. She says she then phoned the
nursing station and spoke with Ivan Spence, a nurse, who in turn said he would
[33]

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 phone the RCMP. Ms. Harper explained that the community does not have an
ambulance but that there is a medical driver. A medical driver did not attend in
this case. No one attended from the nursing station to check Mr. McPherson or
pronounce him dead while Ms. Harper was present. Members of the band
council arrived and the RCMP attended about 30 minutes after the call was made.
After Mr. McPherson’s death, the cell in which he was held has not been
used. Only three (3) cells are now operational. The log book seized by the RCMP
as part of the investigation has not been replaced. Ms. Harper said that this is
because the Band cannot afford one. The guards now use foolscap on which to
record lodgings, which is then placed in a box. Ms. Harper also testified that from
time to time boardrooms in the PSB are used to house prisoners when there are
too many prisoners to house in the cells. She confirmed the testimony of Band
Constable Beardy that detainees at the PSB who are on welfare have monies
deducted from their subsequent welfare cheque.
[34]

J. Patricia Munroe:
Ms. Munroe had been a guard for 11 or 12 years prior to death of Mr.
McPherson. She quit the job in November of 2012 due to an illness in her family.
On the day in question she was scheduled to work the 5:00pm to 1:00am shift but
worked overtime because of how busy it was that night. In addition to her guard
duties, she was also doing the dispatch work for the band constables. She says
that she saw Mr. McPherson when he was lodged and that he did not appear
drunk.
[35]

She says that during the early morning hours five (5) people arrived in the
guard room area of the cells to visit and play cards. Despite the presence of these
individuals, and the fact she and Louise Barkman were playing cards with them,
she maintains that constant surveillance of the prisoners was done by herself and
Ms. Barkman via the video monitors. She confirmed, however that the monitors
had black and white images which were dull and blurry.
[36]

In the early morning she heard some knocking coming from Cell # 1. By
this time Ms. Barkman had left and Rosemary Harper had arrived and she went to
the cell and opened the door. Ms. Munroe went into the cell and saw Mr.
McPherson’s unresponsive body on the floor. She felt his neck for a pulse and
found none. She observed he was already stiff and that his body was cold. She
[37]

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 observed no injury on his body. She then phoned the recreation hall to get some
help in case they had to take him to the nursing station as she knew there were
people there who could help. She spoke to Harry Harper requesting help. She
admitted that this situation had never come up before while she was on duty and
that she, herself, did not phone the nursing station or the RCMP. She says she
never received information about what to do in case of a medical emergency nor
did she receive any formal training as a guard but that she had taken first aid
training in the past although her certificate had expired at the time of Mr.
McPherson’s passing. She confirmed that notes respecting observations made of
the prisoners are kept on either papers or a book separate from the lodging book
(Exhibit # 14). She claimed to be unfamiliar with the policies and procedures set
out in Exhibit # 7 although she acknowledged seeing the paper affixed to the wall
in the guardroom. She told the Court that there was no policy in place regarding
what to do with unconscious prisoners. She said although they would make calls
to the nursing station regarding prisoners with suspected health problems, and
receive advice from them, in her experience no personnel from the nursing
station had ever attended the cells to render medical aid to a prisoner.
In response to a question by Mr. Monias, who appeared on behalf of
Garden Hill First Nation, she advised the Court counselling was never offered to
her after discovering Mr. McPherson’s body.
[38]

K. Louise Barkman:
Ms. Barkman testified that she started working as a guard in 2011 and she
was continuing to do so part time. She told the Court that she had received first
aid training but that she received no other training to assist her in her duties as a
guard. She says she was not told about guidelines or policies for guards in the
performance of their duties.
[39]

Ms. Barkman says her shift was from 1:00am to 9:00am, that she was
present when Mr. McPherson was lodged but could not say if he was drunk or
not. She was certain he was cooperative as he was being lodged. Ms. Barkman
acknowledges she left work prior to Mr. McPherson being discovered
unresponsive in the cell area. Other witnesses have suggested this occurred
between 7:30 a.m. and 8:00 a.m. Although she acknowledged there were visitors
at the cells playing cards, she steadfastly maintained she did not join in the card
[40]

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 game but maintained her duties monitoring prisoner and dispatching the band
constables to calls for assistance in the community.
She echoed the opinion of other witnesses that it is difficult to observe the
prisoners given the resolution of the video feed to the monitors and the fact the
picture is in black and white.
[41]

L. Sergeant Brian Huff:
Sergeant Huff was at the time of the hearing in October of 2013, the
commanding officer at the Island Lake detachment of the RCMP located on
Stevenson Island. Sergeant Huff gave evidence of a recent agreement between
the RCMP and Garden Hill First Nation to establish new detention cells in the
community. A copy of the Band Council Resolution accepting the RCMP’s offer to
establish a new facility was filed in as an appendix to an affidavit filed as Exhibit #
15 in these proceedings.
[42]

The motivation for the offer arose from Sergeant Huff‘s awareness that
the Band was operating cells that were substandard and that there had been in
custody deaths at the facility. The essence of the offer was to move an ATCO
trailer that had previously been used for the RCMP detachment in Moose Lake,
Manitoba to Garden Hill for use as cells. Further, the staff would be hired by the
RCMP through the Core of Commissionaires and would be trained and supervised
by RCMP officers. The expectation would be that guards abide by the rules and
regulations governing RCMP run detention facilities. In addition any prisoner in
the facility would have to be a person detained lawfully in accordance with the
Charter of Rights. All guards would be required to have a criminal record check.
[43]

Inquest counsel reviewed the structure and responsibilities of guards and
their supervisors at the Island Lake detachment as follows.
[44]

First of all a member of the detachment is appointed a guard room
coordinator, he or she is in turn responsible and answerable to the detachment
commander. The guard room coordinator has a number of duties including:
[45]

(a)
(b)

Processing new guard and matron applications;
Arranging shift schedules if necessary;

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 (c)
(d)
(e)

(f)

(g)
(h)
(i)

(j)
(k)

Ensuring guards and matrons report any irregularities concerning
the cell block area;
Hold meetings with guards and matrons biannually or as required
to discuss any concerns they might have;
Ensuring compliance with directives in Nation OM 19.3.9 including
completion of the necessary training and recertification
requirements of all matrons and guards;
Ensuring that the guard and matron hours of work form is
submitted by fax to the Canadian corps of commissionaires on the
1st and 16th of each month;
Ensuring the Legal Aid List and telephone Directory is kept up to
date in each guardroom;
Ensuring there are sufficient fingerprint supplies on hand and
available to meet detachment needs;
Ensuring there are sufficient supplies on hand and available to the
guards to meet prisoner needs (i.e. toilet tissue, sanitary napkins,
blankets, soap, towels etc.);
Ensuring that detention quilts and jackets are in good condition
and cleaned as required;
Ensuring all guards and matrons have read and initialed the
National Unit, Division and detachment policy concerning
prisoners as outlined in Nation OM 19.3.9.1.2.

Sergeant Huff explained that these specific duties of the guard room
coordinator are supplemented by specific requirements and expectations of the
guards and matrons themselves. The relevant portion of the Island Lake
Detachment’s operational manual is at chapter 19.2 and 19.3, attached to this
report as Appendix “A”. The detachment manual in turn refers to divisional and
national standards that guards are expected to be familiar with and to comply
with.
[46]

Among the requirements is the use of a C-13 form during lodging. This
notes the identity of the prisoner, personal effects seized from a prisoner, and
general physical condition and demeanour of the prisoner including any concerns
as to possible self harm. A prisoner log record book is to be kept that notes the
physical condition of each prisoner at the beginning of a guard/matron’s shift and
then at 15 minutes interval thereafter throughout the shift. Guards are to be
aware they may need to wake a prisoner during their shift to ensure he or she is
[47]

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Page   13

 appropriately responsive. Guards also are required to be aware of how to assess
the responsiveness of a prisoner and how to obtain medical assistance if a
problem is found. A sign entitled “Assessing Responsiveness”, also known as a
rousability chart, is to be posted in the cell block at all times and goes through the
steps that the guards and matrons are to follow to determine if a prisoner maybe
be in medical distress. This chart is attached to this report as Appendix “B”.
Sergeant Huff in his testimony was forthright about the difficulties of
recruiting and keeping staff for detention facilities. He anticipated that, from time
to time, strict adherence to screening requirements, before guards could be
employed, would have to be temporarily dispensed with in order to have
adequate staff on hand.
[48]

In St. Theresa Point, a community nearby Garden Hill on Island Lake, the
local band did agree to have the RCMP place a trailer in the community and run
the cells in line with RCMP practice. Prior to hearing Sergeant Huff’s testimony
the Court and inquest counsel as well as Mr. Monias toured the facility. We had
also toured the PSB at Garden Hill. The contrast between these facilities and the
manner in they were run was notable.
[49]

The facility in St. Theresa Point although far from the epitome of modern
detention facility was clean and functioning, with no apparent violation of safety
requirements. Locks on the doors were appropriate and record keeping appeared
to be in compliance with accepted norms. The video recording system for the
cells was in working condition, stored digitally and kept for 30 days. In Garden Hill
the facility continued to suffer from the deficiencies noted in the testimony of the
witnesses: 2” x 4” boards securing the doors, at least one door bent outwards, a
utility access panel removed and exposed plumbing. One shortcoming both
facilities share was black and white videos from the cells projected on to monitors
with poor resolution on the screens.
[50]

Shortly after the inquest concluded its hearings in Garden Hill, the inquest
was advised by Sergeant Huff that the Garden Hill First Nation had withdrawn
from the agreement to allow the RCMP to place the trailer on its land and operate
the detention facility. No reason for this decision was conveyed to the Court. To
best of the Court’s knowledge, the situation in Garden Hill respecting the
detention facility and its operation remains unchanged to the date of this report.
[51]

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Page   14

 M. Ann Marion Monias:
Ms. Monias is the widow of Brian McPherson. Her testimony painted the
picture of a man who was her husband and father of her two (2) children. She
described a person of gentle character, who struggled with addictions, and
whose health was fragile and a constant concern to his family.
[52]

She confirmed that on August 26th, a number of people attended at the
home she shared with Mr. McPherson and that he and his guests drank
superjuice. She says her husband was happy throughout the day and was not
aggressive or loud. She says that Frankie Harper, a neighbour, came by but was in
and out. Ms. Monias described him as the most drunken person who came by
that day. She says she did not drink that day. Around 1:00am she says the band
constable and Councillor Wayne Harper and his wife showed up near their
residence. Frankie Harper, Wayne Harper’s son was arrested and resisted the
securities. After this happened, Wayne came into their house. She says she did
not invite the councillor or the police to come into the house. She says that
Wayne poured a jug of superjuice over Brian’s head. In reaction to this Brian said
nothing. She says she was worried because when he would get wet Brian would
get stiff in his hands and head. She asked him repeatedly if he was “ok”. She says
that she told the councillor that Brian was sick. She testified that despite this
assertion Wayne Harper instructed the band constables and securities to take all
of those who had been drinking to jail.
[53]

At page 18, line 28 of Volume 3 of the transcript of proceedings she
outlined her husband’s precarious health and the efforts she and her children
made to care for him:
[54]

A.
Q.
A.

Q.
A.

Yeah, we take good, we take good care of him at home. My kids,
me (inaudible)
What did you mean by that?
Like when he is on a drunk, right, when he passes out, we always,
like, somebody’s always there with him when he passes out, either
my kids or me. Like, for him, like, we’re always, I don’t know, just
always care, taking care of him.
You told me that Mr. McPherson was fragile.
Yeah he was. He was, like, he was just, he was just really fragile,
like, when he was sleepy... Like, when he ‘s drunk and when he

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 Q.
A.
Q.
A.
Q.
A.
Q.
A.

passes out, then, like, we’re just always thinking, like, he might not
get up. Like we’re always, they’re always, the kids are waking him
up. Like, Dad, are you sleeping? And then Brian would nod and
just...
You told me something about a mirror, Mrs. Monias?
Oh, yeah, yeah. Like, his son, Vijay,Vijay would just go, like, put in
the mouth to breathe.
You mean he’d hold up a mirror against Brian’s mouth?
Yeah.
Why, what...
I don’t know. That’s just, Vijay was, for him, taking care of his dad
for...
Vijay was making sure his dad was still breathing?
Yes. Always, he’d always, he’d always be there right beside him
when he’s sleeping. He was always just worried about him, even
though he was small.

The image of this small boy holding a mirror to his father’s mouth
to ensure he was still breathing continues to be the most indelible image
in my mind arising out of the entirety of this sad story.
N. Wayne Harper:
Mr. Harper was the final witness to give evidence during the Garden Hill
portion of the hearings. At the time of the hearings and in August of 2011, Mr.
Harper was a Councillor with the Garden Hill First Nation. At the time of the
hearing he was the councillor holding the Social Assistance and Justice Portfolios.
[55]

He explained that current expenses for the Band Constable Program came
from general band funds. Funding from MKO for a job training program helped
with band constable wages. He said that funding for the Band Constable Program
had been cut by the Federal Government and that his understanding of the
reason was the Band had failed to provide an acceptable audit of its financial
affairs. He admitted, however, that at the time of the cut in funding he was not
responsible for the police portfolio. He advised that at the time of the hearing the
Band was under third party management of its financial affairs.
[56]

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Page   16

 When questioned about the portfolio he held in August of 2011, he
seemed unclear as to what his responsibilities were. Initially, in his evidence he
denied he was driving around the community in the early morning hours of
August 27th, 2011. Instead said he was phoned to come to the nursing station.
He could not recall who he went to see at the nursing station. He claims that
while at the nursing station he received a call about something happening near
the McPherson residence. He says he left to go to the McPherson residence
where he found his son was struggling with a security officer, Kurt Mason. After
assisting the officer he says Ann Marion Monias, the partner of Mr. McPherson
told him to “do his job” and come into her house. He maintains he refused this
invitation citing that he “did not interfere with police work.” Despite this initial
position he says he was eventually persuaded to enter the McPherson/Monias
home along with Band Constable Beardy where he saw the deceased and others
with cups of superjuice in front of them on the table. He told the Court that when
he saw this he told the band constable to “take care “of them. He admitted the
phrase “take care of them” meant to arrest them. He said that during their
arrests they were polite and cooperative and he admitted that the deceased was
usually a happy drunk. He also disclosed that the deceased was a cousin of his
and he was aware he suffered from diabetes. He maintained that Ms. Monias did
not ask him not to take Brian away or remind him that Brian was sick. Despite his
denial he said that he was thinking that maybe they should not take Brian but did
not say anything. He claims that around this time Band Constable Beardy said
that she could not do Brian any favours if she did not do it for everybody.
[57]

Under further examination by inquest counsel, Mr. Harper admitted that
after he entered the home he did pour superjuice over the heads of each of the
individuals sitting at the table and chided them for drinking it with the warning it
would kill them. He also admitted that he had been driving around the
community on the night in question prior to going to the nursing station.
[58]

In response to questions from Mr. Monias, who appeared on behalf of the
Garden Hill First Nation, he continued to steadfastly deny that he phoned the PSB
and requested a band constable come to the McPherson residence. Notably, he
says he could not identify the voice of the person from the PSB he said phoned
him, despite admitting he knew both the guards on duty for years, including
Louise Barkman who is his cousin. When confronted by inquest counsel with a
statement made by him to the RCMP on the day after Mr. McPherson’s death, he
claimed he could not recall making such a statement. Further, he claimed to have
[59]

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Page   17

 no recollection of having told the investigator that he phoned the PSB to have a
band constable attend at the McPherson residence. Further he told Mr. Monias
that he maintains the band constables derive their power to arrest from the Chief
and Council and that likewise he, as a councillor has the right to enter houses on
the reserve. In response to questions from the Court, he maintained it was his
view that the by-law forbidding intoxication by alcohol or the possession of
alcohol requires the arrest of anyone who has drank alcohol regardless of the
level of intoxication.
After hearing Mr. Harper’s evidence, it was clear it conflicted in many
important respects with the evidence of other witnesses who gave evidence at
the initial part of the inquest. In assessing what evidence I accept in making my
conclusions and recommendations, I am obliged to say that where Mr. Harper’s
evidence conflicts with other witnesses I accept the evidence of the other
witnesses who gave testimony. I found his evidence internally inconsistent, at
odds with the statement given by him to the RCMP during their investigation and
at odds with other witnesses, and not capable of belief. The practical effect of
this finding is that I am satisfied:
[60]

(1) Mr. Harper phoned the PSB and requested a band constable
attend at the McPherson/Monias residence;
(2) That he nor anyone in his company were invited or induced
by Ms. Monias to enter the McPherson/Monias home;
(3) That he was either asked not to take Brian or reminded he
was sick by Ms. Monias;
(4) That Band Constable Beardy did not suggest she would
continue the detention of Mr. McPherson because to do
otherwise would show favouritism and that in fact she was
following the instructions of Mr. Harper to arrest the
occupants of the McPherson household who had been
drinking superjuice.
After the hearings in October 2013 I reviewed the evidence given in
Garden Hill and considered previous inquest reports touching on issues of
policing and band detention facilities. This led me to a request by myself to
inquest counsel to call additional witnesses from Federal and Provincial
[61]

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 Governments to provide evidence respecting apparent unresolved issues arising
from the recommendations made in previous inquest reports, specifically, the
Inquest into the Death of Glenn Fiddler (Lerner, PJ 2005) and the Inquest into the
Death of Rachel Wood (Thompson ACJ 2007). I was also aware of concurrent
proceedings regarding an Inquest into the Death of Calvin McDougall (Lord, PJ
2015) respecting a death in the Garden Hill PSB cells in May of 2009.
Four (4) witnesses gave evidence on three (3) separate dates in Winnipeg.
On July 4, 2014 evidence was given by Mr. Raymond Levesque and by Ms. Diane
Samuel. Mr Glenn Lewis gave evidence on November 14th, 2014. Further
evidence was given by Mr. Lewis on March 20, 2015 after the introduction of
amendments to the Police Services Act. Mr. Michael James Anderson of the
Manitoba Keewatinowi Okimakanak also gave evidence on March 20, 2015.
[62]

O. Raymond Levesque
Mr. Levesque gave testimony on July 4th, 2014 in Winnipeg. He is an
official employed by Public Safety Canada, specifically he is with the First Nations
Policing Program Division at the national headquarters in Ottawa.
[63]

Mr. Levesque’s evidence concerned itself with the history of First Nations
Policing in Canada and Manitoba with emphasis on the Band Constable Program,
the present state of First Nations policing and a look into its future.
[64]

The Band Constable Program began in with the release of Circular 34 from
the Department of Indian and Northern Development (DIAND) in 1965. The
parameters of the program were further defined by Circular 55 in 1977. The
circulars were not entered into evidence but Mr. Levesque described them as
short documents that, amongst other things, defined the duties of band
constables. The powers and duties of the constables contemplated by these
circulars were limited in nature. In fact a reiteration of the duties and
responsibilities of band constables authored by his department in 2010 defined
these limited, (Exhibit # 20), area of duties and responsibilities with respect to
policing. Mr. Levesque agreed that, in practice, the duties of band constables have
far exceeded what was contemplated or authorized by the circulars and the 2010
statement of duties and responsibilities.
[65]

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Page   19

 In late 1980’s and early 1990’s the Federal Government began to review
its approach to First Nations policing. In 1992 it overhauled its policies and
programming. A decision was made not to promote the Band Constable Program
and to move ahead with a more comprehensive approach to First Nations policing
in the form of the First Nations Policing Program (FNPP). It entered into a
framework agreement with Manitoba and other provinces for the establishment
of First Nation policing arrangements which were meant to supplement core
policing in First Nations communities. The initiative arose as result of a series of
public inquiries and reviews that concluded First Nations were receiving
substandard policing as compared to other communities throughout the country.
[66]

At the same time in 1992, funding to the Band Constable Program was
frozen. The responsibility for the program was shifted from the Department of
Indian and Northern Affairs (INAC) to the Solicitor General’s Department. In this
department it became a “legacy program” with the expectation that over time it
would be phased out. In its stead First Nations could apply to be funded for two
(2) distinct types of programs:
[67]

(1) a standalone First Nations Police Force (eg. Dakota-Ojibway Police
Service) or
(2) a Community Tripartite Agreement (CTA).
In a fairly short period of time after 1992, a large number of First Nations
and Tribal Councils, representing a number of First Nations, applied for funding
under one or the other of the agreements. By the early 2000’s, a vast majority of
First Nations country wide were involved in the program. Typically, larger First
Nations and Tribal Councils applied for a standalone force. Smaller entities
applied for a CTA.
[68]

A CTA involves an agreement with the Federal Government, the Province,
and the First Nation for provision of supplementary police services provided for
by the provincial police force. In Manitoba this is the RCMP. The RCMP is
expected to acknowledge the terms of the agreement but are not a formal
signatory. The expectation is that such agreements would give the signatory First
Nation a say in structure and nature of the supplementary policing to be provided
under the CTA.
[69]

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Page   20

 Unlike the rest of the country, First Nations in Manitoba did not take up
on the new program. The reasons for this are unclear from the evidence but in
2006 Garden Hill First Nation did apply for funding under the FNPP.
Unfortunately for Garden Hill their request came at almost exactly the same time
that funding to the FNPP program was frozen by the Federal Government. The
freeze in funding was for a five (5) year period (It should be noted that in 2013,
Mr. Levesque advised, a further five (5) year freeze was put in place). As a result
there could be no new agreements funded by Canada given these budget
restrictions. The Garden Hill First Nation’s application was denied. As a result
Garden Hill was not able to participate in the program. The only supplementary
policing available was the Band Constable Program with funding frozen at 1992
levels.
[70]

Mr. Levesque also confirmed in addition that the band constable funding
would be discontinued as of March 31st, 2015. Mr. Levesque told the Court in fact
Garden Hill’s band constable funding had been cut off in January of 2012. The
reason for this is that it came to the attention of his department that Garden Hill
had been operating an unauthorized detention facility. This was a violation of the
Contribution Agreement for the Band Constable Program. He further
acknowledged that this information became known to them by news of Mr.
McPherson’s death in cells in August of 2011. He acknowledged that concerns
with respect to the operation of unauthorized detention cells in Garden Hill and
province wide were known to the department. He testified his department did
not do on-site inspections to ensure compliance with this requirement of the
agreement but relied on self-reporting from the First Nation.
[71]

A letter from the First Nation’s Council dated January 7th, 2008 was
produced as Exhibit # 22. The letter represents the facility operated by the
community as a “Community Safety Centre” for persons who are “unable to care
for themselves due to extreme intoxication” and that further the First Nation “will
provide bedding and guardianship of persons who might being in danger freezing
or causing harm to themselves or others....”. The testimony in this inquest and
findings of Inquest into the death of Waylon McDougall shed considerable doubt
on this description of the facility.
[72]

He indicated that in either 2010 or 2011 funding for the Band Constable
Program was suspended because of failure to provide audited statements. It is
notable that Mr. Levesque did not mention the death of Calvin McDougall in the
[73]

Inquest: Brian McPherson

Page   21

 detention cells in May of 2009 as being a reason for termination. He was not
asked if the department was aware of this death, but one must presume they
were not given the action taken when knowledge of Mr. McPherson’s death came
to their attention. This series of events does highlight the startling lack of
awareness of the existence and condition of these cells. I will comment further
on this later in this report.
P. Diane Samuel
Ms. Samuel testified that she is an employee of Public Safety Canada at its
office in Winnipeg. Like Mr. Levesque she gave testimony on July 4th, 2014.
[74]

She testified that she is the Regional Manager for Public Safety Canada
and that she has been employed with the department since 2009. As part of her
duties she receives and reviews the financial audits from each First Nation with a
Band Constable Program. She advised there were 31 such programs in existence
as of the date of her testimony. She advised that the financial statements had to
be audited and were required each year. She echoed the testimony of Mr.
Levesque noting that there were problems with First Nations meeting this
requirement on a timely basis. It should be noted that in his testimony Mr.
Levesque acknowledged that the expense for the First Nation to prepare such a
report, given the limited fund available, would be difficult to bear. Nothing in the
tenor of Ms. Samuel’s evidence contradicted this.
[75]

Ms. Samuels testified that each year a letter stating that band constable
detention centres are not permitted under the contribution agreements is sent
to each of the First Nations with a Band Constable Program. She, however,
acknowledged no inspections are performed to ensure compliance. She also
advised that she has never been advised of the operation of an unauthorized
detention facility by the RCMP. It is not clear from the evidence whether her
department made any enquiries to the RCMP about the existence or operation of
such facilities.
[76]

In questioning from the Court, she advised that the department’s position
is that it takes no responsibility for the supervision of detention cells and is simply
a funding body.
[77]

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Page   22

 Q. Glen Edward Lewis
Mr. Lewis gave evidence before the Court November 14th, 2014 and on
March 20th, 2015. Mr. Lewis is the Executive Director of Policing and Public Safety
for the Province of Manitoba. He has held this position since September, 2013.
His evidence thoroughly reviewed the history of policing in Manitoba, efforts to
reform outdated legislation governing policing and Manitoba’s role in First
Nations policing with an emphasis on special constable appointments and the
Band Constable Program.
[78]

He told the Court that in 2009 the Legislature passed the Police Services
Act (PSA) replacing the 82 year old Provincial Police Act. The new legislation
incorporated three (3) key changes designed to modernize the legislation
governing policing in the province. First, the legislation created a policing
commission to provide advice to the Minister on policing standards and
regulations. Second, the Act established mandatory police boards to provide
civilian oversight of municipal police services in the province. The third element
was the establishment of an Independent Investigation Unit, (IIU), responsible for
investigating incidents where persons are injured or killed as a result of contact
with police or where there are allegations of criminal misconduct by police
officers.
[79]

Prior to the early 1930’s Manitoba had a provincial police force which was
disbanded and replaced by the RCMP in those parts of the province in which
municipal police forces did not exist. The PSA requires police boards throughout
the province. However, in the case of municipalities policed by the RCMP the
boards are advisory in nature given that the RCMP is a federal entity. The IIU will
have jurisdiction over the RCMP as well as over municipal services.
[80]

The PSA provides a framework for all police agencies province wide
replacing a patchwork of legislation governing various police forces. Manitoba
has 11 or 12 municipal police services. For those areas not covered by those
police services the RCMP provides police services pursuant to the Provincial Police
Services Agreement (PPSA), a copy of which was filed as Exhibit # 26 at the
inquest. The current agreement is in force until 2032. The agreement sets out
that the Minister of Justice will “set the objectives, priorities and goals of the
Provincial Police Service” (Art. 6.10), however, the internal management of the
RCMP and its standards and procedures are under the control of the Federal
[81]

Inquest: Brian McPherson

Page   23

 Government (Art. 6.2). Article 6.3, provides that “the Minister of Justice will
determine, in consultation with the Commissioner (of the RCMP), the level of
policing service provided ...”. In addition Article 5.1 allows the Minister to request
an increase in the number of RCMP members and support staff by written
request. Any increase in such resources is paid for 70% by Manitoba and 30% by
Canada.
Mr. Lewis’ testimony then turned specifically to First Nation policing in
Manitoba. He told the Court that in the early 1990’s significant changes began to
take place in First Nations policing. His analysis was that these changes came in
response to the findings of several inquiries, notably the inquiry in to the
wrongful conviction of Donald Marshall in Nova Scotia and the Aboriginal Justice
Inquiry, (AJI), in Manitoba. He testified that in 1991 the Federal Government
conducted a First Nation Policing Policy Review and concurrently formulated an
aboriginal justice strategy in partnership with the provinces, territories and First
Nations. In his testimony, he outlined what he believed to be the main
recommendations of the AJI concerning the reform of policing in Manitoba:
[82]

(1)

(2)

(3)

that racist attitudes in the police services be addressed through
cross cultural training, improved cultural awareness not only in
First nations communities but also in urban centres;
the modernizing of policing legislation to provide independent
processes to deal with complaints by First Nation communities
and individual respecting police services and conduct;
the Creation of standalone police services in First Nations along
with culturally appropriate stand alone probation services, child
protection agencies and the like. (Emphasis added)

In 1992 the Federal Government unveiled the First Nation Policing Policy
(FNPP). Mr. Lewis’ evidence regarding the structure of the policy was similar to
the evidence of Mr. Levesque. He did indicated that in Manitoba there is only one
(1) stand alone First Nation Police Force, the DOPS, and only eight (8) First Nations
with Community Tripartite Agreements (CTA). He confirmed the purpose of this
policing initiative was to enhance, (emphasis added), rather than act as a
substitute for core police services. He confirmed that cost sharing for the FNPP
was 52% Canada and 48% Manitoba in contrast to the 30/70 split in the PPSA. The
majority of First Nations in Manitoba, perhaps as many as 55, do not have
enhanced police services under the FNPP. Mr. Lewis explained that the bulk of
CTA’s were signed in the mid 1990’s and the early 2000’s. He indicated that he
[83]

Inquest: Brian McPherson

Page   24

 was not aware of Garden Hill’s request to the Aboriginal Policing Directorate for a
CTA in 2006 as that pre-dated his appointment as Executive Director of Policing
and Public Safety for the Province of Manitoba.
Mr. Lewis then addressed the province’s involvement in the Band
Constable Program. He advised that the limit of the province’s involvement was
the appointment, in some instances, of band constables as special constables
under section 9 of the old Provincial Police Act. Mr. Lewis acknowledged that his
review of the appointments suggested that band councils believed such
appointments would confer peace officer status to assist in the enforcement of
Criminal Code matters. With the passage of the PSA in 2009 and after a review of
the 2600 special constable appointments that had been made under the previous
legislation, a decision was made within the department to issue no further special
constable appointments. From Mr. Lewis’ evidence it appears the decision of the
Supreme Court in R v. Nolan, [1987] S.C.R. 1212 and the recommendation of the
Law Reform Commission of Manitoba in its 1996 Report on Special Constables,
amongst other matters, caused a reconsideration of the special constable
program.
[84]

[85]

The department’s position is that:
(1) legislation must be enacted to confer peace officer status and;
(2) any appointment must clearly specify the limits of the authority.

Mr. Lewis did advise, despite this legal limbo, that existing special constable
appointments have not been revoked.
Mr. Lewis took the position that the province has no supervisory authority
or responsibility over band constables, who are also special constables. He opined
that qualification and supervision is the responsibility of the employer (i.e. the
First Nation). He agreed that in many instances a band constable is the only
resource for a remote community to keep the peace where there is no resident
RCMP detachment particularly given that a community has to await the arrival of
RCMP officers. He acknowledged that Manitoba has more band constables than
any other province.
[86]

Inquest counsel questioned Mr. Lewis about recommendations made by
my brother Judge Lerner, contained in his 2005 Inquest Report in to the death of
[87]

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 Glenn Fiddler in Wasagamack, Manitoba. One of Judge Lerner’s
recommendations was that an agreement be fashioned between the province,
Canada and Wasagamack First Nation “for a professional police agency at
Wasagamack First Nation,” (Fiddler Inquest para. 305), to be established. Mr.
Lewis conceded that no such agency has been created. He explained that
Manitoba has urged an expansion of such forces under the FNPP but the freezing
of funding by Canada in 2006 has made expansion of the program to communities
such as Wasagamack, and by implication Garden Hill, impossible. For essentially
the same reasons he explained, Judge Lerner’s recommendation that all parties
“work to established enhanced police services in Wasagamack”, (Fiddler Inquest
para. 305), has not be achieved.
With respect to Judge Lerner’s recommendation that band constable
training be mandatory and comparable to other professional police agencies,
(para. 306), Mr. Lewis indicated that Manitoba has had no involvement in the
training of band constables and that this was entirely a federal responsibility. He
offered that he was aware that training for band constables had been offered at
the University College of the North but was currently not being offered.
[88]

With respect to Judge Lerner’s recommendation that negotiations take
place with a goal of increasing police manpower in Wasagamack, (para. 313), he
confirmed that no such negotiations are underway. As to the recommendation,
that given Wasagamack’s remote location, band constables be given the authority
to properly perform their duties including being eligible to be appointed as peace
officers, (para. 313), Mr. Lewis repeated to the Court that no special constable
appointments are being made. He reiterated the department’s view that such
special constable appointments should not be made and that a special constable
appointment cannot confer peace officer status unless specifically provided for in
legislation.
[89]

Mr. Lewis echoed the testimony of Mr. Levesque that the Band Constable
Program was due to end on March 30th, 2015 but indicated that negotiations
were underway about what to do after the conclusion of the program. In
response to questions from the Court, Mr. Lewis acknowledged his department’s
concern about the gap in police services in the affected First Nations at the end of
this program but contended that fixing the Band Constable Program is not the
solution. He contended that all parties had learned from inquest reports and
departmental deliberations about the program’s shortcomings including issues
[90]

Inquest: Brian McPherson

Page   26

 respecting qualifications, training and retention of band constables. He also
questioned the legal foundation of the program. He indicated that the Federal
Government had expressed a willingness to continue funding equal to its
contribution to the Band Constable Program, approximately 1.5 million dollars,
but paid through the FNPP with the expectation Manitoba would approximately
match the amount based on the 52/48 cost sharing formula of the FNPP.
After Mr. Lewis gave his testimony in November of 2014, the Court
learned that Bill 5, amending PSA to include the creation of First Nation Safety
Officers, had been introduced before the Legislature. Concurrent with this,
Counsel for the Department of Policing wrote the Court requesting a further
opportunity for Mr. Lewis to give evidence before the inquest. Given the fact the
amendment touched directly on issues dealt with at the inquest, the request was
granted and Mr. Lewis gave evidence again on March 20th, 2015.
[91]

His evidence concentrated on the issue of special constables and the
provisions of the new bill and its expected impact on First Nations policing. He reiterated his previous testimony about issues surrounding the appointment of
special constables in the context of a modern policing framework contemplated
by the PSA. He confirmed that although Part 8 of the PSA contemplates the
appointment of special constables, no further appointments would be
forthcoming given the issues identified during the course of the inquest. He
advised no new regulations have been drafted concerning qualifications for
special constables. A list of special constable appointments for Garden Hill, which
was marked as Exhibit # 28, showed none of the individuals involved in the arrest
of Mr. McPherson had special constable appointments.
[92]

Mr. Lewis explained that Bill 5 provides for a new type of law enforcement
officer call First Nation safety officers. The provision is akin to the community
safety officers contemplated in Part 7.1, (not yet proclaimed), of the PSA. In the
case of First Nations safety officers, (FNSO), a First Nation or “entity” must enter
into an agreement with Manitoba and Canada and the local policing authority to
set up such a program.
The agreement must deal with the:
[93]

(a) the management of the program,
(b) financing,
(c) direction and supervision of the officers,
Inquest: Brian McPherson

Page   27

 (d) the geographical area they will perform their duties in,
(e) the relationship between the local policing authority and the FNSO
and
(f) the process for dealing with complaints about FNSO.
The agreement would allow flexibility in the type of enforcement to be
emphasized in a community. Qualifications and training would be prescribed in
regulations as would the provincial enactments FNSO would be allowed to
enforce. FNSO are permitted to assist local policing authorities as per s. 77.16 “as
long as the assistance does not involve any criminal law enforcement activities”
(Emphasis added). Mr. Lewis pointed out that the program is different from
community safety officers in that it requires the agreement of Canada and it also
provides for an “entity” to be a signatory to the founding agreement so that a
tribal council could be a party as opposed to only an individual First Nation. The
funding for FNSO program will be split between Canada and Manitoba, with
Canada putting up 52% to a maximum of 1.4 million and the remaining 48% from
Manitoba.
Mr. Lewis told the Court that Manitoba, Alberta and New Brunswick are
the only jurisdictions that still have Band Constable Programs. When asked how
band detention cell standards could be monitored under this new system, Mr.
Lewis acknowledged previous inquests have raised concerns on those points and
that standards could be monitored on a “case by case basis.”
[94]

The Court asked the witness to address a hypothetical scenario. The
scenario posed was what happens where a FNSO is the only law enforcement
presence in a remote community with no RCMP detachment nearby and a
criminal emergency is on-going? Mr. Lewis acknowledged this scenario was the
subject of considerable conversation during the drafting process and in ongoing
discussions with the RCMP. He advised a strategic review respecting policing in
the province is underway including reviewing the deployment of RCMP personnel
and resources. He acknowledged this scenario presents a gap in police coverage
but contended it is unavoidable and that the current measures are preferable to
doing nothing.
[95]

In response to questions from the Court about how the new legislation, or
intended regulations, would deal with the training and supervision of guards or
matrons at detention facilities used by FNSO, he suggested that training for
[96]

Inquest: Brian McPherson

Page   28

 guards or matrons might be included in regulations contemplated by Bill 5. He
agreed protocols for the training and supervision of these individual must be put
in place.
R. Michael Anderson
Manitoba Kewatinowi Okimakanak (MKO) is an organization representing
the Northern Chiefs, and First Nations, of Manitoba. Its territory covers an area
from Swan River in the southwest to the Nunavut border in the north and the
area south of Island Lake in the southeast. Mr. Anderson is the Director of the
Natural Resource Directorate of MKO. He has been in this role since 1988. During
his time with the organization he has been called on to work on justice issues
including matters respect policing in MKO communities.
[97]

In 2001 MKO entered into a framework agreement with Canada and
Manitoba with a view to entering into CTA’s under the FNPP. CTA’s were
concluded at OCN (the Pas), NCN (Nelson House) and Chemawawin (Easterville).
However there was no concrete progress on the framework agreement itself
which contemplated MKO as a signatory to CTA’s or stand alone agreements for
Police services on a regional – tribal council basis. Despite this, in 2011 MKO
developed a plan to identify and train 30 First Nation candidates to qualify as
peace officers over a period of three (3) years and then to serve as an initial cadre
for a MKO regional police force. The proposal planned for two (2) troops of 15
candidates to be recruited and then trained at the Winnipeg Police Academy and
RCMP Depot. In the end, Manitoba would not agree to participate in funding the
plan.
[98]

Mr. Anderson indicated that it was MKO’s position that fully fledged peace
officers are needed in MKO communities to supplement the services provided by
the RCMP under the PPSA.
[99]

Mr. Anderson testified that the University College of the North, (UCN), had
been offering a course in policing geared toward band constables seeking special
constable status. MKO consulted with UCN and learned that no assistance was
being given to graduates wanting to apply for special constable status. MKO staff
then assisted the graduates by providing the necessary application. In time
however, it became clear Manitoba was not granting special constable
appointments anymore. The course was discontinued in 2013.
[100]

Inquest: Brian McPherson

Page   29

 The witness expressed concerns respecting the adequacy of the proposed
FNSO program. Mr. Anderson noted that funding for the program from Canada is
limited to 1.4 million dollars; represent 52% of the overall budget, with Manitoba
funding the remainder. In 2012, MKO surveyed 30 MKO First Nations respecting
their expenditure on their Band Constable Programs. Nineteen First Nations
responded to the survey and reported that the total expenditure for these bands
was $4,526,127.00 of that sum Canada contributed $1,182,484.00 leaving the
bands’ contributions at $3,343,673.00. If Canada was to contribute to the FNSO
at the same level and Manitoba’s contribution was equal to Canada’s contribution
– the senior levels of government’s contribution to the new program would be
$2,161,159 less than the cost of the former Band Constable program in the
respondent MKO communities (Exhibit # 30 p page 6 and 7).
[101]

As an illustration of the frustration felt with the current system of policing,
Mr. Anderson recounted an event that took place one in Lac Brochet, Manitoba.
Lac Brochet is a remote First Nation community in the far northwestern portion
Manitoba. A detention facility operated by the RCMP had been established in the
community. Part of the agreement between the community and the RCMP
required that only a band constable with a special constable appointment could
have the keys to the facility, (see Exhibit # 31). Unfortunately the only band
constable in the community with such an appointment quit. An individual had to
be arrested on a day when there was no inland patrol by the RCMP. No one in
the community had the key to the RCMP detention facility. The RCMP had
retrieved it when the special constable quit. As a result the detainee had to be
driven around the community all night by a band constable while waiting for the
RCMP’s arrival from Thompson.
[102]

Mr. Anderson told the Court that neither MKO nor any other First Nation
organization was invited to participate in the renegotiation of the present PPSA.
He added that MKO only obtained a copy of the PPSA after making an application
under the Freedom of Information and Privacy Act (FIPA). He also pointed out
that the PPSA makes no specific mention of First Nations nor Aboriginal policing
and that word “aboriginal” does not appear in the agreement. In contrast, the
agreement between the RCMP and Alberta lists aboriginal policing as one of the
agreement’s top three priorities.
[103]

He expressed the organization’s concern for the gap in police services
given the present deployment of RCMP in the north. He indicated he understood
[104]

Inquest: Brian McPherson

Page   30

 resources for full-time detachments in each community are not economically
feasible. He expressed the concern that the appointment of special constables
was being abandoned as a potential solution.
Mr. Anderson’s evidence concluded the viva voce evidence. Submissions
were heard from Mr. Girdlestone and Mr. Koch on June 19th, 2015.
[105]

IV.

Assessment and Recommendations:
1. Background:

There is little doubt Brain McPherson would have died on August 27th,
2011 regardless if he was arrested or not. There is, though, clear evidence that he
was not lawfully arrested and that he should not have been detained and
certainly not detained in cells that were overcrowded and in an unacceptable
condition. It is foreseeable that others unlawfully detained and kept in such
conditions could die as well if action is not taken. The issues respecting policing in
Garden Hill that arose in this Inquest mirror, in many respects, the concerns that
motivated Judge Lerner’s recommendations in the Fiddler Inquest Report. The
concerns about the state of band run detention centres and training of guards
and matrons also echo those of several previous inquests reports including the
Calvin McDougall (2015)(also Garden Hill Band Cells), Rachel Wood(2007),
Darlene Owens (2009).
[106]

The inquest heard considerable evidence on the history of policing in
Manitoba and the history of First Nations policing in this province and nationwide.
In addition, evidence was heard concerning the history of the appointment of
special constables and how that history ties into First Nations policing and the
Band Constable Program. The Court heard evidence of historical deficiencies and
current deficiencies in First Nations policing in Garden Hill and province wide.
Reports of previous inquests which have outlined similar deficiencies identified in
this inquest have been considered.
[107]

The Court heard and witnessed significant evidence of deficiencies in the
band operated detention facilities in Garden Hill. I have reviewed previous
inquest reports that have dealt with this subject specifically in Garden Hill and in
other First Nations.
[108]

Inquest: Brian McPherson

Page   31

 The Court had the benefit of reading a number of reports and studies concerning
special constables1, the Band Constable Program2, First Nation policing in
general3, and the FNPP in particular.4 5 6
2. First Nations Policing in Manitoba:
(i) The Band Constable Program:
The history of the Band Constable Program was canvassed in the evidence
of Mr. Levesque and Mr. Lewis, I will not repeat it here. A question left
unanswered by their evidence is - why did First Nations in Manitoba retain the
program when it was abandoned for the FNPP by other First Nations throughout
the country in the 1990’s and early 2000’s? The evidence and studies are not
clear on this point. The PRA study into the Band Constable Program found that a
challenge to FNPP implementation included:
[108]

“...securing the funding of provincial partners, securing funding for
housing and detachment facilities, and maintain funding for band
constables even after an FNPP agreement is implemented.
Communities are reluctant to give up their band constables as a
condition of an FNPP agreement.”7 (Emphasis added)

This study included site visits to six (6) First Nations in Manitoba including Garden
Hill , Wasagamack and St. Theresa Point. In addition to funding issues, it appears
that the study found a level of comfort with the Band Constable Program and
corresponding discomfort with what the First Nation believed they would receive
under the FNPP regime. The study also makes clear, however, that there was
recognition by the stakeholders that the program was woefully underfunded and
the constables undertrained and equipped8. This conclusion echoed the findings
of the Fiddler Inquest Report amongst others. The PRA study recommended that
1

Manitoba Law Reform Commission, Special Constables, Report#96,November 1996
PRA Inc., Evaluation of the Band Constable Program (Final Report), November 2005 –prepared for Public Safety
and Emergency Preparedness Canada
3
Aboriginal Policing in Manitoba, A Report to the Aboriginal Justice Implementation Commission, Linden and
Clairmont (undated)
4
Terms and Conditions for Contribution Funding Under the First Nations Police Program, Public, Safety Canada,
May 2, 2014
5
2009-2010 Evaluation of First Nations Policing Program, Public Safety Canada
6
Report of the Auditor General of Canada, First Nations Policing Program – Public Safety Canada, Spring 2014,
Office of the Auditor General of Canada
7
Supra PRA Inc. report page iv. “The BCP and FNPP implementation”
8
Ibid page 22-23 “Training and Certification”
2

Inquest: Brian McPherson

Page   32

 the Band Constable Program not be discontinued but restructured and reinvested
in as part of a transition to inclusion in the FNPP9. The similarity of this
recommendation to the recommendations of Judge Lerner is striking. As it turned
out, however, the Government of Canada choose to continue the freeze on
funding for band constables at 1992 levels and the following year, froze funding
on the FNPP. This effectively meant it could not expand into those regions that
had not already opted into the FNPP. This affected Manitoba First Nations
disproportionately given the small number of CTA and standalone agreements
reached in Manitoba prior to the 2006 funding freeze.
(ii) The FNSO
As is clear from the evidence of Mr. Levesque and Mr. Lewis, the future of
the Band Constable Program is sealed. In his evidence Mr. Lewis laid out a
persuasive case as to why it should not be revived. He asserted the program was
flawed from the start and that it was implemented with no provision for ongoing
professional supervision or training, no structure for effective discipline and or a
complaint mechanism and no impartial civilian oversight. Although not
specifically stated, the court was left with the firm impression that the province
also questioned the jurisdiction of DIAND to create a police force without the
input or consent of the provinces which have the jurisdiction for the
administration of justice inside their borders. Lastly, although Circular 55 and the
2010 statement of Band Constable General Duties and Responsibilities, (Exhibit #
20), attempted to set parameters on activities of the officers – it appears these
restrictions were seldom adhered to.
[109]

The evidence of Sergeant Huff also made clear another difficulty arising
from the use of an undertrained and unsupervised police force – that being that
the RCMP will not make their detention facilities available when they believe a
detainee may have been detained unlawfully. RCMP detention facilities which are
inspected, up to code, and presumably staffed by trained guards and matrons will
not be made available to those detainees brought into custody by band
constables or securities without powers to detain persons beyond those of an
ordinary citizen.
[110]

9

Ibid page iv-v “The BCP and FNPP implementation”

Inquest: Brian McPherson

Page   33

 Can the FNSO program meet the needs of Garden Hill and similar
communities? Since Mr. Lewis gave his evidence, the proposed regulations for
Bill 5 have been published. They are attached as Appendix “C” to this report,
amongst other things they outline the provincial enactments that FNSO may
enforce including s. 2 of the Intoxicated Person Detention Act. The provincial
enactments to be enforced in each First Nation are determined by the tripartite
agreement contemplated in s. 77.12 of Bill 5. The regulations also set out the
type of training required, who can provide the training, and the type of
equipment an officer can carry depending on the training given to use the
equipment.
[111]

Currently the proposed amendment to the Police Services Act, which
would be enacted as Part 7.2, would govern the parameters and requirements of
the First Nation Safety Officers (FNSO) Program. Given the findings of this inquest
there are significant concerns regarding the direction given to band constables by
their employers under the band constable and “security” system that existed at
the time of Mr. McPherson’s detention. The proposed sections 77.18 and 77.19
set the provision respecting responsibility for the officers and their supervision as
follows:
[112]

s. 77.18(1) First Nation safety officers must be employees of the
operator of a First Nation safety officer program.
s. 77.18(2) The operator of a First Nation safety officer program is
responsible for ensuring that its officers perform their duties and
exercise their powers in a proper manner.
s. 77.18(3) The operator of a First Nation safety officer program is liable
for the acts and omissions of its officers in the performance or exercise,
or intended performance or exercise, of their duties and powers.
s. 77.19 The operator of a First Nation safety officer program must
provide the director with requested information and documents
respecting the operation of the program and its officers.

These proposed enactments result in very little direct supervision of the
officers by anyone other than their employers. This is a structure which is not in
place with respect to other police forces and harkens back to the system used for
the supervision of band constables and special constables. As was demonstrated
in this case, too often, the direction of the band constables fell to persons with
little or no training in proper police procedure, powers of arrest or detention, or
[113]

Inquest: Brian McPherson

Page   34

 search and seizure. The concern is that the requirements to provide information
and documents to the director on his or her request will be too little too late as
demonstrated by the ineffective self-reporting regime put in place by the Federal
Government on the band detention cell issue.
The regulations do not set out the specifics of reporting requirements to
the director concerning “the operation of the program and its officers”, as set out
in s. 77.19, it may be that the intention is that the specifics of this reporting will
be set out in the individual agreements. The concern is that without regulatory or
legislative consequences for ineffective supervision the program may face the
same problems as suffered by the Band Constable Program. Termination of an
agreement as a consequence is not enough – the continuation of the Band
Constable Program in Garden Hill and the continued operation of its substandard
detention facility after the termination of the band constable funding by Canada
illustrates this. This concern is further magnified because there is an
acknowledged gap between the needs of many remote First Nations communities
and the service a FNSO can lawfully provide. The example provided by Mr.
Anderson concerning Lac Brochet illustrates the gaps that will occur. The
temptation will exist for FNSO to do more than they are trained for, or allowed to
do, because they are the only ones there to do it. The narrow powers of arrest
accorded to an ordinary citizen under s. 494 (1) of the Criminal Code, (i.e. found
committing an indictable offence or escaping a peace officer), are not likely fill
this gap when s. 494(3) requires a citizen to deliver an arrested person
“forthwith” to a peace officer. The geographical realities of communities like
Garden Hill, and even more so Wasagamack, St. Theresa Point and many others,
are incompatible with a sole reliance on supplemental law enforcement by FNSO.
[114]

The Court has no information about whether further regulations are
contemplated, prior to the passage of Bill 5, I noted with concern that the existing
regulations do not address the issue of the training of matrons and guards for
detention facilities used by FNSO. There appears to be nothing in the legislation
or regulations respecting the building, maintenance, and operation standards for
such facilities.
[115]

The province should work with the local policing authorities, the RCMP
and the Federal Government to establish as regime whereby First Nation safety
officers and band peace officers would receive supervision and direction in the
execution of their duties from the officer in charge of the collaborating local
[116]

Inquest: Brian McPherson

Page   35

 policing authority, be it the RCMP or otherwise. Local boards could provide
advisory direction (in the case of RCMP supervision), and broader authority, akin
to that exercised over municipal police authorities, where the collaborating force
is not the RCMP. This would divorce untrained individuals from directing the
FNSO in the day to day execution of their duties while giving citizens of each First
Nation a voice in policing strategy to be employed for their community.
There remains the disquieting issue of the adequacy of funding, be it to
the FNSO program or otherwise. Given the MKO 2012 survey of the expenditures
by 19 MKO First Nations on the Band Constable Program , referred to in Mr.
Anderson’s evidence, it appears the proposed funding for the FNSO program,
currently estimated at $2.7 million province wide, will be significantly less than
the funding for band constable program that was largely self financed by the First
Nations. There can be no serious argument that the Band Constable Program was
not seriously underfunded. The overwhelming evidence of this and previous
inquests has been that band constables were underpaid, undertrained, and
underequipped. It is hard to imagine a new system of policing, no matter how
carefully thought out, provided with less resources but faced with the same
challenges will produce a better result.
[117]

It must be remembered that Garden Hill has a population of 2776, (2011
census), a population greater than several towns in southern Manitoba with
RCMP detachments. According to their websites, St. Theresa Point has a
registered population of 3,019 and Wasagamack 1,423 – these two (2)
communities are even further away from the detachment on Stevenson Island.
Red Sucker Lake with an on reserve population of 930 is more isolated yet.
[118]

(iii) The FNPP
The FNPP was born out the conclusions of the policy review conducted by
the Government of Canada in 1991. The review occurred close in time to the
recommendation of a number of inquiries across the country including the
Aboriginal Justice Inquiry in Manitoba. The conclusion was that aboriginal
communities were receiving inadequate and culturally inappropriate policing
both in manpower and in responsiveness to the needs of the communities. The
FNPP was developed to address the deficiencies and to supplement the core
policing provided by provincial police forces.
[119]

Inquest: Brian McPherson

Page   36

 As discussed Manitoba First Nations did not embrace the program like
other first nations across the country. At present there is no funding to allow
expansion of the program to those Manitoba First Nations that are not presently
participating. For those First Nations in the program funding has been frozen at
2006 levels until 2018.
[120]

The Auditor General’s 2014 report on the FNPP was critical that funding
not being used to enhance services and that there was confusion about what
constituted “enhanced services”. It also observed First Nations did not, as was
intended, have meaningful input into the negotiation of policing agreements
under the FNPP. It criticized all levels of government for lack of oversight of FNPP
police facilities (including cells). The Auditor concluded financial performance of
the program was adequately measured but implementation of the principles and
objectives were not adequately measured.
[121]

Despite the difficulties of the FNPP it appears to be one of the few
alternatives available to fill the gap in policing for remote communities even with
the implementation of the FNSO program, however without further funding by
Canada it presents no alternative at all to First Nations such as Garden Hill.
[122]

Recommendation # 1
That the province initiate talks with Canada to provide funding through
the FNPP that allows First Nations in Manitoba to participate in the program given
that the 2006 funding freeze has disproportionally affected participation in the
program by Manitoba First Nations.
[123]

Recommendation # 2
That pending the implementation of the FNPP in Garden Hill and other
affected Manitoba First Nations, the Government of Manitoba consider focused
legislation granting appropriately trained and equipped band peace officers
powers of arrest as set out in section 495 of the Criminal Code in communities
where remoteness requires such a law enforcement presence. In the alternative,
that the province redeploy or enhance policing by the RCMP through the PPSA to
allow for the presence of a fully empowered peace officer, perhaps on a 24/7
inland patrol basis, in each remote First Nation communities working with
assistance of a FNSO.
[124]

Inquest: Brian McPherson

Page   37

 Recommendation # 3
Until such time as the FNPP program can be implemented, the Province
establish in conjunction with First Nations and the Federal Government, proper
training for First Nation safety officers, or band peace officers, working in First
Nation communities including training concerning powers of arrest and detention
as well as search and seizure.
[125]

Recommendation # 4
That First Nation safety officers and band peace officers be properly paid
and equipped and have job security.
[126]

Recommendation # 5
That First Nation safety officers and band peace officers take instruction
from and be supervised by professional police officers who are trained in
appropriate use of powers of detention and arrest as well as search and seizure.
That they be free from the direction of untrained individuals in the performance
of their duties as safety and peace officers and that they be subject to the policing
standard requirements of Part 6 of the Police Services Act.
[127]

3. Detention Facilities operated by First Nations:
The evidence respecting the condition of the band run detention facilities
in Garden Hill has been set out in this report’s summary of the evidence of the
various witnesses heard at this inquest. Their deficiencies are obvious. Sadly a
potential solution to some of these issues that seemed to be in place at the
conclusion of our hearings in Garden Hill in October of 2013 unravelled soon
afterward. Why the RCMP trailer, with up-to-standards cells, was not moved onto
the agreed upon site remains an unanswered question. The Court is concerned
that part of the reason maybe the First Nation’s unwillingness to discontinue the
practice of untrained and unauthorized band constables detaining people for
band by-law violations. It must be clearly stated these are unlawful detentions
and should stop. The deduction of monies from detained person’s welfare
cheques without due process is very concerning.
[128]

Inquest: Brian McPherson

Page   38

 That being said the Court recognizes the issue of substance abuse in
Garden Hill and many First Nations is serious and rightly concerning. Indeed, the
Aboriginal Justice Inquiry, in 1991, itself suggested strong measures be taken to
curb the flow of bootleg liquor onto “dry reserves” that had by-laws prohibiting
alcohol to include amendments to the Liquor Control Act regarding quantities to
be sold and sales to individuals previously convicted of bootlegging.10 Despite this
concern, however, the detention of persons who have consumed alcohol but are
not causing disturbances and are still able to care for themselves cannot be a
reasonable approach. Detention of intoxicated persons in facilities meant for
public protection is fraught with danger. Intoxication often masks signs of serious
illnesses and often intoxicated persons are more prone to falling and internal
bleeding – being placed in cells without bedding and hard walls and floors
presents obvious dangers. It should only happen in the clearest of cases and as a
last resort.
[129]

I endorse the recommendations of Judge Lord in her report into the death
of Calvin McDougall as found at paragraphs 111 to 119 of her report. The
recommendations are as follows:
[130]

It is recommended that the Province of Manitoba in partnership with
the Garden Hill First Nation establish a public safety program in the
community of Garden Hill, Manitoba to respond to the immediate
needs of individuals who are suffering from intoxication by drug or
intoxicants and/or suffering from mental health difficulties, who pose a
danger to themselves or others. (at para. 111)
It is recommended that this program be staffed with trained Peace
Officers authorized to enforce Provincial Statues and Band By laws.
(at para. 112)
It is recommended that the Province of Manitoba in partnership with
the Garden Hill First Nation establish a community safety facility in the
community of Garden Hill to lodge or detain individuals suffering from
intoxication by drug or intoxicant and/or mental health difficulties while
they pose a danger to themselves or others. (at para. 113)
It is recommended that the facility be staffed by individuals trained in
first aid, and with specific training dealing with individuals who are

10

Supra. Linden and Clairmont p. 14

Inquest: Brian McPherson

Page   39

 intoxicated by drug or intoxicant or suffering from mental health
difficulties. (at para. 114)
It is recommended that the facility contain safe sanitary detention cells
that are secure but easily accessible by staff in an emergency. (at para.
115)
It is recommended that the cells be monitored by means of video
equipment as well as frequent in person checks, and that a formal log
be maintained of all video monitoring and in person checks. (at para.
116)
It is recommended that the facility be inspected regularly to ensure the
continuing safety and security of staff and detainees. (at para. 117)
It is recommended that the Province of Manitoba in partnership with
Garden Hill First Nation establish a community referral program to assist
individuals who have been detained due to intoxication and/or mental
health difficulties, to connect with required medical assistance and
support resources upon their release from detention at the community
safety centre. (at para. 118)
It is recommended that a method for regular evaluation of the
community safety program, community safety centre and the
community referral program be included in the First Nation Safety
Officer Program Agreement to ensure that the needs of the community
continue to be met. (at para. 119)

In my view this approach constitutes a more humane and modernized
approach to the detention, when it is necessary, of truly intoxicated individuals.
The recommendations tie into the stated goals of the FNSO program respecting
crime prevention and helping community member access appropriate social
services and it seeks to take advantage of the FNSO programs potential strengths.
Follow up with NADAP, AFM or other social services will do much more to allow
community members to come to grips with the root causes of substance abuse
than deducting money from their welfare cheques.
[131]

Those who are not intoxicated but have consumed or possessed alcohol
should be charged with a violation of the by-law and given an opportunity to
answer to the charge in Court if the First Nation feels that level of enforcement is
still necessary.
[132]

Inquest: Brian McPherson

Page   40

 This approach should lead to fewer detentions and less overcrowding in
detention facilities. This will in turn assist guards in managing and properly
observing the detainees.
[133]

The evidence in this inquest has revealed that a stumbling block for the
implementation of past inquest recommendations respecting the condition of
band run cells is that no senior level of government has taken responsibility for
the maintenance, upkeep and supervision of detention cells on band land. The
province has taken the position that such cells were part of the band constable
program and hence outside the jurisdiction of the province. Canada takes the
position that it provided funds to the Band Constable Program and had no
supervisory duty.
[134]

Unless RCMP cells are put in place in a community and the RCMP accepts
responsibility for maintaining and operating those cells, any other detention cells
should be inspected and supervised by the province as part of its jurisdiction to
administer justice within its borders. The fact that such substandard detention
cells exist and are being used cannot be ignored. Sergeant Huff put it best when
he was asked by inquest counsel:
[135]

“Q. ...do you have any responsibility with respect to the operation of
the Band constable cells here in Garden Hill?
A. Aside from moral ... none.” (Vol. 2 pg. 122 Line 13 -16)

Despite this he helped drive the effort which very nearly resulted in a proper
facility being placed in Garden Hill. His attitude is one to emulate.
Another deficiency which seemed wholly unnecessary and was observed
in Garden Hill and St. Theresa Point was the poor resolution black and white video
feeds from the cells to the guard rooms. Although no technical evidence was
heard by the Court on this matter, it is common in this day and age to walk into
any commercial establishment and see oneself in dazzling colour on a high
definition security camera television screen. It is hard to understand why this
type of widely available technology is not being employed in detention facilities.
All witnesses who were guarding the prisoners on the date of Mr. McPherson’s
death spoke of the difficulty they had observing the prisoners with such poor
resolution video feeds. A number of them agreed they may have seen the blood
[136]

Inquest: Brian McPherson

Page   41

 coming from Mr. McPherson’s nose and mouth if they had a proper high
resolution colour video feed. The addition of audio feeds would further assist
guards to determine if there are sounds, (i.e. snoring or breathing), coming from
individual detainees.
The record keeping at this detention facility left much to be desired. The
log book had very minimal information concerning each detainee. Essentially it
was limited to the person’s name, the names of the band constables and
securities that lodged him, when he was lodged, and when he was released.
Marginal notes were made about how long the individual was to be held or
whether they were to be released to a particular person. Very occasionally a note
of personal items taken from the detainee would be recorded. Although each
witness maintained they took notes of checks done on the prisoners every 15
minutes, no such records were ever produced and certainly no such notations
were kept on the log book. At best the system was a hodge podge not in keeping
with any professional standard. Prisoner record keeping of the standard required
by the RCMP should be the norm.
[137]

The use of guards as police dispatchers should be avoided where multiple
cells have to be monitored. The admission of unauthorized personnel to the cell
and guardroom area should be strictly limited to those escorted by a peace officer
and then only for a limited time.
[138]

Training for the guards in Garden Hill was virtually nonexistent. Some had
first aid training that was current – others did not. The bare bones statement of
duties and responsibilities taped to the guardroom wall were not known to some
of the guards. There was no procedure in place to summons qualified individuals
to respond to a medical emergency despite the close proximity to the nursing
station. There was no evidence of the presence of a defibrillator on the premises
despite this equipment being common at most public facilities throughout the
province.
[139]

Recommendation #6
That standards be established by the Province in conjunction with First
Nations, the Federal Government and the RCMP for the construction,
establishment of and maintenance of any detention facilities on First Nations
[140]

Inquest: Brian McPherson

Page   42

 lands along with a system of periodic inspections to ensure facilities are
maintained to a proper standard of safety and hygiene.
Recommendation #7
That proper standards be established for the operation of detention
facilities including, but not limited to, requirements for proper record keeping in
prisoner log books that include prisoners name, age, medical concerns, officer
who lodged individual, time of lodging and release, and observations of the
guard(s) made during in person intermittent checks of the prisoner that are no
more than 15 minutes apart.
[141]

Recommendation #8
That standards be implemented to prevent overcrowding of cells which
interferes with guard’s ability to meaningfully observe the condition of prisoners
in the cells and that periodic inspections be conducted to ensure operations are
being conducted to the required standard.
[142]

Recommendation #9
That proper first aid equipment including defibrillators be placed in
detention facilities on First Nations lands.
[143]

Recommendation #10
That standards be established to ensure guards are trained in proper
procedures to follow regarding contacting medical or fire services in case of an
emergency. Including establishing a proper medical emergency protocol to
enable guards and matrons to respond effectively to medical emergencies at
detention facilities on a 24/7 basis. That guards and matrons receive training in
first aid, fire safety and security procedures, proper surveillance of prisoners to
determine their health, welfare and rousability, and maintenance of proper
lodging records.
[144]

Inquest: Brian McPherson

Page   43

 Recommendation #11
That those working as dispatchers for First Nations safety officers or band
peace officers not also act as guards for prisoners in the detention cells.
[145]

Recommendation #12
That high resolution colour cameras with sound transmission be installed
in cells to assist guards in effectively assessing the condition of prisoners.
[146]

“Original signed by:”
___________________________________
Malcolm W. McDonald, Provincial Judge

Inquest: Brian McPherson

Page   44

 Appendix 
Operational Manual Island Lake Detachment
To the Inquest Report into the Death

 

 

 

 

 

 

Maid (in. he can u.
OPERATIONAL IIANUAL CHECKS AND CELL BLOCK 
ISLAND LArceosrAcHueur secunmr

l. CPIC Checks

Ensure that CPIC and other appropriate database checks are conducted on all prisoners
before they are lodged in cells, consistent with National l9.l.l. and l) Div 

2. Cell Block Security

2.1. A thorough physical search will be conducted on all prisoners before they are lodged in a
cell and personal effects will be safeguarded and noted on the 01 3. including anything that the
prisoner could use to escape or cause injury.

2. . l. The prisoner will be asked to sign the C-l3 to acknowledge the safeguarding of their
effects. and if a signature is not possible. another member or guard/matron will sign as a witness.

2.2. The Shift Supervisor, or the senior member on shift (in the absence of an on duty Shift
Supervisor) is responsible for ensuring cells are safe and habitable in accordance with \uliunul
03?. 9 . l.

2.3. The Shift Supervisor, or the senior member on shift (in the absence of an on duty Shift
Supervisor) working early day shitt and early night shift is responsible for physically checking
the condition of all prisoners at the beginning of their shift and documenting this check in the
Prisoner Log Record Book.

2.4. The Shi? Supervisor, or the senior member on shi? (in the absence of an on duty Shift
Supervisor) working the late night shi? is responsible for physically checking the condition of all
prisoners at the end of their shift and documenting this check in the Prisoner Log Record Book.

2.5. Physical checks of prisoners may necessitate waking the prisoner to con?rm the appropriate
level of responsiveness outlined as outlined in .\utional 1943'};

Brian L. Huft SGT.

lslagg Lake Detachment
2013-01-14

Appendix 
Operational Manual Island Lake Detachment
To the Inquest Report into the Death

 

 

 

 

 

 

Inn-l 0- TH: cm- My
ASSESSING 19.2
OPERATIONAL MANUAL
RESPONSIVNESSIMEDICAL
ISLAND LAKE DETACHMENT ASSISTANCE
I. General

All members and guards/matrons will be familiar with all directives relative to assessing
prisoner responsiveness and obtaining medical assistance as outlined in National 19.3, and L)
l)i\ 10.2.

 

2. Medical Assistance

2.1. If there is any reason whatsoever to believe that a person is in need of medical assistance as
outlined in the above directives. immediately obtain emergency assistance by calling 456-2626.

Bnan L. Hurt SGT.

Island Lake Machment
2013-01-14

Appendix 
Operational Manual Island Lake Detachment
To the Inquest Report into the Death

 

 

 

 

 

 

u?u rs. us In 
OPERATIONAL MANUAL GUARDING
ISLAND LAKE DETACHMENT PRISONERSIPERSONAL EFFECTS

1. General

1.1. 'lhe applicable directives and unit supplements pertaining to prisoners will be posted on the
?Care and Handling of Prisoners? clipboard hanging on the wall in the Island Lake Detachment

guardroom.

1.2. All members of the island Lake Detachment will. every six months, read the applicable
national and divisional directives and unit supplements pertaining to prisoners in accordance with
National 0M 19.3 9. An acknowledgment sheet for signature is posted with the above noted
documents in the guardroom (1le ml Lam.- lfnit Supplement Appendix 19-3-1)

 

1.3. The Guard Coordinator been appointed as the Island Lake Detachment member responsible
for the orientation, initial training and rc-certi?cation of guards/matrons as well as ensuring that
each guardlmatron, every six months, has read and initialed and understands the guard duties
and applicable national and divisional directives and unit supplements pertaining to prisoners as
outlined in National ?1 19.3.9. An acknowledgment sheet for signature is posted with the above
noted documents in the guardroom 2 x- I. 3.. Unit Supplement Appendix 10-3-2)

1.4. The sign ?Assessing Prisoner Responsiveness" will remain displayed in the cell block area
at all times.

1.5. The bilingual sign informing prisoners of their right to counsel will remain posted in a
conspicuous place in the cell block area.

1.6. Prisoners will be permitted to contact legal counsel in accordance with Nutinnal UM 10.0.

l.6.1. A telephone book will be made available and the 24 hour legal aid number (displayed in
the cell area telephone room) will be provided to afford a prisoner with free legal advice.

2. Prisoner Log Record Book

2.1. A prisoner log record book will be maintained in accordance with National 193;.
3. Supervisor

3.1 . Shift Supervisors will ensure compliance ofl_,; by each member that they supervise.
3.2. Shi? Supervisors will complete quality checks ofC-l 3's and the prisoner ledger in

accordance with 111213951 19.3.4.3.

Brian L. Huff SGT.

Island Lake Detachment
2013-08-01

Appendix 
Operational Manual Island Lake Detachment
To the Inquest Report into the Death

 

nun: cu. tux W. Ito

OPERATIONAL MANUAL GUARDING 19-3
ISLAND LAKE DETACHMENT PRISONERSIPERSONAL EFFECTS

 

 

 

 

 

4. Prisoner Visits
Members are under no obligation to permit or facilitate visits for the prisoners.

The Shift Supervisor, or the senior member on duty (in the absence of an on duty Shi?
Supervisor) has the discretion to allow a visit.

5. Prisoner Meals
5.1. A prisoner in custody over a meal period will be o??ered a meal.

5.2. Due to safety concerns, a meal will not be provided to someone who is intoxicated to the
extent that providing food may be a choking hazard.

6. Guard/Matron Responsibilities

The primary responsibility of the guard/matron on duty is to monitor prisoners in custody
which will include intermittent physical cheeks not more than 15 minutes apart.

Physical checks of prisoners may necessitate waking the prisoner to con? rm the
appropriate level of responsiveness outlined in Nation; 19.3.2

6.2. Prisoners will not be provided with mail, parcels, articles of clothing or medications without
the authorization of a member.

6.3. The total hours in cells and the number of meals served will be tallied on the bottom of form
C-13 by the guard/matron on duty at the time of the prisoner?s release.

6.4. The guard/matron on duty at the time of the prisoner?s release will inspect the vacated cell
to ensure that no articles are led behind.

6.5. Except in the case of an emergency. a prisoner will only be removed from a cell by a
member.

6.6. In the event of a medical emergency immediately call 456-2626 and advise Winnipeg
Telecoms Center. if no members are on duty advise Winnipeg Telecoms at once and they will
contact the on-call member. if necessary, start CPR immediately.

6.7. In the event of a ?re immediately activate the fire alarm, and if time permits, call 456-2626
to advise Winnipeg Telecoms Center.

Brian L. Hull SGT.

Island Lakg Qg?ghmm
2013-08-01

Appendix 
Operational Manual Island Lake Detachment
To the Inquest Report into the Death

 

mu chute:-

MANUAL ?93
ISLAND LAP-IE DETACH HEHT FRIED 

 

 

 

 

 

 

Ifa membe: ie net available, remeve the pit-setters item the detachment te a
safe area euteitle the detachment.

15.12. Slteuid a p?amter start to run away them yet; ertler hith to step. but de not pursue a
?eeing priaener. Observe the diteetien ef travei and advise a member ef the en
hieiher arrival.

Brian L. Hu? SET.
Iel

2111 3-03-91

Appendix “B”
Exhibit List
To the Inquest Report into the Death

EXHIBIT LIST
Exhibit No.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

16
17
18
19
20
21
22
23
24
25
26
27

Description
Autopsy Report with Toxicology Report as well as a Neuropathology
Consultation
Garden Hill First Nation Constable Policing Program Proposal
Statement of Gerry Hastings
Consent to Search
Photo Booklet of In-Custody Death of Brian McPherson
Floor Plan of Cell Block Including Cell No. 1
Guards Duties (Handwritten Page)
Pink Sheets submitted by Brian Huff – Duties and Responsibilities
Re: Guard Duties/Care of Prisoners
The Operation Manual – CPIC Checks and Cell Block Security
Rousability Chart
Preliminary Report of Death
Seized Log Notes from Band Constable Office
Lodged Book
Affidavit of Candace Houston attaching Exhibits A (Band Council
Resolution), B (Garden Hill Band Council Resolution dated September
8, 1987), C (Garden Hill Band Council Resolution dated September 14,
1987), and D (Garden Hill First Nation Band Solvent and Gasoline
Abuse By-Law dated May 4, 1992)
Letter dated October 10, 2006 to Chief of Island Lakes First Nations
Letter dated October 24, 2014
Syllabus – RCMP Training - 2008
Band and Community Constable Training 2010, UCN Training
Schedule
Band Constable General Duties and Responsibilities
Band Constable Program: Detention Cells Prohibited – April 8. 2011
Letter from the Garden Hill First Nations – January 7, 2008
Letter from the Garden Hill First Nations – Use of Unauthorized
Detentions Cells – January 17, 2012
Band Constable Agreement – Garden Hill First Nations – 2007 - 2009
Aboriginal Policing Bundle
Provincial Police Service Agreement – April 2012
Affidavit of Raymond Levesque

 Exhibit No.

28
29
30
31
32
33

Description
Constable List of Garden Hill First Nation
Framework Agreement made June 2001
Letter from Chief Harper to Minister of Justice with Band Constable
Curriculum
Memorandum of Understanding dated May 12, 2012
Letter dated December 1st from Grand Chief to Minister
Letter of Signing of MKO Framework Agreement

 Appendix 
First Nation Safety Officers Regulation
To the Inquest Report into the Death

Co'hLll

Home Manitoba Statutes and Regulations Man Reg 229/2015

 

First Nation Safety Officers Regulation, Man

Reg 229/2015 -

Current version: as posted on Jan 6, 2016

Print: 1:1 PDF
Link to the iatestnger'sion: 
Stable link to 

Citation to this version: First Nation Safety of?cers Regulation, Man Reg 229/2015,
retrieved on 2016-01-18
Currency: Last updated from the Laws of Manitoba Web site on 2016-01-07

 

THE POLICE SERVICES ACT
(C.C.S.M. c. P94.5)

First Nation Safety officers Regulation

Regulation 229/2015
Registered December 30, 2015

TABLE OF CONTENTS

Section
1 Definitions
2 Qualifications
3 Required training
4 Additional enforcement powers
5 Additional duties and powers
6 Agreement must authorize additional
powers
7 Restrictions
8 Additional equipzont
9 Coming into force
Definitions
1 The following definitions apply in this
regulation.

?Act' means The Police Services Act. Loi 
?additional pawers? means

the enlorcement of an enactment set out
in section 4; and

SUR LES SERVICES DE POLICE
to. 994.5 de la C.P.L.N.)

Regiement sur les agents de s?cutit? des
Premieres nations

Reglement 229/2015
Date d'en:egist:ement ie 30 decembre 2015

TABLE ass 

Article
1 Definitions
2 Conditions
3 Formation toquise
Pouvoirs suppl?montaires lies a
l'epplication de dispositions legislativ
5 Attributions ouppi?montaires
6 Pouvoiz: :appl?mentaires - entente
7 Restrictions
8 Material suppl?nentaite
9 Entree en Vigueur
Definitions
1 Le: definitions qui suivent s'appiiquen

au present rogiement.

arms-aerosol Appareii petmottant de
propulser une substance en a?zosol gene in but
de neutralise: une personno. ("aerosol weapon?)

Appendix 
First Nation Safety Officers Regulation
To the Inquest Report into the Death

POLICE SERVICES 99?.5 H.R. 229/2015
the performance of a duty or the exercise entente de fonctionnement Entente conclue
a power set out in section 5. pouvoir en vertu de i'articie 77.12 de la Loi qui autorise
supplementaire une Premiere nation ou une entit? representant
un qroupe de Premieres nations 3 offrir un
?aerosol weapon" means a device from which a programme d'agents de s?curit?. ("operating
substance can be propelled as a spray for the agreement")
purpose of incapacitatlng a person.
(e arms-aerosol Loi La Loi sur les services do police. 
"operating agreement? means the agreement pouvoir supplementaire Pouvoir de faire
entered into under section 77.12 of the Act that applique: les dispositions legislative: indiquees
authorizes a First Nation or an entity 3 l'article 4 et d'exercer lea attributions pr?vues a
representing a group of First Nation to operate a l'article 5. (?additional powers?)

First Nation safety officer program. entente de
fonctionnement a)

Qualifications Conditions
2 A person is eligible for appointment as 2 Les personnes qui satistont aux
a First Nation safety officer if he or she conditions ci-dessous peuvent etre nonmees a titre

d'agentes de s?curit? des Premieres nations 
is 18 years of age or over;
a) elles ont au moins 18 ans;
lb) is a Canadian citizen or a permanent resident

as defined in the Immigration and Refugee b) elles sont citoyennes canadiennes ou
Protection Act (Canada): and r?sxdentes permanentes au sens de la Loi sur

i'immiqration et la protection des refugies
holds a valid class 5 driver's licence. (Canada):

c) elles son: ritulsires d'un pernis de conduire
valide de ciasse 5.

Required training Formation requise

3(1) In order to be appointed a First Nation 3(1) Lea personnes nomm?es a titre

safety officer, a person must have received training d'agentes de s?curit? des Premieres nations son:
respecting the following: tenues d'avoir suivi avec succea one formation

portant sur ies sujets suivents 
public safety and crime prevention:
a) la s?curit? publique e: la prevention du crime;

victims' services and social services:
b) les services aux victimes et les services
to) enforcement of provincial enactments; sociaux;
arrests. searches and seizures; c) l'application des textes provinciaux:
to) use of force and officer safety; d] lee arrestations, 1e: perquisitions et les
saisies;

note-taking. report writing, interview basics
and court preparation. e] 1e recours a la force et la s?curit? des agents:

f: la prise do notes. 1a redaction de rapports, les
techniques d'entretien et la preparation en vue
des audiences judiciaires.

Appendix 
First Nation Safety Officers Regulation
To the Inquest Report into the Death

SERVICES DE POLICE

3(2) The training set out in subsection (H
may be provided by one or more of the following:

the Royal Canadian Mounted Police:
the Winnipeg Police Service:
to) the Brandon Police Service;

to) the Manitoba Department of Justice;

a service provider that has been approved by
the director.

Additional enforcement powers
4 Subject to section 6, a First Nation
safety officer may enforce the following enactments:

sections 75, S, 119, 120.5, 138. 145, 147
and 222 and subsections 16(3), 88(1)

and (2), 95(3), 122(1), 124(1). 137(5), 139(2),
140(1) and (2), 141(5), 145.1(2) and (3). 
183(1) and (1-1). 186(3), (6) and (9),

188(2). 215.1(2) and 221(1) Of The
Highway Traffic Act:

subsection 28(1) of The Off-Road Vehicles

Act:

section 63 and subsection: 57(1), 62(1), 75(4)
and 75(5) of The Liquor and Gaming Control
Act)

subsection: 3(1) and (2) of The Minors
lntoxiceting substances Control Act:

Additional duties and powers

5 Subject to section 6, a First Nation
safety officer may perform the following duties and
exercise the following powers:

directing traffic under subsection 76(1) of The
Highway Traffic Act:

stopping vehicles under subsection 76.1(1) of
The Highway Traffic Act:

requiring production or documentation under

clauses to or The Highway Traffic
Act:

Insert Date

P94.5 R.M. 229/2015

3(2) Lo formation visee au paregraphe (1)
pout ?tre fournie par 

a) la Gendarmerin Royale du Canada:
b) In Service de police de Hinnipoq;
c) 1e Service de police do Brandon;
d) Is ministers de la Justice du Manitoba:

e) on tournisseur de services approuve par 1e
directeur.

Pouvoirs supplementaires lies a l'appiicatlon de
dispositions legislative:

4 Sous reserve de l'article 6, les agents do
securit? do: Premieres nations peuvent tairo
applique: les dispositions l?qislarives suivantes 

e) les articles 75, 85, 119, 124.5, 138, 1?5, 117
at 222 sins: que les paragraphes 76(3),
88(1) et (2), 95(3), 122(1), 124(1), 137(5).
139(2). 140(1) et (2), 141(5). 145.1(2) et (3).
182(3), 183(1) at (1.1), 186(3). (6) et (9).
188(2), 215.1(3) et 221(1) du Code de
in route;

b) le paragraphe 38(1) de la Loi sur les vehicules
a caract2re non routier;

c) 1'article 63 ainsi que les paragraphos 57(1),
62(1), 75(r?glementation
des alcools et des jeux:

d) les paregraphes 3(contr?le des substances intoxicantes et les
mineurs.

Attribution: supplementaires

5 Sous reserve as l'article 6, les agents do
securit? des Premieres haciens peuvent exorcer les
attributions suiventes 

a) diriger la Circulation conforn?ment au
paragraphe 76(1) du Code de lo route;

b) ordonner ou conducteur d'un v?hicule de
s?erreter conforn?ment ou paregraphe 76.1(1) du
Code de la route:

c) exiqer la communication dos renseignements
ou la presentation des documents Vises aux
elinees 76.1(1la) a c) du Coda do to route;

Appendix 
First Nation Safety Officers Regulation
To the Inquest Report into the Death

POLICE SERVICES

(6) taking an intoxicated person into custody
under section 2 of The Intoxicated Persons
Detention Act:

staying with a person taken into custody by a
member of the local policing authority for an
involuntary medical examination or involuntary
assessment under The Mental Health
Act, as requested by a member of the local
policing authority under subsection 15(1) of that
Act!

apprehending children under section 53 of
The Child and Family Services Act.

Agreement must authorize additional powers
A First Nation safety officer may

to) enforce a specific enactment set out in
section 4; or

perform a specific duty or exercise a power
set out in section 5:

only it the operating agreement expressly authorizes
First Nation safety officers to do so.

Restrictions
7 A First Nation safety officer who
exercises additional powers under this regulation is
subject to the following restrictions:

(8) the officer may exercise the additional powers
only within the area specified in the operating
agreement, except the power set out in

clause Ste):

(D) the officer may exercise the additional powers
only when he or she is on duty;

the officer must not engage in the vehicular
pursuit of a person suspected of committing an
offence under an enactment referred to in
section 4.

994.5 H.R. 229/2015

d) mettre sous garde une personne en ?tat
d'ebri?te conformement a l?article 2 de la Loi sur
la detention des personnes en etat d?ebri?te;

e) demeurer avec une personne appr?hend?e par
un membre du corps policier local atin qu'eile
snbisse un.examen medical obligatoire ou uns
evaluation obiigatoire
contorm?ment a la Loi sur la sant? uentale,
lorsqu'un nembre de ce corps 1e leur demands
en vertu du paragraphe 15(1) de cette loi:

f] apprehender un entant conforuement a
l'articie 53 da la Loi sur les services a l'enfant e:
a la Eamiile.

Pouvoira supplementaires - entente

6 Les agents de s?curit? des Premieres
nations peuvent faire applique: les dispositions
legislatives indiqu?es A l'article i et exercer les
attributions pr?vues a l'article 5 seulement si
l'entente de fonctionnement les a expressement
autoris?s a le fairs.

Restrictions
7 Les agents de.sGCurite des Premieres
nations qui excrcent les pouvoirs suppl?mentaires
vis?s per is present r?glement sont assujettis aux
restrictions suivantes 

a) iis peuvent exercer ces pouvoirs soulemen:
dens lo territoire vise par l'entente do
?0nctionnement, seof dens le cas vise a
i'alin?a 5a):

b) 115 pouvent les exercer uniquement s'ils son:
on service;

c1 i1: ne peuvent poursuivre a bord d'un v?hicule
une personne soupconnee d'avoir commie one
infraction a une disposition legislative
mentionnee a l'article 4.

Appendix 
First Nation Safety Officers Regulation
To the Inquest Report into the Death

SERVICES DE POLICE 994.5 - R.H. 229/2015
Additional equipment Materiel suppl?mcntaire
8 A First Nation safety atticer may carry 8 Dans i'exercice de leurs tonctions, leg
and use the following equipment uhilo on duty: agents de s?curit? do: Premieres nations peuvent
porter et utilise: des menottes, un baton de defense
handcuffs; ou une arme-aerosol 5'113 ont recu une formation
portant an: ieur utilisation par une entit?
a defensive batOn; mentionn?e au paraqzaphe 

an aerosol weapon:

if he or she has received training in the use of that
equipment by an entity set out in subsection 

Coming into force Entree en viqueur

9 This regulation comes into force on the 9 Le present reglement entro en vigueur en
same day that The Police Services Amendment Act meme temps quc la Loi modifient la Loi sur is:
(First nation Safety Officers), S.M. 2015, c. 3. services de police (agents de s?curit? des

comes into force. Premieres nations). c. 3 des L.M. 2015.

December 29, 2015 Acting Minister of Justice/Le ministre suppl?ant de la Justice.

29 d?cembre 2015

James Allum

Insert Date

0