Former senator Murray Sinclair says Manitoba's Independent Investigation Unit is neither independent enough nor transparent enough to properly investigate police-involved fatal shootings.
As a result, the former associate chief judge of Manitoba does not trust any of the recent rulings made by the IIU, he said.
"I don't have a lot of faith in the Independent Investigation Unit that's in place right now to look into police officer conduct," Sinclair told CBC Manitoba.
"I can't think of an instance where they've truly done a transparent thorough investigation that has convinced me … that their decision is the right one in the circumstances."
Sinclair spoke to the CBC about the 30th anniversary of the release of the report of the Aboriginal Justice Inquiry this month. He was co-commissioner of the inquiry, which was mandated to probe the role that racism played in the 1971 homicide of Cree teenager Helen Betty Osborne and the 1988 police shooting of Indigenous leader John Joseph Harper.
The report made 296 recommendations to guide the province's efforts to reduce the presence of racism in the justice system.
It included a recommendation to create a special investigative unit, independent of both police and the Crown, to handle any complaints "where possible criminal acts are alleged against the police, or where a person dies or suffers serious injury in an incident involving a police officer," the report says.
In 2015, the province created the Independent Investigation Unit of Manitoba.
In the past two years, the unit has investigated multiple fatal Winnipeg Police Service involved shootings. In two of the three, the report recommended that no charges be laid against the officer involved. Charges were also not recommended in a March 2020 police shooting.
They have a vested interest in ensuring that they don't tick off the city police - Murray Sinclair
"It's the lack of transparency, I think, that really drives me around the bend," said Sinclair, who also chaired the more recent national Truth and Reconciliation Commission.
Specifically, he's concerned that the evidence presented is filtered through the police agency under investigation.
The unit's information comes from "what they're told by the police" and "what they're told by witnesses who are called by the police to give them reports," Sinclair said.
"They don't reveal who they spoke to. They don't reveal what the evidence is that they've gathered."
He also says those doing the investigations and those being investigated are — in one way or another — too close to each other for comfort.
"[Investigators] will tell you that they're not part of the City of Winnipeg police department or the RCMP, which is true, but they're part of the government of Manitoba," Sinclair said.
"They're part of the Department of Justice, and the Department of Justice has a working relationship with the city police force or with the RCMP."
As a result, their objectivity could be affected, he said.
"They have a vested interest in ensuring that they don't tick off the city police and they don't get the RCMP officers mad at them, because they will be accused of conducting a witch hunt or they will be accused of being unfair to them by being fair."
Though it isn't, Sinclair said the IIU should be headed by a judge, who "is totally independent and doesn't have to worry about job security or doesn't have to worry about the impact of the community upon their careers, or impact of their decisions upon their careers."
'No one tells us what to do': IIU director
Zane Tessler, the executive director of the Independent Investigation Unit, is both a former Crown attorney and a former defence lawyer. He disputes Sinclair's claims.
"No one tells us what to do, and no one should tell us what to do," Tessler told CBC. "I'm the one that's accountable for the decisions and I'm the one that's solely responsible for those decisions."
Tessler also challenged Sinclair's assertion that the unit is not transparent. It provides reports, available to the public, on each investigation, which outline the evidence presented, he said.
"We provide more information, I believe, in the reports that we release publicly than any other office in this country," Tessler said.
"We provide an overview of the entire journey that we have conducted. We identify all of the witnesses and materials that we have interviewed or received and reviewed."
Sinclair is not the first to allege that the IIU is not impartial.
Robert Taman, whose wife, Crystal, died in a crash involving an off-duty police officer in 2005, stepped down from the Manitoba Police Commission in 2016 after a Winnipeg police officer joined the IIU.
The commission assigns civilian monitors to investigations conducted by the IIU when someone dies or is seriously injured in incidents involving police officers.
"To have them actually conduct an investigation against one of their former brothers in a crime situation, I think they would have a difficult time separating themselves in the situation, and I just feel it should be an outside source," Taman told CBC News in 2016.
We're never going to please everyone at the same time - Zane Tessler
In 2021, the family of Eishia Hudson also expressed concern about the transparency of IIU investigations. In April 2020, the 16-year-old was shot and killed following a pursuit, in which police say she drove a vehicle involved in a liquor store robbery in Winnipeg's Sage Creek neighbourhood earlier that day.
In January 2021, the IIU exonerated the police officer involved in the fatal shooting.
Her father, William Hudson, told CBC they still don't know the name of the officer involved in his daughter's death.
"When we drive by and see a police officer, or a police officer stares at us, is that the cop that shot our daughter?" William Hudson asked.
The names of people involved in investigations are protected under the Freedom of Information and Protection of Privacy Act, the IIU website says.
Tessler said that's for good reason.
"We don't give out names. That's true. We are anonymous," Tessler said.
"It doesn't add anything more to it, and in fact, it may well traumatize other victims, having to have their name or identity released publicly."
The Aboriginal Justice Inquiry's original recommendation for an investigative unit also called for it to have at least one Indigenous member, particularly when the victim is Indigenous.
While two members identify as BIPOC (Black, Indigenous or people of colour), none are Indigenous, Tessler said.
The eight-member unit is currently made up of two former members of the Winnipeg Police Service, two former members of the RCMP, one former member of the London Metropolitan Police in Great Britain, and four civilian members, he said.
Tessler realizes, he said, that not everyone will agree with either the IIU investigations or the decisions he makes.
"We're never going to please everyone at the same time. It's part of the territory that we operate under," he said.
"I just want people to know that we do an honest day's work here and we present an honest day's product at the end."
Sinclair said he has little faith in the investigation unit that he called for in the AJI report 30 years ago.
"I did [call for it] and I still believe that's needed, and we don't have it."