2 Montreal police officers suspended for lying about man who died in custody win appeal

ii Montreal police force officers who were suspended for prevarication nigh the wellness condition of a man who died in custody have won their appeal — thanks to a technicality about how the evidence against them was gathered. 

A Quebec court judge decision issued last month overturns the initial decision from 2023, in which the police ethics committee slammed the two officers — Dominic Gagné and Mathieu Paré.

At the time, the police ethics committee said the officers were caught in a lie and tried to "explain the inexplicable" after it became clear that there was video footage that contradicted their claims.

But following an appeal, Quebec court Judge Alexandre Henri ruled that evidence against the two officers was obtained in a way that violated their Charter right against self-incrimination because they were not told they had the right to remain silent. 

As a result, the judge significantly reduced the suspension for the two officers from 22 days without pay to two days. 

The July ruling largely revolves around the way meetings between the two officers and the province's police watchdog unfolded.

And it's the latest twist in a case that goes back nearly eight years, when David Tshiteya Kalubi died the same night police arrested him.

Kalubi was 23 years old.

On Nov. 7, 2017, Kalubi was a passenger in a car that was pulled over during a traffic stop. Police discovered there were two outstanding warrants for his arrest and brought him to their operations centre in the city's east end.

While being processed, police asked him if he had any medical conditions they should know about: He told them he had sickle cell anemia and needed medication to treat the condition. He did not have it on him at the time. 

But the officers, Paré and Gagné, didn't log that information on the inmate control sheet and Kalubi died hours later after being transferred to be detained at municipal court.

A Quebec coroner ultimately concluded that Kalubi did not die because he didn't have access to medication, but the officers' actions were still the focus of an investigation by the province's police watchdog, the Bureau des enquêtes indépendantes (BEI).

BEI investigators met with the officers, one at a time, in January 2018.

After BEI investigators presented video footage that showed Kalubi had told them about his condition, "Paré ended the meeting and left the premises," the Quebec court ruling reads.

"Gagné also watched the video. On the advice of his lawyer, he indicated in a written statement that he would not add further details to his version of events."

In his decision, the Quebec court judge contemplated whether the BEI's investigation was administrative or criminal in nature. 

He believes it was clearly the latter. 

And if the meeting with the officers is part of a criminal investigation, the officers, according to the judge, had to be told they had the right to remain silent. 

Judge Henri described the violation of the officers' rights to silence and against self-incrimination as "grave" and said "the officers are somewhat trapped by the BEI investigators that wait until Paré makes his statement to show them the video."

"The court is of the opinion that the protection of the fundamental rights of the police officers must prevail over the search for the truth," his ruling reads.

"By excluding the police officers' reports and statements as well as their testimony linked to those documents, it becomes difficult to conclude that they gave the BEI statements that they knew were false or inaccurate."

According to the July court decision, the police ethics commissioner warned against introducing concepts from criminal proceedings into ethics cases.

Alexandre Popovic, a spokesperson for the Coalition Against Police Repression and Abuse is hoping there will be an appeal and believes a Superior Court judge could have a different interpretation. He says the judge in Quebec court blurred the line between criminal and ethics investigations.

"In police ethics trials, the police officers have no right to silence. They have an obligation to testify. These are two different kind of legal settings," Popovic said. "Those cops lied to BEI investigators. Now, they only get away with two days suspension."

We've also reached out to the Montreal Police Brotherhood for comment and are waiting to hear back.

Montreal police acknowledged they were aware of the decision but declined to comment, citing ongoing legal proceedings.

In addition to his argument that the officers had a right to remain silent because the BEI investigation was criminal in nature, the Quebec court judge in last month's ruling also brought up a Quebec Court of Appeal decision from 2024.

In that case, the province's highest court sided with the Montreal Police Brotherhood and a group representing local police officers across the province and said officers had the right to remain silent and had no obligation to submit their version of events during BEI investigations.

Although this came after the police ethics committee's decision to suspend the two officers, it reaffirmed a lower court ruling from 2022.

"In retrospect, it would've certainly been more prudent, even advised, for the committee to suspend its proceedings while waiting for the Court of Appeal," the judge wrote.

He also said that the 2024 Court of Appeal ruling had to be applied retroactively because it was a "judicial change of law" and not just a legislative change. 

By ruling that the officers did not knowingly lie to investigators — in light of the evidence now deemed inadmissible — the judge shaved 20 days off their 22-day suspensions without pay. 

They are still suspended for two days for showing negligence and carelessness toward Kalubi's health and safety by failing to document his medical condition.

In 2019, the province's Crown prosecutor's office announced there would be no charges laid in connection with Kalubi's death.

Journalist

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