VANCOUVER—An adjudicator has ruled that two Vancouver Police Department officers acted “without lawful authority” in conducting a pat-down search of a man they suspected of mail theft in 2016, in a ruling that civil liberties advocates say points to “systemic issues” around police actions.

According documents from the Office of the Police Complaint Commissioner (OPCC), on March 25, 2016, VPD constables Mark Lobel and Viet Hoang were investigating a mail theft near the 2800 block of Kingsway in the early hours of the morning, when they stopped Cameron McDonald, whose description had some similarities to that of their suspect.

While stopped, McDonald refused to identify himself. The officers held him in investigatory detention, and Hoang searched his pockets for ID. A week after the incident, McDonald filed a complaint to the Commissioner, claiming the officers abused their authority and had no cause to search him.

Adjudicator Ronald McKinnon ruled last week that while the officers did not commit misconduct in detaining and handcuffing McDonald, they “acted without lawful authority” when they moved to search McDonald for identification.

McKinnon said that officers are only permitted to conduct a “protective pat-down search” if there are reasonable grounds to believe there was a risk to safety — but that there were no such grounds based on McDonald’s behaviour.

However, due to Hoang’s testimony where he said his understanding of the law was incorrect at the time, McKinnon ruled that search was not done “intentionally or recklessly.”

McKinnon went on to recommend that the Chief of the VPD should “remind” officers of the rules around pat down searches.

“It appears ... that some members have, as a matter of routine, ignored the need to have a reasonable belief that upon detention there is an actual concern for officer safety before conducting any search,” said McKinnon in his decision.

The ruling was the conclusion to a two-year process in which the complaint was first ruled to be unsubstantiated by the VPD internal investigator in March 2017, then challenged by the Commissioner a few months mater, and then eventually moved to a public hearing beginning in April 2018.

Meghan McDermott, staff counsel at the British Columbia Civil Liberties Association, said that while searching someone in investigative detention is different from street checks or carding, “there are a lot of similarities with the two situations,” where a person could be stopped on the street and asked for identification.

The BCCLA, together with the Union of B.C. Indian Chiefs, filed a complaint in 2018 based on data showing Indigenous and Black people in Vancouver were street checked at a disproportionately higher rate than the rest of the population. After an internal investigation that found there was “no statistical basis” for suspecting discrimination, an independent, third party review was launched, which will conclude in July.

McDermott said that the OPCC ruling points to “systemic issues” with how police are trained.

“If police themselves and educators don’t know the state of the law with respect to our personal civil liberties how should members of the public,” said McDermott. “It’s a symptom of a system not working as it should be ... it’s concerning officers at the VPD are so unclear about legal rights.”

Cam Loveless, manager of investigations at the Office of the Police Complaint Commissioner, said that it was “not unusual” for his office to get these type of complaints.

“Searching during detentions, that’s an area our office will continue to investigate,” Loveless told the Star Vancouver.

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Jason Robillard, spokesperson for the VPD, said that they will be reviewing the recommendations and will move to update officers either through training session, a bulletin or email.

“This is definitely something that we would look at and choose an avenue and get this out to our membership,” he said. “We want to update our members if there is a need identified.”

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