An ongoing discipline ruling against a New Westminster police officer has stretched more than three years and still has not reached a final conclusion.
The original incident involving Const. Wendy Bowyer occurred in March 2009. The case has gone through twists and turns, culminating in several court cases heard in the B.C. Supreme Court, including one concluded on July 10, 2012.
The original incident revolves around Bowyer and a case on March 23, 2009, where she and two other officers arrested a youth on an outstanding warrant.
The next day, the New Westminster Police Department received a complaint alleging misconduct by Bowyer during the arrest.
One day later, Sgt. Todd Matsumoto began an investigation looking into whether Bowyer committed five counts of misconduct.
The five counts, in order, were: discreditable conduct for breach of Charter rights; discreditable conduct for making a false or misleading statement; abuse of authority for arrest without lawful authority; abuse of authority for excessive force; and neglect of duty for failing to file a subject behaviour report.
On Sept. 14, 2010, Matsumoto presented his report to New Westminster Chief Const. Dave Jones. In his report, Matsumoto recommended the first four counts be substantiated.
Details of the March 23 incident stem around whether Bowyer and the two other New Westminster officers had the legal right to enter a home where the youth was and then the subsequent testimony provided to Matsumoto as he investigated the incident.
These details were revealed in three separate court documents, a Notice of Decision on Review of Final Investigation Report, written by retired judge, the Hon. Ian H. Pitfield, containing redactions on the names of the officers involved in the case; a petition by Bowyer against Stan Lowe, Police Complaint Commissioner, and Pitfield, dated May 18, 2011 and challenging Lowe's appointment of Pitfield; and a petition by Lowe against Pitfield, Bowyer and Jones challenging Pitfield's parameters for adjudicating the case. Only the first document contains redacted names, while the two subsequent documents reference Bowyer.
According to Pitfield's report, in testimony Bowyer gave on June 15, 2009, she stated "that the door was open a 'smidge', which she describes as about an inch, and each time she knocked, it opened further to about four or five inches."
But Bowyer's testimony was put into question on July 8, 2009, by a fellow officer, whose name has been blacked out or redacted from Pitfield's notice of decision.
The officer's testimony was: "I believe the handle was a, a round-shaped handle and she, yeah, she just twisted it. It was unlocked and then she just, saw and I think she was checking to see if there was a chain on it or anything, but she just kind of gave it a, a light push."
The discrepancy led to Matsumoto visiting the apartment with another officer to examine the door.
He reported the front door is "heavier than interior doors, with a self-closing hinge. . The door could not be propped open without using either the deadbolt or wedging an object between the door and the door jamb . (and) the door could not be opened by knocking."
Matsumoto interviewed Bowyer again on Dec. 2, 2009 and Bowyer reiterated her account: "I think as I knocked the first time, I may have knocked it just slightly open a little bit more, but then I used two fingers and I tapped it open, fully open."
Bowyer would later say: "I absolutely did not open that door."
Matsumoto then ordered a re-enactment of the door incident later that day.
His findings were: "The record of the event suggests that (Bowyer) was not able to place the door in the open position she had found it on March 23, 2009, because it kept closing. While she was able to push it open with her thumb and finger, she was required to use her foot to keep it open."
After Matsumoto submitted his report to Jones, a little more than two weeks later, on Sept. 29, 2010, Jones issued a Notice of Discipline Authority's Decision where he found counts 1, 3 and 4 substantiated, and counts 2 and 5 unsubstantiated. Jones proposed sanctions and offered a pre-hearing conference.
On Oct. 29, 2010, Lowe reviewed Jones' decision and decided there was a reasonable basis to believe that Jones' decision regarding count 2, Bowyer's discreditable conduct for making a false or misleading statement, was incorrect.
Lowe then appointed a retired provincial court judge, Brian Neal, as an adjudicator in the matter.
On Nov. 22, 2010, Neal released his Notice of Discipline Authority's Decision, where he considered all five allegations and reached the same conclusions as Matsumoto, namely that allegations 1 to 4 were substantiated. On Jan. 31, 2011, Bowyer appealed Neal's decision.
A new twist in the case occurred when Neal recused himself on March 23, 2011, and two days later, Pitfield was appointed in his place.
In Pitfield's notice of decision, released on April 18, 2011, he found Bowyer's statements on June 15 and Dec. 2 "appear to constitute misconduct because they appear to be false or misleading."
Pitfield's judgment also notes that Bowyer "acknowledged that she was aware that if the door had been closed, opening it and entering would have been unlawful."
In his Notice of Next Steps, he wrote: "The evidence referenced in the final investigation report appears sufficient to substantiate the allegation that (Bowyer) committed the disciplinary default of deceit . on June 15 and Dec. 2, 2009 by stating that the door . was open when she attended the residence on March 23, 2009, which statements were false and misleading.
"The disciplinary or corrective measure being considered is suspending (Bowyer) without pay for not more than 30 days."
But Pitfield's Notice of Decision still has not been fully enacted because of two petitions that have gone through the court process in the last two years.
Bowyer filed another petition on April 27, 2011, alleging that Lowe exceeded his jurisdiction by appointing Neal because he was not a retired judge, but rather a part-time judge. And when Pitfield was appointed, it exceeded the 20 business days that Lowe had to appoint an adjudicator.
Justice Kelleher ruled against Bowyer on May 18, 2011, concluding that Lowe "did not lose jurisdiction to make a replacement appointment . and neither the time limits, nor the previous appointment of Judge Neal prevented (Lowe) from appointing Mr. Pitfield."
Lowe also filed a petition, naming Pitfield, Bowyer and Jones as respondents.
In that petition, Lowe takes issue with Pitfield's decision to only rule on Count 2, discreditable conduct for making a false or misleading statement. Lowe asserts that "if retired Justice Pitfield determines that the conduct as set out in Count 2 appears to constitute misconduct, retired Justice Pitfield assumes the powers and performs the duties of discipline authority in respect to all substantiated allegations associated with this matter."
Pitfield's Notice of Decision only referred to Count 2, with Jones' decision on counts 1, 3 and 4 designating him as the discipline authority.
In Justice R. Punnett's decision on Lowe's petition, Punnett ruled against Lowe and affirmed the April 18, 2011, Pitfield ruling.
Jones said because of privacy rules and the redaction of names, he could not confirm any details from the Pitfield decision.
But he did tell The Record the Bowyer case has moved forward and all parties are still waiting for a final decision.
As for how long the entire process has taken, Jones could offer comment.
"It's taken too long," he said. "This is an administrative process that needs to be quicker. . We need to cut down on the time this process takes."
Jones said with recent amendments to the Police Act, there are many more areas open for interpretation. That means people challenging different parts of the act and, as seen in the Bowyer case, challenges over jurisdiction.
"It's a double complication," he said. "You have a case and then challenges that come into play surrounding that case. That's taken a lot of time."
The Record tried to contact Bowyer's lawyer, David G. Butcher, on two separate occasions in January asking for official comment, but Butcher has not yet responded. The Record also left a message for Bowyer, via her voice mail with the New Westminster Police Department, but she also has not yet responded.
The Record also tried to contact Bowyer through the New Westminster Police Department's media spokesperson, Sgt. Diana McDaniel. McDaniel said the department could not comment on issues outside of its jurisdiction, and that what Chief Const. Dave Jones said in his interview would be the extent of public comment offered at this time.
