Garden Hill man who died in jail was unlawfully detained: inquest report

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This article was published 11/02/2016 (2989 days ago), so information in it may no longer be current.

A man who died in a holding cell in Garden Hill five years ago was unlawfully detained, a judge ruled in a long-awaited inquest report Friday.

Brian McPherson probably would have died anyway, given his fragile health and history of drinking, but the conditions in this fly-in community are so bad that others thrown in the same cells will most certainly die if nothing is done.

“There is little doubt Brian 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,” Provincial Court Judge Malcolm McDonald concluded.

“It is foreseeable that others unlawfully detained and kept in such conditions could die as well if action is not taken,” the judge warned in blunt language.

Sadly, conditions on Garden Hill reflect federal and provincial funding and policy decisions which are also reflected on other First Nations throughout Manitoba, he said.

The inquest called for an overhaul to First Nation policing services and facilities.

Garden Hill is a remote Oji-Cree First Nation located 980 kilometres northeast of Winnipeg.

The inquest report collected testimony from numerous witnesses, including fellow cell mates, band constables, guards, RCMP and officials with the provincial, federal and band levels of government and ran 63 pages, much of it echoing the accounts of earlier inquests going back years, along with their extensive recommendations for reform.

The McPherson inquest delivered 12 detailed recommendations that cover the need for better training, equipment and facilities.

“The issues respecting policing in Garden Hill that arose in this inquest mirror, in many respects, the concerns that motivated Judge (Sid) Lerner’s recommendations in the Fiddler Inquest Report,” the judge noted.

Glenn Fiddler, 18, was trapped inside a band police holding cell at Wasagamack First Nation when the building was set on fire on March 29, 1999. Wasagamack is one of two First Nations, along with St. Theresa Point, located near Garden Hill.

The concerns about the state of band run detention centres and training of guards also echo those of several previous inquest reports including the Calvin McDougall report in 2015 in Garden Hill band cells as well as the probes into the deaths of Rachel Wood in 2007 and Darlene Owens in 2009, the judge noted.

The report offered the first glimpse into what happened in the early morning hours of Aug. 27, 2011 when police were called to McPherson’s home.

The inquest learned that another band resident had called police to the house with a complaint about a drinking party. Garden Hill is “dry reserve,” where distribution of alcohol is illegal.

A number of police, including band constables entered the home. They found a group drinking a homebrew called Super juice. Super juice is a concoction made with fermented yeast which health authorities have repeatedly described as not only illegal but often toxic.

Despite the fact there was no evidence the party was loud or violent, police took everyone there into custody, including McPherson. The next morning, the 44-year-old man was found dead and “half purple” when guards went to check on the cells. There were 30 people held overnight on that date.

The detainment was “unlawful,” because none of the band constable had the authority to arrest anyone, the judge ruled.

Jailing people in such remote locations where there are no regular police forces on hand simply for being intoxicated should be abandoned and individuals handed citations instead for breaking local band bylaws, the judge said.

He called attention to the odd police practice in Garden Hill of arbitrarily deducting anywhere from $75 to $100 off welfare cheques for people who are thrown in jail “concerning.”

What happened next in the hours leading up to McPherson’s death from heart failure was nothing less than tragic.

McPherson had a history of addictions who depended on diabetes medication. He was in such fragile health that his family often used a mirror to check to see if he was still breathing as he slept, the inquest heard.

Fellow cell mates yelled and banged on the cell door to get guards’ attention when they saw McPherson had stopped breathing after they were detained. But the calls for help were ignored, the result of a combination of factors, including the overcrowded conditions, an antiquated surveillance system of black and white cameras in the cells and little or no training for guards and band constables in the community.

First Nations have long warned that a federal decision to freeze funding and then dismantle a long-running local constables program on First Nations was short sighted. Indigenous leaders have also long argued for a well trained police force with decent facilities on First Nations. Both are points that the inquest report also emphasized in its lengthy recommendations.

Manitoba First Nations have kept band constable program going, despite the problems, a decision that clearly baffled the judge. He was equally puzzled by provincial and federal arguments that they lacked jurisdiction or oversight to fix the problems.

“The inquest heard considerable evidence on the history of policing in Manitoba and the history of First Nations policing in this province and nationwide,” the inquest noted.

“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,” the inquest noted.

The inquest called on the province to work with local policing authorities, the RCMP and the federal government on a policing system where peace officers on First Nations are directly supervised by the nearest RCMP detachment.

McPherson was a family man who worked for many years at the Garden Hill Convenience Store and at the time of his death the store manager Brant Small said McPherson really well liked. “He never did anything wrong to anybody,” Small said. “He was one of my best employees.”