And while a review of the case found no evidence of impropriety or overt bias, the report concludes the decision may undermine the public's confidence in the agency's work.
The report, released Monday, examines how the Independent Investigations Office responded to the death of Gregory Matters, a former soldier who was killed in September 2012 during a standoff with RCMP in Prince George. Matters' family is now suing the RCMP.
Matters died on the same day the Independent Investigations Office, or IIO, opened its doors, and a subsequent investigation later cleared the officers involved in his death of wrongdoing.
A former investigator who was involved in the Matters investigation filed a formal complaint about how the case was handled, prompting the IIO to appoint Vancouver lawyer Mark Jette to conduct a review.
Jette's 31-page report paints a picture of an agency that was not yet ready to take on a major case, particularly when it came to finding qualified investigators.
When the IIO received the call about Matters death, the agency's civilian director, Richard Rosenthal, deployed a team that included two men with extensive careers in policing: Roy Fitzpatrick and Patrick Kennedy.
However, neither were legally permitted to work as investigators with the agency.
Under the law, investigators cannot have worked for a police force in B.C. for at least five years and they cannot be on the payroll of any police agency.
At the time, Fitzpatrick was on secondment from the IIO's counterpart in Alberta, though he had worked for the RCMP in Kelowna as recently as 2008, putting him within the five-year cutoff.
Kennedy left the RCMP in Alberta two months earlier — the five-year cutoff only applies to B.C. forces — but because of unclaimed leave, he was still receiving a paycheque from the RCMP when the Matters call came in.
Rosenthal got around this by appointing the pair as "advisers," rather than investigators, telling them to take a supervisory role but not get involved in interviewing witnesses or collecting evidence.
However, the report concludes Fitzpatrick and Kennedy were in fact part of the investigative team, and their involvement violated the spirit, if not the letter, of the law.
"Although I have found that there is nothing obviously biased or unfair about the investigation which followed, it can never be known how if at all the active participation of Fitzpatrick and Kennedy may have influenced the overall direction of the investigation," wrote Jette.
"The participation of Fitzpatrick and Kennedy may leave a nagging unease that all was not right, which is the very thing that the IIO was designed to avoid."
Rosenthal issued a statement Monday that said the agency's priority was to ensure the most experienced people were involved in the case.
He said all of the office's investigators now meet the requirements set out in the law and the situation outlined in Jette's report won't happen again, though the statement did not say what specific measures had been put in place to prevent similar problems.
The agency declined to make Rosenthal available for an interview.
Jette interviewed Rosenthal as he prepared his report. Rosenthal repeatedly defended the decision to involve Fitzpatrick and Kennedy, insisting it was better to ensure a competent investigation than to worry about optics, the report says.
Josh Paterson, Executive Director of the B.C. Civil Liberties Association, said the agency needs to provide a full explanation to the public about any changes it's made to fix problems identified in the report.
"I think the public needs to have an opportunity to understand what those steps have been in order for us to judge whether or not they're going to be effective," Paterson said in an interview.
"So much of this is about public confidence, and that does come down to appearances. ... When they get that wrong, it makes a big difference."
The IIO was created in the response to concerns about police agencies' ability to investigate officers after several high-profile incidents. An independent agency was a key recommendation from a public inquiry into the death of Robert Dziekanski, who died after he was stunned with an RCMP Taser at Vancouver's airport.
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