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Dominic Gagné and Mathieu Paré, two agents of the Service de police de la Ville de Montréal (SPVM), must answer four counts of summons to the Police Ethics Committee for a case that dates back three years. This news may provide answers to the questions asked by David Tshiteya Kalubi's family.
On November 8, 2017, David Tshiteya Kalubi is Died in municipal court from Montreal. The 23-year-old man had been arrested by the SPVM the day before at 22:40 p.m. He spent the night in custody at the East Operational Center before being transferred to a cell in the municipal court at around 7:35am. At 8:45 a.m., he was found inanimate in his cell. He was pronounced dead at the Centre Hospitalier Universitaire de Montréal at 9:53am.
The Committee will determine whether the officers failed in their duty by being negligent or careless about Mr. Kalubi's health. The date of the hearing has not yet been set, and the SPVM has confirmed to us that the two officers summoned to appear are in his employ.
Worrisome health condition
“The last three years have not been easy,” says Quelyna Kalubi, the deceased's big sister. “Life has been turned upside down for the whole family, especially for my mother, who blames herself for not having been there,” she adds. On the night of November 7, 2017, Ms. Tshiteya, who is a nurse, was in Gatineau, where she worked. At around 10:00 p.m., after a night out, her son David hit the road home. One of his friends was behind the wheel. It will never reach its destination. The police arrested the two young men during a traffic stop. Two unnamed arrest warrants were in Mr. Kalubi's file, and the officers arrested him.
“He wasn't arrogant or proud,” Quelyna says of her younger brother. He never missed an opportunity to help you or to tell you that he loved you.” David Kalubi suffered from sickle cell anemia, a serious chronic condition that is well known to his sister, who also has sickle cell anemia. This genetic disease, which affects almost exclusively black populations, causes red blood cell malformation, and complications can be fatal.
“We were told that David died of natural causes, even though he was anemic,” says Quelyna. It only takes an hour or two of treatment to restore hemoglobin levels and hydrate a sick person.”
She believes that if he had been in the hospital at the time, he could have been saved. The symptoms of sickle cell anemia can vary from person to person, and seizures can be extremely painful.
“Vaso-occlusive crises are compared to what a woman who is about to give birth feels,” reports Quelyna, whose two-and-a-half-year-old son is named after her uncle. Sickle cell anemia can cause organ failure, and heart and brain problems are common among those who suffer from it. David's heart problems, diagnosed shortly before the tragedy, were known to his family.
“My dad has the same condition, and he's 70.” He's also a cardiologist. “That's no reason to say that David died because he had heart problems,” believes Quelyna. However, according to the coroner's analysis, the fact that the young man did not take his medication for 24 hours did not have an impact on his death. Rather, his death was due to the presence of cocaine in his blood and to its action on his heart. A conclusion that leaves the Kalubi family perplexed.
The night of his arrest, David was returning from an evening spent with friends. He was not feeling well and decided to go home to take his medication, says his sister. He was a few minutes from home, in Hochelaga. Mr. Kalubi is said to have informed the police about his health condition. He also allegedly told them that he did not have his medication and that he wanted to go and get them back, information confirmed by the investigation report by the Bureau of Independent Investigations (BEI). Information gathered during the investigation reveals that the police did not ask David Kalubi any more questions when he spoke about his health condition and said that he was taking medication.
We also learn that the young man's health condition is not mentioned in police reports. The agents refused to let David go get his medication, and he spent the night in custody at the SPVM's East Operational Center before being transferred to the municipal court. Decisions that violate police ethics, but that do not make police officers criminally responsible for the death of Mr. Kalubi, according to the Director of Criminal and Penal Prosecutions (DPCP).
Non-criminal negligence
But why bring agents Gagné and Paré, who brought David Kalubi to the Operational Center following his arrest, before the Police Ethics Committee?
According to the Commissioner, on the day of the arrest, agents 6129 and 6299 were negligent or careless about Mr. Kalubi's health and safety, in particular by failing to complete the inmate control form, which assesses the health of the inmate. In addition, according to the Commissioner, after the incident, Officer Gagné submitted a false statement in the police report dated November 16, 2017, one week after the death of Mr. Kalubi. Agent Paré did the same as part of the EIB investigation on 16 January 2018, again according to the Commissioner. Contacted by La Converse, the DPCP declined to comment on the quotations.
Faced with these facts, Alexandre Popovic, from the Coalition Against Police Repression and Abuse (CRAP), which filed the police ethics complaint, questions the relevance of the DPCP report and of the system of sanctions against police repression. “The elements alleged in the quotation are acts that can result in criminal offences,” he said. We are talking about medical negligence under police custody. The case of David Kalubi reminds me of the case of Joyce Echaquan.”
Ethics, a remedy for victims' families?
Following an incident, or becoming aware of an incident, a complainant has one year to file an ethics complaint. In the case of Mr. Kalubi, the police ethics complaint was filed on 27 December 2017 by a third party, namely Alexandre Popovic. The Kalubi family was not aware of the proceedings initiated by Mr. Popovic prior to our call. Quelyna explains that ethics had been mentioned, but that at the time, the bereaved family was not in a position to make a decision. She believes she was informed of this more than a year after her brother died.
The Secretary General and head of prevention at the offices of the Police Ethics Commissioner, Marie-Ève Bilodeau, believes that a change is needed in this regard. “We asked that the BEI systematically inform individuals and families that there is a recourse for police ethics, and that we should not wait for the investigation to be completed because then it is often too late,” she said. Often, there is a lack of knowledge, especially if they are immigrants or people who know little about their remedies. We are very aware that this is a problem.” The Commissioner cannot know if his recommendations have been implemented. The Office of the Commissioner requested more resources to better inform people about their remedies and to provide prevention to the police at the Advisory Committee on Police Reality.
For ethical proceedings to be initiated, the criminal investigation must be completed. “The Police Ethics Commissioner will first await the results of the independent investigation and see if there will be any criminal charges,” explains Mr. Popovic. Criminal procedures take precedence over ethical procedures, which could explain the delay between the filing of the complaint and the officers' summons.
If the DPCP finds that the agents are not responsible, different conclusions may be drawn by the Ethics Commissioner. Ms. Bilodeau explains the difference as follows: “The BEI looks at criminal law, while ethics concerns the code of ethics.”
For example, when criminal charges are made, charges are automatically laid ethically. The Police Ethics Committee is an administrative tribunal where the Commissioner, who acts on behalf of the complainant, must demonstrate the derogatory nature of police conduct. “He is not the client's lawyer, he is the prosecutor, he is the prosecutor, indicates the secretary-general. He makes sure to compile a file and to establish proof of a police officer's misconduct. It is he who determines the breach and which section of the Code of Ethics has been breached.”
When talking about quotations, such as those faced by agents Paré and Gagné, the Commissioner lists in a document the shortcomings of the police officers and cites the articles that were violated. The file is then submitted to a committee. As in a trial, the police officer has the right to his lawyer and must present his defense. Penalties can range from blaming the police officer to removing the police officer.
A confusing system
Will the Ethics Committee's decision be a salve on the wounds of the Kalubi? Quelyna hopes that justice will be done. “It's good that there are others who understood our pain and are trying to get justice for a person who can't do it themselves, because we don't have the strength to do it,” she says. We thought we were the only ones thinking about him, but I can see that there are other people.”
The deceased's sister also recalls that the results of the BEI investigation surprised the family. “And when we got the DPCP's decision, two years after the fact, we didn't know what to do, we didn't know what to do,” she reports. We were not allowed to see the video, and the agents who were there the night of the tragedy refused to testify on the advice of their lawyer.”
The family was also unable to see David's body until it was on display. “It's like blaming the dead for his death,” she laments. We are told that he should have taken his medication, that he should have had it with him, that he should have worn a bracelet — when there is no bracelet for sickle cell anemia.”
To go further...
- In the event of a death or serious injury occurring as a result of a police intervention or during detention, the Bureau of Independent Investigations (BEI), which is a specialized police force, automatically conducts an investigation to shed light on the events.
- Once the investigation is complete, the file is referred to the Director of Criminal and Penal Prosecutions (DPCP), an independent prosecution service under the provincial government, which can act as a prosecutor to defend the interests of the public and those of victims in the event of a criminal offence.
- Since its establishment in 2016, the BEI has conducted 181 independent investigations into deaths and injuries. No charges have been brought against police officers.
- The 2019-2020 annual report of the Police Ethics Commissioner indicates 2,000 complaints processed, 179 investigations conducted and 90 police officers cited during the reporting period.5
- Code of ethics of police officers in Quebec