All police officers are required by law (section 38.101 of the Police Act) to cooperate fully with an IIO investigation. The statutory duty on a Witness Officer to fully cooperate has been interpreted expansively by the Supreme Court of British Columbia, including the determination that a Witness Officer is duty-bound to attend IIO interviews as and when the IIO directs, that the attendance of a Witness Officer’s counsel and union representatives at IIO interviews is at the IIO’s discretion, and that the production of pre-interview disclosure to a Witness Officer is at the discretion of the IIO.
IIO investigators are peace officers, with all the powers, duties and responsibilities that accompany that designation. For example, IIO investigators are authorized to seize property or other material at a scene as evidence, and to obtain search warrants and other judicial authorizations to enter private property to search for and seize evidence. Unlike police officers, however, IIO Investigators are only expected to exercise their powers in the course of their investigative duties.
The focus of an IIO investigation is the actions of police, and whether an officer may have committed an offence. The IIO will conduct any inquiries which are relevant and necessary for each investigation, including relevant activity of the Affected Person. While determining any criminal liability on the part of the Affected Person is not the focus of the IIO investigation, Affected Persons should be aware that information provided to the IIO may be disclosable to police. Affected Persons are therefore cautioned when they are interviewed that what they say may be disclosed to police in a concurrent police investigation.
In the Memorandum of Understanding between BC police agencies and the IIO, the IIO has agreed that it will not require a Subject Officer to submit to an interview in accordance with constitutional principles. This is because a Subject Officer’s actions are connected to the serious harm or death of the Affected Person(s), and Subject Officers therefore potentially face criminal charges if their actions were not justified. While a Subject Officer is legally required to produce notes and reports about an incident, they are not required to make them available to the IIO, nor are they required to answer possible self-incriminating questions from investigators. A Subject Officer may choose to voluntarily provide their notes, reports, or a statement to the IIO.