Public hearing into death of Myles Gray further delayed after respondent officer’s lawyer steps away

A person holds a sign with a photo of Myles Gray, who died following a confrontation with several police officers in 2015, before the start of a coroner's inquest into his death, in Burnaby, B.C., on April 17, 2023. (Darryl Dyck / The Canadian Press)

The public hearing into the police-involved death of Myles Gray was scheduled to resume on Wednesday but has hit another snag and will be further delayed.

Gray died after a violent confrontation with seven Vancouver police constables in a Burnaby backyard in August of 2015.

The jury at a coroner’s inquest ruled his death a homicide and the Office of the Police Complaints Commissioner ordered the public hearing.

It began in January and was initially scheduled to last 10 weeks, but it has already been significantly delayed after hearing lawyer Brad Hickford stepped down over a vulgar remark caught on a hot mic.

Brock Martland replaced Hickford in the role, which is similar to that of a prosecutor in a criminal case.

Respondent counsel appointed to provincial court bench

Three days were scheduled for testimony this week, but rather than starting at 9 a.m. on Wednesday as planned, the hearing was delayed until 2 p.m.

When it resumed, Martland informed the adjudicator that Scott Wright, a lawyer representing Const. Nick Thompson, was stepping away from that role because he had been appointed to sit as a provincial court judge.

That suddenly leaves Thompson without representation, forcing another adjournment.

“This is a very costly adjournment in terms of time,” adjudicator Elizabeth Arnold-Bailey said.

Kevin Westell, a lawyer representing Const. Josh Wong, another respondent officer in the hearing, told the adjudicator that a plan was in the works for him to potentially take on Thompson as a client in the proceeding as well.

Until Wright’s recent appointment to the bench, he and Westell both worked at Pender Litigation, and Westell is already well acquainted with the evidence.

Adjudicator concerns over conflict of interest

Arnold-Bailey raised the issue of a potential conflict of interest for Westell if he were to represent two respondent officers in the same hearing.

She also suggested both Wong and Thompson should seek independent legal advice on what course of action would be in each of their best interests.

The hearing has been adjourned until Friday afternoon so the lawyers and respondent officers involved have time to consider those issues before presenting a potential path forward to Arnold-Bailey.

Hardeep Sahota, Kory Folkestad, Derek Cain, Beau Spencer and Eric Birzneck are the other respondent VPD constables.

Several officers may choose to take stand

Birzneck had been scheduled to testify this week, but the latest adjournment makes it unclear when he will take the stand.

There has been some question as to whether any of the other six officers would be willing to testify as well, but Westell provided some clarity on that during the discussion about adding Thompson as a client.

“Const. Wong and Const. Thompson are eager to testify in their own defence, and I understand at least a few others are very much looking forward to that opportunity, and looking forward taking that opportunity as soon as possible, given how long this matter’s been outstanding,” he told the hearing.

Each of the officers was compelled to testify at the coroner’s inquest into Gray’s death.

Because this is a disciplinary hearing, none of the respondent officers can be compelled to testify.

However, unlike in a criminal trial where judges and juries may not make a negative inference about a defendant who doesn’t take the stand, Arnold-Bailey can make such a finding in the hearing if she chooses.

She has the ability to hand down a range of discipline that could include suspension, demotion or even dismissal from the force.