Prosecutors made the ‘extremely rare’ move to consult an independent expert — one who’s been accused of bias. His report toppled the case.
Amanda Follett Hosgood is The Tyee’s northern B.C. reporter. She lives in Wet’suwet’en territory. Find her on X @amandajfollett.
The Tyee: On July 18, 2017, shortly after 10 p.m., Dale Culver lay face down on the street in downtown Prince George.
He’d rolled onto his stomach as an RCMP officer sprayed him in the face with pepper spray. As more officers arrived, one punched him in the head. Others kneed or kicked him in the head or upper body, pummelled his legs with “hammer fists” and twisted his ear as they tried to arrest him. As roughly seven officers surrounded him, an officer sprayed pepper spray into his gloved hand and held it over Culver’s face.
“I can’t breathe,” Culver said at one point during the arrest.
Culver, who was Wet’suwet’en and Gitxsan, was eventually placed in handcuffs, brought to his feet and walked with assistance to a police vehicle, where he again told officers he was struggling to breathe. When paramedics assessed him about a half-hour after his altercation with police, he was responsive. Less than a minute later, he collapsed and died.
On April 5, the BC Prosecution Service announced it would abandon its case against two RCMP officers charged with manslaughter in Culver’s death. A 12-page statement from the BCPS, which includes details about the night Culver died and how BCPS grappled with forensic evidence in the years that followed, explains why Crown lawyers decided to stay proceedings against the officers.
Three forensic pathologists working with the BC Coroners Service initially agreed that police actions the night Culver died contributed to his death.
A year ago, BCPS laid manslaughter charges against Const. Paul Ste-Marie and Const. Jean Francois Monette. Both pleaded not guilty.
But as the officers’ pretrial inquiry approached, Crown counsel made the rare move of seeking input from an independent pathologist — Ontario’s chief forensic pathologist, Dr. Michael Pollanen. His dissenting opinion resulted in the charges being stayed earlier this month.
“Based on the evidence available, the BCPS is not able to prove, beyond a reasonable doubt, that the two officers committed a criminal offence in relation to the arrest of Mr. Culver,” BCPS wrote in its statement.
Once charges are stayed, the Crown has one year to resume proceedings before they are dropped.
Police incidents resulting in death have never led to a conviction in BC
Charges against police officers in B.C. are an “extreme rarity,” according to an investigation by the Globe and Mail last year. The Independent Investigations Office of BC, which investigates police incidents that result in serious harm or death, examined 220 deaths over the past decade and recommended charges in 14 cases, it said. Just one of those cases went to trial — and it led to an acquittal.
Indigenous and other people of colour are particularly affected by police violence, according to data from the Tracking (In)Justice project. Since 2000, Indigenous people have accounted for more than 16 per cent of police-involved deaths, while making up just over five per cent of Canada’s population.
The charges initially pressed against Ste-Marie and Monette are believed to mark the first time a B.C. police officer has been charged in the death of an Indigenous person. Last week, BCPS announced it would not proceed with charges against RCMP officers who shot and killed Jared Lowndes, a Wet’suwet’en man, in 2021. Lowndes’s mother, Laura Holland, called for an inquiry into why police have killed so many Indigenous people in Canada.
IIO chief civilian director Ron MacDonald told The Tyee that he will ask B.C.’s attorney general to review how BCPS handles the charge assessments submitted by his office. Over the past five years, prosecutors have charged police officers in fewer than 50 per cent of cases forwarded by the IIO, a rate much lower than charge recommendations submitted by police, he said.
MacDonald said that the families of Culver and Lowndes “have questions about decision-making at the Crown’s office” that he’d like to see resolved.
A violent arrest
In the moments leading up to his arrest, Culver was riding his BMX bike through downtown Prince George. At about 10 p.m., RCMP received a call about a “suspicious male” looking in cars, according to the BCPS statement.
That man wasn’t Dale Culver. According to BCPS, the caller described the man as “Caucasian.” Culver was “visibly Indigenous,” the BCPS added. But the caller believed that the man “might have a partner on a bike.”
When a police officer saw Culver riding in the area, he approached in his vehicle and asked him to stop. Instead, Culver cycled away.
This, combined with the fact that Culver wasn’t wearing a helmet, made him arrestable, the officer determined. “A chase ensued, with Mr. Culver on his bike and the officer, first in his police vehicle, and later on foot,” the BCPS wrote.
The police officer caught up to Culver and pulled him off the bike from behind.
“The officer got on top of Mr. Culver fairly quickly and attempted to deliver an elbow strike to the side of Mr. Culver’s head,” according to BCPS. The officer pressed his emergency button to alert other police in the area. He then pepper-sprayed Culver in the face “for three to five seconds.”
The first officer to arrive in response to the emergency call was Ste-Marie, a rookie officer who had joined Prince George RCMP the year before. Ste-Marie’s police vehicle screeched to a halt near where the men scuffled in the middle of the road, BCPS said. Shoving aside a bystander who was trying to assist the first officer, Ste-Marie punched Culver in the head at least once.
The next officer to arrive was Monette, who “kicked or kneed him in the head or upper body.” As roughly a dozen officers arrived at the scene, at least half of them surrounded Culver, applying pain compliance techniques in an effort to arrest him.
Video footage exists of only the end of the arrest, according to the BCPS. At this point, several officers were kneeling around Culver, attempting to put handcuffs on him. They were eventually successful using two pairs, chained together. Culver was then walked, with assistance, to the police vehicle.
Culver complained he was unable to breathe and said he needed air. When paramedics assessed him, he was able to speak and answer questions, according to the BCPS. But he collapsed and died 45 seconds later. It was 29 minutes after his interaction with police began.
The IIO recommends charges
B.C.’s IIO launched its investigation the following day.
In July 2019, it announced that it would file a report with Crown counsel suggesting charges related to use of force and “allegations of obstruction of justice in relation to the deletion of video from a civilian phone.” While there are few details available about the obstruction allegations, BCPS said there were bystanders in the area when officers arrested Culver.
Despite having suggested charges, the IIO still had outstanding questions about Culver’s death, according to MacDonald.
“There was some uncertainty around cause of death from the outset,” MacDonald said. “We went back to the coroner’s office and asked if it was possible to clarify certain things.”
The initial autopsy report had been completed by a forensic pathologist working for the BC Coroners Service months earlier, on Feb. 6, 2019. It determined that Culver died from “fibrin microthrombi throughout the pulmonary microvasculature” — tiny blood clots in his lungs.
While the report described the tiny blood clots as “the most unusual and perhaps the most lethal finding,” it could not pinpoint their origin. Among contributing factors were methamphetamine toxicity, a synthetic opioid called pentazocine, pepper spray, asthma and blunt force head trauma.
Given the uncertainty, a decision was made to bring in two more forensic pathologists with the BC Coroners Service. They formed a three-person panel, along with the original pathologist, to review the findings.
The panel upheld the original autopsy results. In a second report, dated October 2021, the pathologists listed the combined effects of asthma, pepper spray, Culver’s prone position and pentazocine as “the most important mechanisms that led to his death.”
They also confirmed a brain injury.
“While the head trauma was not lethal, it would have contributed to his death,” the three pathologists wrote.
In May 2020, the IIO announced it had filed an expanded report with “additional lines of inquiry” to the BCPS. This report determined that there were “reasonable grounds” to believe two officers had committed offences related to use of force against Culver, and three others may have committed offences regarding obstruction of justice related to the alleged phone recording deletion.
From IIO report to BCPS counsel
In March 2022, BCPS assigned the file to an “ad hoc” Crown counsel, a lawyer in private practice used during certain circumstances, such as when an in-house prosecutor is not available or to avoid a conflict of interest.
In this case, Joseph Saulnier and John Gordon were retained because the service was short resources, the BCPS confirmed to The Tyee.
Saulnier is a criminal lawyer in Vancouver whose experience includes defending serial killer Robert Pickton and leading the defence for Aydin Coban, who was convicted of sexually extorting B.C. teenager Amanda Todd. Saulnier responded to The Tyee’s interview request by directing questions to the BCPS.
Gordon recently moved to private practice after several decades working as Crown counsel.
MacDonald said cases referred by the IIO are not usually prosecuted by lawyers external to the BCPS. But he supported the move, in keeping with recommendations from the Braidwood Commission, which investigated RCMP actions that led to the death of Robert Dziekanski at the Vancouver airport in 2007.
“[Braidwood] found that there was at least a perception of conflict if you have the BC Prosecution Service, who regularly works with police and depends upon police as witnesses, making decisions about cases that would see police officers prosecuted,” MacDonald said.
“Once Mr. Saulnier was involved, subject to his already busy schedule, it did seem as though the file moved along at a better pace.”
On Feb. 1, 2023, the BCPS announced manslaughter charges against Ste-Marie and Monette. Three additional RCMP officers — Const. Arthur Dalman, Const. Clarence Alexander MacDonald and Sgt. Bayani Eusebio Cruz — were charged with attempting to obstruct justice.
In a statement after the charges were announced, the IIO called its investigation “exceptionally complex” and “extraordinarily demanding” on the office’s limited resources. It said the time it had taken to lay charges was “unacceptable.”
“I’m not able to explain the delay. It’s not consistent with what you see in other cases,” MacDonald told the Globe and Mail at the time.
Delays in the manslaughter trial continue
An arraignment hearing scheduled for Ste-Marie and Monette in March 2023 in Prince George was postponed at the last minute. It was rescheduled for May, then again postponed. Culver’s family, who travelled hundreds of kilometres to attend the hearings, called the justice system “horrendous” and “protectionist.”
On June 6, 2023, Monette and Ste-Marie appeared remotely in a Prince George courtroom and entered not guilty pleas.
Six years after Culver’s death, both officers remained on active duty. Last August, when Ste-Marie was charged with assault for his actions during an unrelated arrest, the force moved him to administrative duties.
Meanwhile, Crown counsel continued to struggle with the case. As court appearances were being postponed and rescheduled last spring, prosecutors were lining up interviews with the original pathologist to better understand the cause of death. The first interview took place in May 2023. Two further interviews were planned for the following week.
“Unfortunately, communication between ad hoc Crown and the pathologist immediately broke down,” BCPS said in its statement. The second and third interviews did not take place until November.
It was during these subsequent interviews last fall that the prosecution “became concerned that the pathologist’s evidence would differ from the opinion expressed in the autopsy report,” BCPS said. What the Crown had believed were contributing factors in Culver’s death, the pathologist now characterized as “merely a constellation of factors” that “set the stage” for the tiny, unexplained blood clots in Culver’s lungs, it said.
Blunt force trauma alone would not have caused Culver’s death, the pathologist confirmed, and there was no explanation for how blows to the head contributed to the formation of blood clots in his lungs.
Calling in an independent reviewer from Ontario
Prosecutors turned to an out-of-province pathologist.
According to the BC Coroners Service, independent reviews are “extremely rare.” The decision to seek an external opinion was made by ad hoc Crown counsel, in consultation with senior counsel, according to the BCPS.
One week before a pretrial inquiry was set to begin in the Culver case on Jan. 22, 2024, Dr. Michael Pollanen agreed to review the pathology results from the BC Coroners Service.
Again, court proceedings were postponed.
“New information has recently come to light that requires further investigation before the hearing can proceed,” the BCPS told The Tyee in an email at the time.
On Feb. 26, Pollanen filed his report. It found that Culver’s death was caused by the “effects of methamphetamine following a struggle.” Ultimately, it was a disturbance in Culver’s heartbeat — not blood clots in his lungs — that ended his life, Pollanen found. The tiny blood clots were “incidental” and not caused by pepper spray.
Culver had not sustained a brain injury but “an injury to his scalp,” he added.
Based on his evidence, prosecutors determined they would not win the case.
“In light of the reviewing pathologist’s report, which was in conflict with material respects with the original autopsy report, the ad hoc prosecutors and the BCPS concluded there was no longer a reasonable prospect of conviction against the two officers for manslaughter,” the BCPS wrote in an email to The Tyee.
Pollanen was selected as an external reviewer “based on his extensive experience as the chief forensic pathologist for Ontario,” BC Coroners Service media relations manager Ryan Panton wrote in an email to The Tyee. “He is a well-respected and acclaimed forensic pathologist with an international reputation.”
Pollanen was appointed to his position in 2006. Ontario was in the process of overhauling its autopsy system after flawed pediatric forensic pathologyresults had led to wrongful convictions of parents and caregivers. Pollanen’s appointment was meant to restore trust in Ontario’s justice system.
But Pollanen has faced his own controversies.
In 2017, Ontario court Justice Anne Molloy ruled that his testimony into whether parents accused of child abuse in the death of a toddler showed evidence of “confirmation bias.” Molloy wrote that Pollanen “looked for ways to support a position hastily taken” and that he had “started from a position… which he then sought to prove.”
Two years later, two forensic pathologists with the Hamilton Regional Forensic Pathology Unit accused him of inappropriately interfering with their work.
In a March 2019 complaint to Ontario’s Death Investigation Oversight Council, Dr. Jane Turner, former medical director at the Hamilton facility, said Pollanen continued to demonstrate “strong bias” in pediatric cases and that he “abuses his position of power, employs bullying tactics [and] uses fear and intimidation” against pathologists at the unit.
“Dr. Pollanen then used his position as Chief Forensic Pathologist to secure the opinions of others who do not dare to disagree with him, even if this meant changing their initial opinion,” Turner wrote. “He disciplined my entire team simply because he disagreed with the manner of death in that case.”
The unit closed months later amidst allegations that the move was meant to silence critics.
Shortly after Turner’s complaint, another Hamilton pathologist, Dr. Elena Bulakhtina, filed a similar complaint with the Death Investigation Oversight Council. The council responded to both complaints with a list of recommendations, but stopped short of calling for Pollanen’s dismissal. Turner requested a judicial review of the response but her application was rejected.
Bulakhtina has also filed a lawsuit alleging Pollanen took “multiple steps to undermine her reputation and defame her.” She said the experience ended her career in forensic pathology.
Pollanen has denied any wrongdoing. The lawsuit remains before the court.
Pollanen declined The Tyee’s interview request, directing questions about the Culver case to the BCPS and BC Coroners Service.
The Tyee reached out to more than half a dozen forensic pathologists to comment for this article. Most either didn’t respond or declined to comment, citing conflicts. Dr. John Butt, a retired expert in forensic medicine, said he was unfamiliar with the Culver case. But he described Pollanen’s work as “outstanding.”
“I trust Dr. Pollanen implicitly,” he said. “He’s created the world’s best death investigation system, bar none.”
IIO not consulted
Despite initial ongoing discussion between the two agencies, MacDonald said, the BCPS did not consult with the IIO before seeking the independent opinion. Nor did it ask the office to weigh in on the new evidence, he added.
“You have three [pathologists] saying one thing and one saying another thing. It might well suggest to some that further investigation is required,” MacDonald said. “That would have been my position.”
BC’s Police Watchdog Wants to Know Why Officers Aren’t Being Charged
The original pathologist is no longer conducting autopsies for the BC Coroners Service, Panton told The Tyee. He did not provide a reason, nor did he provide information about the two B.C. pathologists who initially reviewed the case, citing confidentiality.
On April 5, as Monette and Ste-Marie’s pretrial inquiry was again set to begin, Saulnier told the court that the prosecution would stay the charges against the two officers.
Three days later, Ste-Marie pleaded guilty to assaulting Dilmeet Singh Chahal while he was restrained in the back of a police car.
Ste-Marie’s lawyer, Ravi Hira, called the assault an “isolated incident.” He said the seven years Ste-Marie spent facing the manslaughter charge following Culver’s death should be taken into account by the court while considering the Crown and defence’s joint submission for a discharge.
“As it turns out, there was no homicide,” Hira said, referring to Culver’s death.
Ste-Marie received an absolute discharge for the August 2022 incident. He will not receive a sentence or a criminal record.
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