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Enhancing Public Accountability for Police In Ontario

Instructor:Dr. Bryant Greenbaum
Fall, 2017
Submitted by: William Wister

Outline
Introduction
Background : Police Services Act (PSA)
Police Officer Status in Law
PSA: The Golden Rule
OIPRD
Resolving Complaints under the PSA
Special Investigations Act( SIU) and the Rule of law
SIU Strengths and Weakness
Democratic Policing
Review of Tulloch Report
Conclusion

Introduction

This paper will deal with the issue of enhancing  public accountability for the Police in Ontario through the use and revision  of existing  and new administrative tribunals under the Police Services Act. This analysis will also consider a  review of the relevant sections of the enabling legislation of  the existing tribunals and the issues and limitations associated with these tribunals and their  complaint mechanisms. Further , the report will review the proposed changes under the Tullege Report which was filed in early 2017.

Further the report will consider  a number of theoretical frameworks for the analysis. The concept of  “Democratic Policing”  can be seen as one of the key tenets of administrative tribunals in that the tribunal  must respond in a real and meaningful way with the mandate or purpose enunciated for the tribunal. The paper will also consider the theoretical constructs established by James Packer in 1968 . Packer argued that that a “crime control” or a “procedural fairness model” governs the actions of justice officials and administrative bodies dealing with criminal activity .It could be  argued that the actions of courts and tribunals can be considered through these two polar  concepts . Also, it will be useful to observe the actions of the review courts  or courts acting in an appellate capacity as they opine on the actions of tribunals. In this analysis, this paper will consider the two concepts of “ correctness of decisions  and reasonable approach to decisions. It can be observed that police officers in tribunals have neither some elements of fundamental justice or charter remedies as a shield in these proceedings.

As  well, the paper will review the accountability provisions through the lens of Human rights legislation, the Charter, employment law , the criminal courts  and the traditional Media acting as the Fourth Estate ( the traditional concept of the Three Estates being the Clergy, nobility and the commoner) and the Fifth Estate( this emerging Estate being the internet communication, twitter, blogging and Facebook). It is interesting to note that in Canada there is an absence of federal legislation of criminal procedure which governs police actions. England has enacted such legislation which creates a public  and transparent criteria by which police actions can be reviewed. In Canada , this analysis would require the public to consider a complex myriad of judgements, decisions and legal opinion.

Background

Canada has the international reputation of being a pluralistic society a visual mosaic of cultures which define the Canadian society . This term mosaic or more accurately vertical mosaic was coined by Desmond Morris in the early 1965  to explain that Canada unlike the United States is a mosaic of cultures, traditions and experiences woven together over time which act together in a unique and complex manner of mutual respect, tolerance of diversity and inter-dependence . The serious limitation identified by Morris was the fact that it was a vertical mosaic where although various cultures were respected ,tolerated and encouraged, it was largely inegalitarian in in that the white , European and British cultural groups controlled the public institutions, the positions of power and influence  and financial benefits.

John Porter in revisiting this concept in 1996 make the following observation;

What is clear, however, is that Canada’s multicultural composition is             increasingly a multiracial one as well. The fastest growing portion of Canada’s population is its native Indian community, and immigration patterns have shifted away from Europe in favour of East Asia, the Indian subcontinent, Africa and the West Indies. In 1996, the number of non-European immigrants living in Canada surpassed the number of European immigrants for the first time.

  • That is not readily apparent, however, in the country’s upper echelons.

( John Porter, Revisiting the Vertical Mosaic)

This model of a mosaic as represented in Canada maybe  the envy of the Democratic world community. Unlike the United States which is melting pot of culture and values, Canada has never lost its expectation of  respect, tolerance and ,for  public bodies,  transparency and accountability.

On the basis of that cultural norm , one  would expect public, institutional  and private accountability for Police both on an individual level and a systemic level. How and why has Canada fallen into a culture of mistrust and clouded  transparency. This is a time of carding of citizens, DNA sweeps of  isolated aboriginal communities and the shooting of mentally ill persons and radicalized minorities at alarming rates. One could argue that one such shooting is too many.

Unfortunately, transparency of actions and administrative decisions respecting these actions to varying degrees  is quite simply not true in each province and community in Canada. The issues noted above are visited upon each Province. To Ontario’s credit, there have been serious attempts to rectify the situation.

Ontario and Toronto in particular is a destination point for immigrants seeking a new life, Maritimers seeking job security and opportunity and  foreign and domestic students seeking a top quality internationally respected  education.

It has been said with a certain degree of over-statement  “ as goes Toronto, so goes the rest of Canada”. Toronto has a population of 5 million larger than the collective population of the Maritimes and larger than any single Western Province. It has a police service with a budget of over one billion dollars  and employee 5000 police officers with a civilian staff of over 2500. By comparison , the RCMP provides domestic police services to  Canada with a 1.6 billion dollar budget for active crime investigation and crime reduction with 68,000 officers in Canada and 27,000 officers in Ontario (RCMP annual report and Stats Canada, 2016)

Police Officers Status in Law

Police officers in the  eyes of their employer ,are first and foremost employees and are governed by provincial or in the case of the RCMP federal legislation.  They report to and are accountable to the Chief of Police. Their employer is manifested by the Chief of Police in various forms and titles. Unlike crown attorney’s they are not agent of the chief of police and are not in law in a position to exercise independent judgement in their duties acting as a Minister of Justice ( see R v Boucher ]. They are governed like all employees by a complex set of departmental policies , directives and instructions from commanding or superior officers.  The police in Ontario are governed by the Police Services act and the RCMP officers are governed by the RCMP Act.
How then has it come to be a public expectation that the individual police officer owes a duty of accountability, transparency and procedural fairness to the individual Canadian citizen and resident.? In the work place, if a customer of a retail establishment has a complaint about poor customer service , they are referred to a complain department  and the matter is handled internally.
 In short the Police have one unique set of work conditions stye carry lethal force and under section 25 of the criminal code they are authorized to use it. There is no parallel power in any group of people. Further, the Police have a unique training in the use of Force and simply put as the situation escalates, they respond with progressive use of force until the ultimate use of deadly force. It has been said in many police mess halls or social events” better to be judged by 12 than carried by 6”

Police Services Act: The golden rule: He who has the gold makes the rules.
Simply put, the Chief of Police does not make the enabling rules but the legislation puts the power of the administrating the complaint and the tribunal clearly in his hands.
This statement needs to be examined within the context of the bodies established to provide police oversight in Ontario. Simply put, these three bodies are: the SIU (Special Investigation Unit), OIPRD( Office off the Independent Police Review Director) and OCPC ( Ontario Civilian Police Commission).

OIPRD

The OIPRD receives civilian complaints about sworn officers in Ontario. The complaint can be based on the actions of an individual officer or a complaint about  actions by a police Force. It  does not act on complaints about RCMP officers and it will not accept anonymous complaints. Gerry McNeill was appointed as the first independent Police Review director in 2008 . The OIPRD has taken steps in 2017 to tackle a number of key issues facing police services . The first report was released in march,2017 and addressed the use of force in police interactions with people in crisis. This report was the culmination of a series off submissions form stakeholders , roundtable discussions with mental health professionals and an independent literature review on the issue. What is significant to this paper is the methodology used to tackle the complaint and the OIPRD use of principles of community involvement to develop a series of recommendations for Police Services. This paper will not attempt to offer any analysis in this complex area of police service other than to note the use of this community  involvement is an example of transparency needed to examine an area where police use lethal force against persons who are suffering from a mental health episode and at the same time , present a clear  and imminent danger to the public and police officers.

Section 61 of the The Police Services Act sets out the procedure to be followed with respect to a complaint about an officer other than the chief, Deputy Chief or InterProvincially appointed officers. A complaint can be dealt with by the Director, referred tom the chief to be dealt with or referred to another chief of Police to be dealt with.  Of some note is the fact that in Alberta, the Director of the Alberta Serious Incident Review Team holds the status of a chief of Police.

Resolving Complaints under the PSA
Sections 66,67 and 68 of the PSA  set out the methods to resolve complaints. Section 66 provides that the Chief of Police shall cause an investigation of the complaint and at the completion of the investigation, he shall send a copy of a report of ht investigation to the subject officer, the complainant and the Director of OIPRD . If the chief forms the opinion that the complaint was less serious, then an informal resolution strategy may be put in place for the parties. The legislation odes not attempt tom define the term” less serious” but an operational definition my exist in the absence of the use of force.
Section 67 governs an investigation by a Chief of Police by another police agency. A report submitted by an outside Chief of Police will be dealt with in the same manner as an internal report generated under section 66.
Section 68 governs a complaint investigated by the Independent Police Review Director. The Director shall cause a complaint to be investigated and shall file a report to the chief . At the discretion of the Chief , he has the discretion to hold a hearing or refer the matter for informal resolution.

It is interesting to note, that all three paths of investigation are then governed in part by by the procedures as set out in  section 82 . The chief of Police shall designate the prosecutor at a hearing under section 66(3), 68(5) or 76(9). It is important to remember that the subject officer is an employee and the Prosecutor is also an employee with a superior rank to the subject officer. 

As well, the Chief shall appoint the adjudicator and establish the remuneration for the Adjudicator. Finally, the Chief of Police, board  or the Commission has the power pursuant to section 85 to dismiss the officer , suspend the officer or impose financial; penalties. The decisions of the Chief et al. pursuant to the Act are made public in a manner  that is determined appropriate by the Chief. There are appeals to the commission under section 87 and to the divisional court pursuant to section 88.

Special Investigations Unit and the Rule of Law 

The SIU ( Special Investigations Unit) was created and established under section 113 of the Police Services Act. It was the first of its kind in Canada when it was established in 1990 . It is a civilian -run law enforcement agency with a  mandate  to investigate police officers in Ontario for matters which are potentially  classified as criminal in nature.
It was created in direct response of a task force examine ing ways in which the relationship between the Police and minority groups could be improved.
The mandate of the SIU is to probe all cases of death, serious injury or sexual assault allegations involving police officers. The ultimate question for the SIU is to determine if charges should be laid and to refer the matter to a Crown Attorney.It was the first civilian oversight agency in Canada and its investigators have the status of a police officer form the purpose of their investigations.

In 1991 , the SIU was provided with a working definition of “serious injury” offence which was achieved through consultation between the chiefs of Police and the Ministry of the Solicitor General.  From the perspective of a former Chief crown Prosecutor, it appears that the definition is similar in distinction between assault , assault causing bodily harm and aggravated assault. It would appear that this working definition would be familiar to most experienced police officers if not SIU investigators.

Of interest to the question of transparency on its face is the fact that when created the director of SIU reported directly to the Solicitor General but now reports to the Attorney General. The Attorney General in Canadian law occupies a special status . The Attorney General by convention is often the Minister of Justice and a member of Cabinet but not necessarily so, As noted by Adam Dodek :

The Attorney General is responsible for providing legal advice to the executive branch of government and for representing the government in all legal proceedings. In certain matters, the Attorney General is supposed to act completely independently in the public interest without reference to partisan politics. The Attorney General is known as the “defender of the Rule of Law”.( Adam Dodek, Separating the offices of the Attorney General and Minister of Justice, Legal Magazine SLAW, 2015)

SIU Strengths and Weakness

When considering the operation of the SIU and section 113 ,the following sections set out procedural fairness, transparency and independence as important considerations:

  1. 113(8) the director is to report all allegations to the AG
  2. 113(3)A current or former police officer cannot be appointed as the Director
  3. 113(3) current police officers cannot be appointed as investigators
  4. 113(6) investigators cannot investigate their previous agencies

These sections provide for the issue of transparency and appear on the surface to go to the tissue of keeping the investigators separate and apart form any appearance of interference due to past employment.

The police obligations under Regulation 267 of the PSA sets out procedural safeguards to ensure a transparent investigation while at the same time ensuring  Charter Rights for  the suspect or in the SIU terms” the subject officer”:

  1. 267 s 9(1) the subject officer and the witness officer must complete their notes by the close off shift unless permitted their completion at a later time.
  2. Reg 267 s 9(2) the witness officer shall provide his notes within 24 hours of a SIU request and provide an interview within 24 hours of s request
  3. There is no statutory obligation for the subject officer to provide his notes to SIU or to consent to an interview
  4. The subject officer section 10 rights under the Charter are respected in that they can consult with counsel and may have counsel present during the interview although the officer cannot consult with counsel prior to the completion of their notes. The completion of notes can be seen as an employment requirement while the providing of a statement is outside the terms of employment of an officer no matter how serious the allegations.
    1.  

      The problems experienced in the SIU which have systemically undermined the effectiveness of the SIU in part  can be seen as follows:

      1. Lack of definition of critical terminology
      2. Clear guidelines on a duty to co-operate by police agencies
      3. The lack of a formal connection to other oversight agencies. Gaps and duplication of the oversight agencies may exist  so that complaints , investigation reports and information cannot flow smoothly between agencies.
      4. The lack of Legal consequences for  a failure to co-operate with an investigation
      5. the lack of meaningful police investigative powers Provide including search and seizure powers, subpoena powers and police interrogation techniques.
        1. Democratic Policing

          As noted by Kent Roach in his analysis , there is a need to achieve a balance in the powers of the police and to ensure a lack of political interference with police activities:
          Civilian oversight of the police is a critical topic in any democracy. A democracy that does not hold its police accountable can become a police state in which those entrusted with the state’s most coercive powers can defy the rule of law with impunity.

          Roach in his article sees the civilian oversight as carrying out that essential function in a democratic society, although he sees a critical flaw in this function. Roach identifies three critical areas of concern as can be seen in the following:
          Despite its manifest importance, civilian oversight of the police is remarkably under-theorized. Basic questions about the objectives of oversight and the fit between these objectives and the range of oversight mechanisms are often not addressed. Assumptions and slogans about maintaining the confidence of “the public” and the need for “independent” review are used without critical analysis. Emphasis is placed on “civilian” review without differentiating between the different types and talents of “civilians” who are outside police forces

          The Tullege Report will be examined considering the following three parameters as set out by Kent Roach :

          1. Objectives: What is the fit between the objectives of the oversight and the range of oversight mechanisms?
          2. Definition: What is the operational definition of maintaining the “confidence of the public” and how does that relate if at all to “independent review”.
          3. Capacity: What is the realistic capacity of persons outside the police force to conduct an independent review. In seeking separation of the review from those most capable of conducting the review weakening the quality of the review?
          4. Related issues:

          5. Propriety:Professor Roach introduces the concept of propriety into his analysis of a study of the objectives of oversight agencies. He makes the distinction between two important concepts and captures the range of objectives to be considered in any discussion of oversight:
            The most basic form of propriety is to ensure that the police do not engage in criminal conduct and if they do that the law is impartially applied to them. An alternative standard is whether the police conduct violates codes of conducts or regulatory offences under Police Acts. Other forms of propriety focus on whether police conduct violates the Charter of Rights and Freedoms or are actionable civil wrongs. Although legality is an important component of propriety, it should not exhaust propriety review. In other words, conduct that is not clearly illegal may still be improper. ( Roach, Models of Civilian Police Review Page 37) 

            Professor Roach encourages oversight agencies not to lose sight of their objectives and to clearly distinguish their objectives and determine whether they are examining illegal acts, violent acts or improper acts. It could be argued that some improper acts may have more deleterious effects on public confidence than some illegal acts.

          6. Limit on Review:
            Another consideration that Professor Roach raises is the limit of Police oversight. He places a clear limit on the limit of police independence from review :
            Although there have been legitimate concerns about overinflated claims of police independence that would inhibit legitimate democratic oversight, there is a developing consensus in Canada  that police independence is limited to the exercise of law enforcement discretion with respect to investigations and charges.( Kent Roach, Models of Civilian Police Review, page 40)

          7. Chaos caused by Loss of Self-Regulation: Professor Roach also places another consideration on the issue which has not been fully considered in the pursuit of oversight. Ifs the police loose day to day self-regulation, what is the systemic impact?

            Independent civilian review may be necessary but we should not be blind to the problems of achieving true independence from the police or government especially in the eyes of knowledgeable and/or cynical members of the public. The consequences of independent review in terms of police resistance and possible loss of self-regulation also need to be considered. ( Kent Roach, page 60)

          8. Standard of Perfection as a standard of review : Professor Roach raises a concern over the standard of review and notes the courts warning in a case dealing with use of force and a defence raised under section 25 of CCC:
            In R. v. Nasogaluak,  the Supreme Court found these defences did not excuse the breaking of the ribs and puncturing of the lungs of a Dene/Inuit man. TheCourt, however, cautioned that “Police actions should not be judged against a standard of perfection.
            It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies.
            Their actions should be judged in light of these exigent
            circumstances.”95In addition to s. 25, police officers can rely on the expanded self defence provisions  in s. 34 of the Criminal Code. It requires that acts of self-defence be reasonable in the circumstances ( Kent Roach, page 68)

          Review of the Tullege Report 

          The Executive summary of Justice Tullege’s report holds a clear statement of the extent of the problem of lack of public trust  that police face in Ontario in 2017:
          This relationship must be situated within its historical context in our modern, pluralistic society. For some communities, particularly Black and Indigenous communities, historical realities have led to a distrust of the police, a distrust that sometimes extends to the oversight bodies themselves.
           This is no small problem. Modern policing, after all, is founded on public trust. That trust is tested when the police cause a civilian’s death or serious injury, or behave in a manner that is seen to fall below the professional standards expected of them. 

          Further, the report places great emphasis on the need for an outside investigative body;

          For the public to have confidence that the police will be held accountable, the investigation and resolution of such matters often requires the involvement of an outside investigative body.
          It is within that context that Professor Roach and Lorne Session ( 2017) 64 Criminal Law Quarterly offer an analysis of the report.

          In reviewing the report , they note the major recommendations of the report:

          1. Codifying the SIU mandate and the powers of the director and the release of the reports.
          2. The work of the OIPRD would dramatically increase
          3. The work of the OCPC would become the primary adjudicator of all complaints and provide for independent Prosecutors for all disciplinary charges.
            1. Their major concerns briefly stated are as follows:

              1. Although legal reform is a necessary first step, their is a need to reflect Ontario’s diversity. In order to achieve this goal there will need to be political will, resources and skilled leadership.
              2. Criminal and regulatory prosecutions are necessary but as the authors note, they are blunt instruments. The authors encourage the use of feedback loops to ensure that proper training and remedial action is taken and monitored. These feedback loops should have meaningful participation of the affected communities.
              3. The SIU mandate should be expanded to cover public interest issues including fraud, corruption and obstruction of justice to name a few.
              4. Although the report recommends a new CCC charge for failing to co-operate with SIU investigation, there is concern that this would go to the heart of the issue.
              5. The report recommends that the SIU commit more resources to public relations, the authors question that the issue with SIU has more to deal with the charging standard for all criminal offences.
              6. The report recommends that mandatory Inquests e held in all cases of death caused by a police officer. The authors note that Coroner’s Jury recommendations have no more success in implementation that administrative recommendations.
                1. In conclusion , the authors suggest that legislative reform alone will do little to change the distrust felt by the community. They note that there are many devils dwelling in the details. The success of the report will lie, as they argue not in the legislation alone but the systemic changes that occur form the proper management of the complaints.
                  In this author’s opinion, it  goes back to the first concern noted above , the success will need the proper mandate as translated into  policy and internal directives, sufficient budget to manage the oversight, skilled people and the political  will bolstered by an informed and diligent  public.

                  References:
                  Kent Roach and Lorne Sissons, Renovating Independent Police Review, (2017) 64 Criminal Law Review Quarerly (forthcoming)
                  Kent Roach, Models of Civilian Police Review, The Objectives and Mechanisms of legal and Political Regulation of the police.
                  Andrew Sancton , Democratic Policing : :Lessons form Ipperwash and Caledonia
                  The Honourable Michael H. Tulloch, Report of the Independent Police Oversight Review



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