Police-Involved Deaths: The Need for Reform
“The Ontario Special Investigations Unit: Securing Independence and Impartiality,” Police-Involved Deaths: The Need for Reform
, published by the B.C. Civil Liberties Association, 2012.
By André Marin
It is imperative for the public to have confidence in the men and women charged with the responsibility of serving and protecting our communities. Without respect for the law and those who enforce it, there would be anarchy. However, there are times when the legitimacy of police conduct is called into question. In October 2007, Robert Dziekanski, a distraught and disoriented traveler from Poland, died in Vancouver after being tasered and forcefully restrained by RCMP officers, resulting in national protests and international condemnation. In August 2008, Freddy Villanueva, an un-armed Filipino youth, was shot and killed by police in Montreal, triggering riots. When these incidents occur, and they unfortunately do with some regularity, the public interest can only be fully satisfied by having a strong civilian oversight body in place to impartially verify whether those charged with upholding the law have crossed over the line into breaking it.
The public is justifiably suspicious of any oversight process that involves police investigating police. When police officials regardless of what force they serve on investigate their own, they are not only vulnerable to conscious and unconscious influences arising from their shared police experience, but also to the reasonable perception that their assessment of their brothers and sisters in arms may be improperly tainted.
Currently, Ontario is the only province in Canada that provides for criminal investigation of police officials by a civilian agency. Regrettably, Ontario's system has at times floundered, as a result of flaws both in its structural integrity as well as its operational culture, which have undermined its ability to function independently and impartially.
As a former Director of Ontario's Special Investigations Unit, I know first- hand the challenges faced by a civilian body when it is tasked with conducting criminal investigations involving the police. In my experience, the most intractable and pernicious obstacle is the entrenched and often instinctive rejection by those in policing of any form of independent civilian oversight. Police opposition can manifest itself in many ways, from subtle passive non-compliance to outright refusal to cooperate. In order to overcome the blue wall of resistance, a police oversight body must operate within a statutory framework that provides the tools, including powers of compulsion, necessary for it to effectively fulfill its mandate, and with an organizational culture that is truly independent of those it oversees.
When I became Ombudsman of Ontario, one of the 500-plus government bodies that I had authority to investigate was the SIU. In June of 2007, after receiving a slew of complaints from affected individuals, family members, lawyers and community groups I launched a systemic investigation into the SIU's operational effectiveness and credibility. My investigation focused on the period subsequent to February 2003, since that was when the last external review of the agency had been conducted.
My investigation into the SIU, chronicled in my report, Oversight Unseen
, revealed a civilian oversight body struggling to assert its authority against aggressive police interests, absent a clear and comprehensive constituting statute, and without a strong operational structure. It also uncovered an organizational culture steeped in blue.
The legislative framework
Typically, the creation of police oversight bodies follows controversy. In the case of the SIU, it emerged in 1990, in the wake of high profile police shooting deaths of racial minorities. While the government expressed commitment to a civilian oversight model at the time, the SIU's constituting legislation consists of a single section grafted on to the existing Police Services Act.
The SIU's mandate seems clear on the surface; it is to investigate the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers and to charge police officers, where there are reasonable grounds to do so. Members of police forces are also required to cooperate with the SIU's investigations. This scheme appears simple enough, but the lack of legislative direction and an effective mechanism to enforce compliance have provided opportunities for the overseen to derail the investigative process.
As Gareth Jones outlines in his chapter, from the outset, police officials actively resisted the SIU's investigative authority. In 1999, regulations were enacted addressing some of the areas of contention. However, despite this, the SIU and police officials continued to operate at odds within zones of ambiguity. When we commenced our investigation of the SIU in 2007, there was still significant disagreement regarding the scope of the legal obligations imposed on police officials in relation to the SIU. The uncertainties inherent in the legislative framework presented serious impediments to the SIU's ability to carry out its mandate effectively.
For instance, without a statutory definition of the types of “serious injuries” that trigger SIU involvement, the SIU and police officials have at times adopted conflicting interpretations. The SIU has also been reluctant, fearing police backlash in the absence of legislative entrenchment, to expand the operating definition of serious injuries it has used since 1991. As a result, the SIU has not considered serious psychological and soft tissue injuries or superficial gunshot wounds to be within its jurisdiction.
At the time of my investigation, the lack of clarity around what constituted serious injury continued to be one of the factors contributing to chronic delays in police notifying the SIU of incidents.
It is imperative that criminal investigators arrive at the scene and commence investigating as soon as possible. It is well known in policing circles that “evidence very often evaporates, witnesses walk away, stories change …scenes change.” [Julian Fantino, Commissioner of the Ontario Provincial Police, as quoted in Oversight Unseesn
at page 31.] In criminal investigations time is the enemy; evidence disappears and degenerates as quickly as it is created. Late notification of the SIU by police authorities can seriously hinder an investigation. In recognition of the need for urgency, since 1999 Chiefs of Police in Ontario have been required by the Police Services Act regulations to notify the SIU immediately of any serious injuries or deaths involving police. Despite this direction, during our investigation of the SIU, we learned that notification delays of hours, days and sometimes longer continued to be commonplace.
An analysis undertaken by the SIU of 28 Toronto Police Service cases from 2006 revealed that in all but two instances it took the service over an hour to notify the SIU. In most cases, notification was delayed for several hours, in two situations, the police waited over a day to call the SIU, and in a third, the call came in two weeks after the incident.
We also found close to 80 cases where the only reason the SIU became involved was because it learned about an occurrence through the media or other sources. In July 2008, for instance, the SIU read about an incident in the paper, after charges were dropped against two young males. The presiding judge had determined that the accused had been abused during their arrest. One of the men had apparently suffered a fractured rib, perforated eardrum and bruising around his eye. However, police officials had ignored their legal obligation to notify the SIU for the entire two years it had taken for this matter to proceed through the courts.
In some SIU cases, police authorities have excused their heal-dragging by blaming “confusion” about police protocols or the need to first confirm the extent of injuries before calling in civilian investigators. For example, in March 2006, Ontario Provincial Police officials claimed that a four-hour delay in notifying the SIU was justified because it wasn‟t clear at first that a collision with a cruiser, which had left a motorist suffering seizures at the scene, and with a broken breastbone, clavicle and bruised lungs, and eventually led to the woman being placed in a medically-induced coma, had been “serious” enough to warrant calling the SIU.
In another case, a police service waited three hours before calling the SIU to advise that a 15-year old boy, who had been in custody, had died. The boy, who had a history of mental health problems, was arrested after a 911 call reporting that he had committed an assault and taken an overdose of his prescription medication. He was not taken to hospital, but kept at the police detachment until his mother arrived hours later to find him in physical distress. At that point, officers purported to release him to his mother's custody, but then drove him on their own to the hospital in a cruiser. He died nine hours later of a drug overdose. Police officials maintained that the boy was not in their custody when he died. By the time SIU investigators had arrived, the witness officers were off duty, and the SIU had trouble locating the boy's body, which had not been properly secured.
Remarkably, we found that even when it was blatantly obvious that the SIU mandate had been engaged, there were inordinate delays in notifying the agency. We reviewed 64 shooting incidents occurring from 2003 to mid-June 2007, and discovered that in almost a third of these it had taken the police an hour or more to notify the SIU. It took one service 90 minutes, on three separate occasions, to advise the SIU that its officers had shot civilians. Another police force delayed five hours in telling the SIU that an officer had shot a suspect in the arm.
Given the fundamental need for the SIU to be apprised of incidents within its authority as soon as possible, one would naturally expect that the agency would have taken swift and decisive action in the face of such persistent disregard for the legislative notice requirements. However, by the time my investigation of the SIU began in 2007, the organization appeared to be stagnant and acclimatized to complacency.
While the SIU had collected anecdotal information about late notification and was aware of problems with some services, it did not require its investigators to routinely seek or record reasons for police failure to comply with the notification requirements. In egregious cases, the Director of the SIU might write a letter to a Police Chief to politely raise a concern about cooperation, or more rarely, have a meeting with police officials, but this flaccid approach was largely ineffective. Faced with continued resistance, the SIU had largely come to accept notification delay as an inevitable fact of police oversight.
What was even more disturbing was that this defeatist stance appeared to reflect an even deeper attitudinal malignancy within the SIU. Over time, the SIU had come to internalize the belief that it was powerless to rigorously enforce its mandate. Rather than aggressively address challenges to its authority, it had adopted the spirit of compromise, conciliation and consensus in its dealings with police. This passive approach ultimately suited the SIU‟s parent ministry, the Ministry of the Attorney General, which had an interest in keeping a lid on any tensions percolating in the police community.
For years, certain vocal elements of the police community had argued that SIU investigations were not really like other criminal investigations, since they involve professional law enforcement officials, society's “heroes”, not common criminals, and hence did not require the same exigency and rigor as investigations carried out by the police themselves. Unfortunately, our review of SIU cases and interviews with SIU staff, suggested that the SIU had actually bought into this misguided line of thinking.
During our investigation, we found that despite the fact that the SIU‟s budget had doubled since 1998, it had continued to lose critical time in responding to incidents as a result of lax operational practices. We learned that instead of “blitzing” an incident scene and calling out as many staff as possible, as soon as possible, SIU managers followed a cumbersome routine of dispatching investigators at intervals, resulting in a staggered and delayed response. In addition, instead of ensuring that those closest in proximity to the incident were engaged, the SIU typically dispatched part-time staff, instead of full-time investigators, who were closer to the scene, in order to avoid incurring overtime expenses.
In June 2004, Jeffrey Reodica, a 17-year old Filipino youth, was shot three times by a Toronto police officer, who had responded to a call concerning a fight between rival groups of teens. Mr. Reodica later died in hospital. It took the Toronto Police Service almost an hour to notify the SIU about the shooting. But to compound this initial delay, it took the SIU over an hour to call out all of the 10 investigative staff it assigned to the case. The first SIU investigator did not arrive on the scene until over two hours after the shooting, and the last to arrive showed up four hours after that. Instead of dispatching two full-time investigators, who were available that evening in the Toronto area, part time investigators were called out from hundreds of kilometres away. A number of 12 to 16-year-old youths were detained by police, without contacting their parents, well into the middle of the night awaiting SIU investigators. In at least one instance, it was shown that the delay had negatively influenced the testimony of a young witness.
We also found a number of cases in which the SIU had not bothered to obtain sufficient facts to determine whether a case required the Unit's involvement and had deliberately delayed responding to a notification. On March 6, 2005, the Toronto police called the SIU twice about an incident in which the police were on the scene when a father dropped his four-year-old daughter over a highway overpass, and then leapt to his death. The SIU did not inquire further. The next day, the police called again and explained that an officer had also phoned the suicidal man and that officers had been approaching him just before he jumped. However, we were told it wasn't until the Coroner's Office later called, concerned that the SIU had not attended the post mortem, that the SIU finally dispatched investigators. By then, there was no scene to attend and the SIU had to rely on police forensic evidence.
As further evidence of the SIU's indifference to conducting its investi-gations as soon as possible, SIU records revealed a disconcerting pattern of delayed investigation of serious injury incidents occurring over weekends.
We discovered that the thoroughness of SIU investigations had also been compromised on occasion by a lack of adherence to good investigative practices. We discovered a number of cases where potential witnesses and forensic evidence appeared to have been overlooked. In a SIU report from 2007, it was noted that the SIU team had missed various critical pieces of evidence, including a suicide note. We found that it was also very rare for SIU investigators to actually interview the officers most directly involved with an incident under investigation. While police officers, who are the “subject” of an incident, are under no obligation to speak to the agency, obviously their evidence is extremely relevant. There was nothing to stop SIU investigators from inquiring whether a “subject officer” would be willing to be interviewed. However, the SIU did not encourage contact with subject officers following an incident. In fact, one SIU investigator we spoke with expressed the view that it was improper to interview subject officers and recalled turning a subject officer away who had attempted to explain what had happened at the scene of an accident. On June 20, 2006, a Toronto Police officer shot and killed Duane Christian, a 15-year-old black youth, as he was driving a stolen van, which had apparently veered towards another officer. Although the officer who had killed Mr. Christian advised the SIU that he was willing to testify, he was told that this was unnecessary.
In addition, we found that there were significant gaps in the investigative training provided to SIU staff. Some of the SIU investigators deployed to conduct sensitive sexual assault investigations had never received specialized sexual assault instruction, and a number of investigators appeared unaware of the full scope of the SIU's charging authority.
What we found particularly astounding about the SIU's lackluster approach to its investigations was its apparent rejection of the standard criminal investigative best practice of interviewing witnesses as soon as possible.
The toothless tiger
Normally, in the criminal context, it is absolutely critical that key witnesses be interviewed right away, to limit exposure to outside influence, and the potential for witness accounts to change as memories fade. Consistent with this prevailing view, it has been a regulatory requirement since 1999 that police officers, who are witnesses to an incident being investigated by the SIU, submit to an SIU interview immediately upon request and no later than 24 hours after a request, where there are appropriate grounds for delay.
However, by 2007 the reality was that very few officer interviews ever took place within 24 hours. In fact, this appeared to the exception rather than the norm. The timing of interviews was left entirely up to the discretion of individual SIU investigators. Remarkably, some of the SIU's investigators we spoke with considered immediate interviews of witness officers as “archaic,” “bad practice” and one intrepid investigator suggested that memories actually improve with time. At the same time, we heard conflicting views expressed by many SIU staff, including senior management. These individuals, while promoting investigator discretion with respect to witness officer interviews, also stressed those interviews should be conducted immediately. Ironically, there seemed to be no debate that civilian witnesses should be interviewed as soon as possible.
One of the reasons suggested by a senior SIU official for the failure of the SIU to interview officers right away routinely was that there was no formal method of enforcing compliance. However, as we examined SIU records and interviewed investigators, it became quite clear that, in practice, late interviews were not simply a result of police refusal to cooperate without compulsion, but a courtesy readily extended by SIU investigators. We found that it was very common for SIU investigators to delay witness officer interviews for any number of reasons from claims that officers suffered from post-traumatic stress to a desire to work around police shift scheduling. It was not unusual for the SIU to oblige police services, which wished to keep overtime expenses down, by not requesting interviews with officers who were off duty. This meant that officer interviews could be delayed up to six days while the SIU waited for them to come back on shift. Another typical reason the SIU permitted interviews to be postponed was to allow witness officers an opportunity to obtain legal representation.
In Ontario, both officers who have witnessed an event, as well as those directly involved in an incident, are entitled to legal counsel. During the period we considered, the Director of the SIU had never exercised the regulatory authority to require a witness officer to attend for an interview without counsel to avoid unreasonable delay. In fact, it appeared to be generally acceptable for interviews to be delayed indefinitely to accommodate lawyer's schedules.
On November 4, 2005, 20-year-old Jason Steacy was killed by an Ontario Provincial Police officer investigating a report that Mr. Steacy had stabbed another resident of a trailer park. Two officers had entered Mr. Steacy's trailer and one had fired on him, after mistaking a computer mouse in Mr. Steacy's hand for a gun. The SIU did not begin to interview witness officers until six days after the incident and the last interview was not concluded until 69 days later. The interview of the only officer who had witnessed the shooting was delayed for a number of factors including his being off on sick leave as well as his lawyer‟s reluctance to agree to an interview. SIU management recognized that the delays in this case may have jeopardized the integrity of the witness recollections, but they appeared resigned to the fact that there was nothing they could do to speed up the process.
Our review of SIU data concerning the same 28 Toronto Police Service incidents from 2006 referred to earlier, showed that the SIU only inter-viewed witness officers on the same day as an incident had occurred in one case. In four cases, interviews took place within three days. However, in most instances interviews were delayed not simply for days, but for weeks and even months. In six cases, witness officer interviews weren't completed until more than a month after the incident. In one case, two witness officer interviews did not begin until five months after an incident and were not completed until six months later. The SIU did eventually meet with the police service in question in an attempt to address the chronic situation of delayed interviews. However, clearly it had tolerated delay for a protracted period and its own approach to witness interviews had enabled the situation to continue unabated.
Even while it accepted that delayed interviews could interfere with the integrity of investigations, the SIU did little to counter this trend. It never emphasized that officer interviews should be conducted immediately except in exigent circumstances, and it had never directed that its investigators routinely obtain and record reasons for delayed interviews or notify management of problems with police non-compliance. Very few cases were ever flagged for senior management, and even when they were very little was ever done by the SIU to address the situation aside from referring to the problem in a report to the Attorney General or letter to a Chief of Police.
The SIU's practices around delayed officer interviews also served to undermine the regulatory requirement that witness officers be segregated to insulate their evidence from outside influence. Given that witness officers were usually permitted to leave an incident scene and that long periods went by before they were interviewed, the potential for conscious or unconscious tailoring of evidence was substantially increased. This risk was also compounded by the fact that many officers spoke with counsel before writing their notes and before speaking with the SIU, and quite often, the same counsel represented all officers involved in an incident, increasing the chance of contamination of their recollection of events, since lawyers are bound by the rules of professional conduct to share information among clients in a joint retainer situation.
We did find cases where the SIU had identified regulatory breaches relating to the segregation of officers and the preparation and production of police notes. However, in many instances the circumstances surrounding issues of segregation and preparation of notes had not been fully canvassed or recorded in the SIU's files. At the time of my investigation, systemic problems relating to the segregation and note-making practices, impacting the reliability of police witness accounts, continued to present significant challenges to the integrity of the SIU's investigations.
We received anecdotal and, at times, conflicting evidence from SIU staff concerning the degree of police resistance that they faced when conducting investigations. A study conducted by an outside researcher of more than 1,000 use of force cases investigated by the SIU between January 1, 2000 and June 6, 2006 suggested that about 10% of the cases reviewed involved some degree of police non-compliance. [Scott Wortley, Police Use of Force in Ontario: An examination of data from the Special Investigations Unit - Final Report (Toronto: Centre of Criminology at University of oronto, 2006) at 52.] However, the SIU did not have any comprehensive data regarding cooperation issues, and given the limitations of its computer system, it was unable to generally track and monitor non-compliance from a systemic perspective.
The SIU's preferred method for dealing with individual instances of police non-compliance was to identify concerns in reports to the Attorney General or in letters and meetings with senior police officials. During our investigation, we were advised that the SIU had deliberately chosen to follow a cooperative low-key approach to regulatory compliance, with admittedly mixed results.
The SIU would not publicize disputes with police services in the media, or pursue these in the courts. While it had considered seeking standing to address concerns through the police public complaints system, it had never done so. Ultimately, when its diplomatic letter writing and meetings failed, the SIU simply resigned itself to a state of stalemate. This had led to a patchwork of compliance. Some police services would cooperate with certain requests for information, for instance personnel and training records, and others would not. In addition, different forces had adopted different interpretations of what constituted police “notes” subject to production to the SIU. One hold-out police service had even doggedly objected to disclosing its policies and procedures to the SIU. Rather than engage in a more aggressive attempt to resolve this impasse, the SIU had simply resigned itself to “agree to disagree”.
We found that the SIU was practically pathological in its avoidance of public controversy and consistently opted for the path of least resistance. The Ministry of the Attorney General, which stood aloof and beyond the fray, encouraged the SIU's non-confrontational stance. Despite being apprised by the SIU of systemic issues and concerns relating to police resistance, the Ministry was content to sit back and allow the SIU to limp along unassisted. We also found that the SIU's operational dependency on the Ministry was another factor limiting the SIU's ability to function independently and impartially in carrying out its mandate.
Too close for comfort
The SIU is a relatively small agency, and has had to rely significantly on the Ministry for technical and administrative supports. While safeguards could have been put in place to limit the potential for this arrangement to influence the SIU's operations, instead, the Ministry and the SIU Director had entered into a very unusual agreement that had the potential to compromise the SIU's appearance of structural independence. Contrary to the normal practice applying with respect to the heads of independent agencies, when the Director was seconded from the ranks of the province‟s crown attorneys to serve as the head of the SIU, the Ministry and the Director agreed that the Ministry would carry out annual evaluations and award the Director discretionary merit pay contingent on his performance. While the Director received fluctuating incentive pay based on the Ministry's annual assessments, this was not supported by any formal evaluation documentation or objective evaluation criteria. The situation was clearly inconsistent with the need for the SIU to function within an operational framework reinforcing its independence and impartiality with respect to police oversight.
Public perception of a police oversight body is extremely important, and it is critical to avoid any suggestion that it might be subject to inappropriate external or internal influences. With this in mind, the Police Services Act contains provisions directed at mitigating police influence on the SIU.
According to the Police Services Act, no serving police officers can act as SIU investigators, SIU investigators are prohibited from participating in investigations relating to members of a force that once employed them, and the SIU Director cannot be a former police officer. Despite these statutory safeguards, during our investigation, the influence of police culture on the SIU was palpable.
Shades of blue
At the time of our investigation, seven out of 12 full-time SIU investigators had come from civilian backgrounds. However, 24 of the 30 part-time investigators and 9 out of the 10 forensic investigative technicians were former police officers, as were all of the supervisors and the Executive Officer. Not only was the SIU investigative staff composed primarily of former police officers, but those officers tended to be white males in their 50s and older who had retired from policing. Given its staffing profile, the SIU was edging precariously close to perpetuating some of the stereotypes that police forces had been slowly working to dispel through equity hiring programs. The presence of so many former long-serving police officers in the SIU ranks had a significant influence on its work culture and naturally sparked public speculation about its ability to act impartially in conducting investigations of police.
We discovered that in many respects the SIU looked and acted like a police force, from its dress code to its operational procedures. We were also told by a number of SIU witnesses that in some cases former officers working at the SIU had been known to use disparaging remarks, originating from the police community, to describe civilian victims and witnesses, and to use overly friendly leading questions when interviewing police witnesses. Some former officers were very blatant about their police affiliations, and were even in the habit of wearing police watches, ties and “thin blue line” rings while carrying out their police oversight duties. Such glaring symbolic displays of police solidarity were in sharp contrast to the independent and unbiased image that the SIU should have been projecting.
The SIU did little to dispel rumors that it was subject to police influence. The SIU's commitment to keeping controversy out of the public arena combined with legislative limits on the information it could disclose about individual cases, left the public to assume the worst when it came to its decisions not to charge officers with offences. While the SIU published press releases at times, particularly in high profile cases, the basis for its decisions not to lay charges remained unclear. Only the Attorney General received the SIU's detailed investigative reports, leaving those that had been injured, the families of deceased individuals, police officials as well as the general public in the dark. During our investigation, it was clear that the lack of transparency with respect to SIU decision-making had contributed to diminishing public confidence in the SIU‟s ability to carry out its mandate impartially.
While during the period considered in my investigation, the SIU had directed considerable energy to solving its internal labour-management problems and improving its working environment, it had failed to tackle the underlying issues giving rise to its operational dysfunction, such as police non-compliance, which continued to threaten its effectiveness.
At the conclusion of my investigation into the SIU, I found that its failure to encourage compliance with and respond to breaches of regulatory requirements on the part of police officials rigorously, to ensure the most effective response to incidents, and to recognize and eradicate practices that undermined its credibility as an independent investigative body was unreasonable and wrong. I also found that the Unit's practice of not publicly disclosing Director's reports where no charges were laid was based on a legislative provision that was unreasonable. Finally, I was of the view that the Ministry's failure to take steps to ensure that the SIU had the necessary regulatory and operational supports to carry out its mandate effectively, and to establish a method of compensation for the Director that reflected the independent status of the SIU, was unreasonable and wrong.
I made 46 recommendations to address the concerns identified in my report. Twenty-five of my recommendations focused on the SIU itself, and were directed at instilling a sense of urgency and increasing the rigor applied to SIU investigations, eliminating practices that compromised the SIU's independence and impartiality, and increasing the transparency of its processes. I urged the SIU to respond quickly and forcefully when police services fail to comply with their statutory requirements and to respond to incidents with sufficient strength to ensure the integrity of investigations. I also called on the SIU to increase civilian representation in its management ranks.
I addressed six recommendations to the Ministry of the Attorney General. I encouraged the Ministry to properly resource the agency so that it could carry out its mandate effectively, to take a more active role in pursuing issues of concern regarding police practices, and to maintain a proper distance from the SIU to ensure its structural independence and impartiality.
Finally, I addressed 15 recommendations to the Government Ontario. In doing so, I emphasized that I believed that in order for the promise of civilian oversight of police in the context of incidents involving serious injury and death to be fully realized, it was necessary to reconstitute the SIU under new legislation dealing specifically with its mandate and investigative authority. I urged the Government to construct a strong legislative base for the SIU, which would include such features as an expanded definition of serious injuries coming within the SIU mandate, clear direction on the scope of police disclosure obligations, an effective method for enforcing police compliance, restrictions around legal representation of multiple officers, and greater provision for transparency.
I also requested that the SIU, the Ministry and the Government report back to me on their progress in implementing my recommendations. On March 31, 2009, I received status reports from both the SIU and the Ministry. Given the nature of the information received, it was necessary for my Office to conduct further review to assess the extent that the SIU and the Ministry had actually met their commitments in responding to my report. I hope to report on my findings in the near future. [Note: There have been a number of significant events since this chapter was written in 2009. In December 2011, I issued a second investigative report relating to the SIU, entitled Oversight Undermined.] However, perhaps one of the best indicators that the SIU is beginning to move beyond its turgid state, is the backlash it has encountered while recently attempting to pursue its mandate with greater assertiveness.
The SIU begins to growl
With a new Director at the helm, the SIU has moved away from its previous practice of flying below public radar. It has increased the number of press releases it issues as well as the degree of information provided concerning its investigations. The Director has also become quite vocal about the police practice of consulting with a police association lawyer before preparing notes of incidents, which must then be turned over to the SIU.
In September 2009, the SIU Director issued a press release concerning his decision not to lay charges after conducting an investigation into the death of a 30-year-old man, who had been shot by an Ontario Provincial Police officer, after being approached about a stolen boat. The Director explained that because he was not sure what had happened, he could not conclude that there were reasonable grounds that a criminal offence had been committed. The Director was particularly critical of the fact that both the subject and witness officers had written up notes, which had been shared with the same legal counsel, before writing up the formal police notes, which were then shared with the SIU. The Director commented that he could not “place sufficient reliance on the information provided by the officers to decide what probably happened,” and observed:
This note writing process flies in the face of the two main indicators of reliability of notes: independence and contemporaneity. The notes do not represent an independent recitation of the material events. The first drafts have been “approved” by an OPPA lawyer who represented all of the involved officers in this matter, a lawyer who has a professional obligation to share information among his clients when jointly retained by them. Nor are the notes the most contemporaneous ones: they were not written as soon as practicable and the first drafts remain in the custody of their lawyer. I am denied the opportunity to compare the first draft with the final entries. Accordingly, the only version of the material events are OPPA lawyer approved notes.
The Director's very public condemnation of the practice relating to legal vetting of police notes prior to their release to the SIU prompted a swift counter attack by the Ontario Provincial Police Association. In a responding press release, the Association set out its take on the facts relating to the killing, which supported the view that the officers “acted in self defense.” The OPPA expressed that it was “appalled” by the Director's comments implying that the officers‟ notes were drafted with the approval of their counsel, and noted that the Director's remarks had “put a strain” on the well established relationship that had previously existed between the Association and the SIU.
On October 5, 2009, the Director of the SIU issued a press release in which he outlined the developments at the Unit since my report. The SIU indicated that it now has a more formal process in place to monitor, record and deal with instances of police non-compliance with regulatory require-ments, a reformed dispatch procedure, which includes the use of BlackBerrys by investigative staff to facilitate a continuous call-out of investigators in order to improve response times to scenes, and issues news releases in more cases and with more detail, in an effort to improve responsiveness to the public and affected persons.
To address concerns with public perceptions regarding the work of the Unit, the SIU also noted that it had taken steps to appoint an outreach coordinator, persons without police backgrounds are now represented within investigative management, and two new investigative trainee positions had been created and filled by investigators without police background.
While recognizing that it was equally important to provide investigators with discretion, the Director signaled agreement that witnesses should be interviewed quickly. He also indicated that he would exercise his authority under the regulations to suspend a witness officer‟s entitlement to legal representation if it would otherwise lead to an unreasonable delay. In addition, the SIU Director advised that he now routinely documents any problems with police compliance in Director‟s Reports to the Attorney General, in correspondence with Chiefs of Police and the OPP Commissioner and in discussions with police leaders.
The Director also reinforced his earlier public concerns about police note preparation practices. Later that same month, the Director went on the record again in an interview with a local reporter expressing concern that lawyer vetted police notes “do not reflect the writer's true recollection.” It was also reported that the Director had written letters of complaint to both the Ontario Provincial Police Commissioner and the Chief of the Toronto Police Service expressing concern about this practice. Apparently, the Commissioner had indicated that he would not be responding and the Toronto Police Chief had referred the SIU to the Toronto Police Services Board, which did not see any issue, but had not yet formally replied.
The media focus on this issue has continued as a lawyer for the families of two men shot dead by Ontario Provincial Police in the summer of 2009 revealed that they had approached the courts to ask that the way police lawyers handle SIU cases be changed.
During the extended period when the SIU was silent concerning disputes with police forces, we often heard from SIU and police officials about the spirit of cooperation existing between the police community and the SIU. However, now that the SIU has recovered its public voice, media reports are beginning to reference “the building tension” between the SIU and Ontario‟s police forces. The war of words has continued as it was disclosed this Fall that compared to the three charges initiated by the SIU against police officials in 2008, the SIU had already laid 13 charges by October 31, 2009. The head of the 8,300-member Toronto Police Association blasted this SIU charge rate, claiming the new Director was carrying out a “political agenda” to “justify his leadership,” and that it was “a knee-jerk reaction to the Marin report.” The Association also indicated that because of concerns of “overcharging” and that some members had been “wrongfully charged,” it would be taking the “unprecedented step” of independently reviewing all cases of Toronto Police Officers charged by the SIU in 2009.
The dispute between the SIU and powerful police interests has even spilled into the political arena. In November 2009, a Conservative opposition member questioned the Minister of Community Safety and Correctional Services in the Legislature about whether he was satisfied that the SIU Director was performing his job in an objective and non-biased manner. This MPP also observed that the police community felt that the Director had lost his ability to remain objective and was clearly biased against police officers, and challenged the Minister to correct this “abuse of power.”
While police officials continue to give lip service to the importance of the role of the SIU, clearly the police community is not pleased with the prospect of a more energized oversight body. I believe that tension between police officials and the SIU is inevitable and that to a certain degree it is actually healthy. The current confrontation in Ontario is a natural reflection of a more emboldened agency attempting to assert its authority using the limited resources at its disposal. Unfortunately, until the underlying legislative ambiguity is eliminated and an effective and efficient means of compelling compliance with the SIU is established, I believe that the SIU will continue to struggle to carry out its mandate against some of the most powerful interests in our society, police and their associations. Ultimately, I believe that a comprehensive and well-defined statutory foundation is necessary to enable the SIU to serve the public interest fully in civilian oversight of incidents involving serious injuries and deaths of those coming into contact with police.