Investigation into the Special Investigations Unit's operational effectiveness and credibility.
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1 Canada received considerable unfavourable international attention last fall when millions witnessed the graphic video images of the last terrifying moments in the life of Robert Dziekanski. After a long and delayed international flight from his native Poland, Mr. Dziekanski arrived at Vancouver Airport, only to spend hours wandering hopelessly, unable to communicate or to obtain the assistance he needed to exit and meet up with his mother. As Mr. Dziekanski became increasingly confused and agitated, RCMP officers arrived and, within minutes, stunned him with a Taser. He was then restrained, and died shortly thereafter. In the aftermath of this tragedy, public accusations were made of coverup and police using excessive force. People demanded assurance that the truth surrounding his ill-fated encounter with police would be revealed, and many voiced distrust of any investigation that would involve police investigating police.
2 To Ontario’s great credit, incidents in this province involving serious injury and death of civilians resulting from police contact are not investigated by police officials, but by the Special Investigations Unit (SIU), a civilian criminal investigative agency. Created in 1990, the SIU’s existence is a testament to the strength of democratic principles in this province, and the value our government has placed on reinforcing public confidence in policing.
3 Unfortunately, over the past two years, several serious concerns have been raised by individuals, families, lawyers and community advocates who complained to my Office about the credibility and effectiveness of the SIU.
4 As previous independent reviews have documented, the SIU’s early history was marked by successive governments failing to provide it with adequate resources, and by police officials aggressively resisting its oversight. While its resources have increased over time, and regulatory requirements now more clearly define police obligations, my investigation found that the Special Investigations Unit continues to struggle to assert its authority, maintain its balance against powerful police interests, and carry out its mandate effectively.
5 The SIU is still very much a fledgling organization. It does not have its own constituting legislation, its mandate lacks clarity, it is administratively and technically challenged and it is dependent on the Ministry of the Attorney General.
6 In turn, the Ministry of the Attorney General has relied on the SIU to soothe police and community sensibilities and to ward off controversy. But in doing so, it has also overstepped the bounds of independent governance. The Director’s performance is subjectively evaluated and rewarded, compromising the SIU’s structural integrity and independence. Its credibility as an independent investigative agency is further undermined by the predominant presence and continuing police links of former police officials within the SIU. It is so steeped in police culture that it has, at times, even tolerated the blatant display of police insignia and police affiliation.
7 In addition to lacking the necessary statutory authority to act decisively when police officials fail to comply with regulatory requirements, the SIU often ignores the tools it does have, such as public censure, and adopts an impotent stance in the face of police challenge. Delays in police providing notice of incidents, in disclosing notes, and in submitting to interviews are endemic. Rather than vigorously inquiring into and documenting delays and other evidence of police resistance, the SIU deals with issues of police non-co-operation as isolated incidents. It ignores systemic implications and attempts to solve individual problems through a conciliatory approach.
8 The SIU has not only become complacent about ensuring that police officials follow the rules, it has bought into the fallacious argument that SIU investigations aren’t like other criminal cases, and that it is acceptable to treat police witnesses differently from civilians. Police interviews are rarely held within the regulatory time frames, and are all too often postponed – for weeks, sometimes even months. The SIU will not inconvenience officers or police forces by interviewing officers off duty. When it encounters overt resistance from police officials, the SIU pursues a low-key diplomatic approach that flies under the public radar. If disagreement cannot be resolved, the SIU more often than not simply accepts defeat.
9 The SIU also fails to respond to incidents with rigour and urgency – at times inexplicably overlooking the closest investigators, and following routines that result in precious investigative minutes, sometimes hours, being lost. It has become mired in its own internal events, and introspective focus.
10 The SIU’s system of oversight is out of balance. It must not only ensure accountability of police conduct, but be perceived by the public as doing so. At present, the public is expected to trust that the SIU conducts thorough and objective investigations and accept that its decisions are well founded when it decides, for example, not to charge officers. But much remains hidden from public view, including Director’s reports and significant policy issues. In order to properly serve the function it was created to fulfill, greater transparency is required with respect to the SIU’s investigative outcomes, as well as those of the police disciplinary system triggered by SIU investigations.
11 In theory, the SIU is a fundamental pillar of accountability in Ontario. However, the reality is that the SIU is capable of much more than it is achieving at present. It is incumbent on government to provide the agencies it creates with the means to fully accomplish their mandates. The citizens of Ontario are entitled to a Special Investigations Unit with the necessary resources and tools to be the best that it can be. With that in mind, I have made 46 recommendations in this report, addressed at improving the system. The first 25 recommendations focus on the SIU itself. I believe that there is much that the SIU can do on its own to enhance and inject more rigour into its investigative practices, and its response to challenges to its authority. I have also made recommendations to address the issues created by a lingering police culture within the SIU, and to achieve greater transparency.
12 I have made six recommendations to the Ministry to address concerns about its failure to provide the SIU with the supports it needs, as well as the necessary distance to enable the SIU to properly function as an independent agency.
13 Finally, I have made 15 recommendations to the government of Ontario, because I believe the system for police oversight requires additional structural support that can only be provided through legislative amendment. It is time for the SIU to be accorded the respect and stature it deserves through its own constituting legislation. This is the next natural step in the evolution of the SIU. It is a necessary adaptation, in order to secure public confidence in the SIU, and in turn, foster public trust in policing in this province.
14 On June 7, 2007, I launched a systemic investigation into the Special Investigations Unit’s (SIU) operational effectiveness and credibility. The investigation was prompted by complaints received from affected individuals, family members, lawyers, and community groups who raised concerns about the SIU’s independence and objectivity, as well as the thoroughness of its investigations. Concerns were also raised about the lack of information provided to the involved parties. We received dozens of additional complaints from members of the public following the announcement of the investigation.
15 Our investigation focused on the period subsequent to February 2003, since that was the last time an external review of the SIU was conducted.
16 The Special Ombudsman Response Team (SORT) carried out the investigation. A team of six investigators and one Early Resolution Officer conducted the field investigation, assisted by Senior Counsel. Two additional investigators assisted with the document review.
17 SORT investigators conducted more than 100 interviews, 83 of them in person. These included most of the current SIU staff, former SIU staff, senior officials with the Ministry of the Attorney General, complainants, community groups, experts, consultants, representatives from the policing community (including the Commissioner of the OPP and the chiefs of police from the Peterborough Lakefield Community Police Service, Thunder Bay Police Service, Toronto Police Service, and York Regional Police Service), police association counsel, the president of the Thunder Bay police association, a former Deputy Director of the SIU and a former Director. Also interviewed were officials from the Canadian Police College, the Ontario Police College, and the Chief Superintendent and Deputy Criminal Operations Officer, E Division of the RCMP, as well as University of Toronto criminologist and associate professor Scot Wortley. All face-to-face interviews and some of those conducted by telephone were recorded digitally, resulting in more than 200 hours of recorded material.
18 Investigators also contacted several agencies such as the Independent Police Complaints Commission in the United Kingdom, the Office of the Police Ombudsman of Northern Ireland, and the Commission for Public Complaints against the RCMP to identify “best practices” used by police oversight organizations.
19 This investigation proved to be SORT’s most extensive to date. The team initially obtained and reviewed 25 banker’s boxes of materials from the SIU and two from the Ministry of the Attorney General. In October 2007, the SIU made an unsolicited formal written submission to our Office and forwarded an additional 11 banker’s boxes full of documents. A detailed review of 21 SIU investigative case files was conducted, including 10 that were provided by the SIU in support of its submission. In total, the investigation examined tens of thousands of pages of material as well as interview tapes and related videos and DVDs.
20 The SIU’s initial reaction to our investigation was defensive. It issued a press release in which it praised its own “excellent investigative standards” and promoted itself as “a world leader in civilian oversight of police.” These words of puffery, however, were soon discarded as the investigation progressed. By October 2007, the SIU acknowledged in its written submission to us that it was unwise for any organization to brag that it was “state of the art” or a “world leader.”
21 Overall, we received excellent co-operation throughout the investigation from the SIU and the Ministry of the Attorney General.
22 In carrying out their critical law enforcement role, the police have the authority to use force, including deadly force, when necessary. While in many cases, police use of force may be above reproach, police officers are uniquely vulnerable to allegations of abuse of power. They are also human. They make mistakes, and at times, may break the laws they have sworn to uphold, and on occasion, they may even commit violent crimes against those it is their duty to serve and protect.
23 For over a century in Ontario, when someone was seriously injured or killed in an incident involving police, it was essentially left to the police to investigate themselves. While the police are experts at investigating crime, this situation was obviously not ideal from the perspective of impartiality. With the advent of the civil rights movement in the 1960s, citizens increasingly began to challenge police actions and demand that authorities be held accountable for their conduct.
24 It has been said that “the worst enemy of effective policing is the absence of public confidence.” Public trust in the ability of the police to function lawfully is therefore essential. Over the last three decades, Ontario’s legislators and public policy makers have struggled to ensure that police are not unduly fettered in carrying out their responsibilities, while at the same time holding them sufficiently accountable to the communities they serve.
25 Between 1974 and 1980, a total of six reviews were conducted relating to police oversight in Ontario. In 1981, a pilot project involving civilian review of complaints against Toronto Police Service officers was established. By 1984, civilian oversight of public complaints became a permanent fixture of Toronto policing. In 1988, two fatal shootings of black men by police galvanized the black community and led to the creation of the Race Relations and Policing Task Force. In 1989, that Task Force made 57 recommendations for reform, including that an independent investigative team composed of police and civilians be established to investigate police shootings and determine whether charges should be laid. The Task Force report was followed in 1990 by the introduction of a province-wide system for public complaints about police, as well as the creation of the Special Investigations Unit – an independent civilian agency responsible for investigating the circumstances of serious injuries and deaths of civilians in contact with police.
26 In 1990, Ontario became and has remained the only province in Canada to have an independent civilian oversight body responsible for carrying out criminal investigations involving police. However, the system of police oversight in this province, including the Special Investigations Unit, has continued to attract controversy and calls for reform. Over the next 12 years, another half-dozen reviews of the system were conducted:
27 After a May 1992 riot involving police on Yonge Street in Toronto in which race was seen to be a factor, Stephen Lewis was appointed as an advisor on race relations to then Premier Bob Rae. Mr. Lewis’ June 1992 report recommended policing reforms, including some directly relating to the SIU. He was particularly concerned about the SIU’s credibility, and he recommended that it should be accountable to the Attorney General, who is responsible for the provincial justice system rather than the Solicitor General, who was responsible for police. He also recommended that the SIU receive adequate funding to ensure total independence in the conduct of investigations. In September 1992, the Attorney General took on responsibility for the SIU, but the funding issue remained outstanding.
28 In the wake of the Lewis report, the government also reconstituted the Task Force on Race Relations and Policing to inquire into and report on the progress in implementation of its recommendations. In its 1992 report, the Task Force cautioned that if the SIU’s resources remained inadequate, its critical function would suffer and be subject to severe public criticism.
29 This commission was created in late 1991 after four black Ontarians were shot by police officers within a 50-day period. The commission issued its report in 1995, observing that the creation of the SIU had done nothing to improve police accountability in the use of force. It noted that since 1978, on-duty police officers had shot at least 16 black people in Ontario, 10 of them fatally. It lamented that the SIU’s structure and performance had fallen short of satisfying the need for independent and effective investigations. It cited inadequate funding, lack of police co-operation and the refusal of individual officers to be interviewed as the fundamental problems affecting the Unit’s performance. Among the Commission’s recommendations were legislative and regulatory amendments to ensure police co-operation.
30 In 1996, with a new government in power under Premier Mike Harris, Roderick McLeod was appointed to conduct yet another review of police oversight and the system for public complaints about police. Among its recommendations, the McLeod report called for regulatory requirements to be established for police co-operation with the SIU. The public complaint system was significantly overhauled in 1997. However, despite repeated recommendations for reform, no changes were made to address the chronic concerns regarding the SIU’s performance and police co-operation. That same year, eight civilians died as a result of gunshot wounds inflicted by police, five of them in the Toronto area. This series of police shootings once again highlighted problems in police co-operation with the SIU.
31 In September 1997, as a result of increased pressure to solve the perennial SIU problem, the Attorney and Solicitor Generals appointed former Superior Court Justice George Adams to consult with community and police organizations on ways to improve the relationship between the SIU and the police. The areas of concern identified were the timely notification of incidents to the SIU by the police, control of incident scenes pending the SIU investigators’ arrival, and timely co-operation of police officers involved in the incidents.
32 Mr. Adams’ mandate was not to conduct extensive research and recommend systemic changes based on best practices. Rather, in the highly charged environment of police oversight, he was tasked with exploring the potential for consensus among the police and community stakeholders. He made 25 recommendations in his consultation report in May 1998. Key among them was that the SIU should be resourced in a manner commensurate with its important mandate. Like others before him, he also called for a detailed regulatory framework for SIU investigations.
33 In response, the government enacted a regulation incorporating many of Mr. Adams’ recommendations, and setting out the conduct and duties of police officers involved in SIU investigations. A complementary regulation made a failure to comply with the regulatory requirements a misconduct offence under the Police Services Act. The SIU also received long-awaited additional funding, its budget virtually doubling to $5.3 million.
34 In August 2002, the Attorney General once again appointed Mr. Adams to conduct a consultative review aimed at evaluating the implementation of the 1999 SIU reforms. This report, issued in February 2003, found that increased public funding and the regulatory changes had been successful in building police and community confidence in the SIU and in providing an effective regime for SIU investigations. While acknowledging that the stakeholders continued to have concerns, Mr. Adams declared that “none of the concerns raised … during this review constitute the type of systemic failure existing at the time of the original facilitation.”
35 Having been the Director of the Special Investigations Unit from September 1996 to June 1998, I have more than a passing familiarity with the challenges that faced those investigating police conduct during the time covered by the first Adams report. The SIU then was not only poorly resourced but faced aggressive resistance from the police community. In once instance, a police officer who had been charged during my tenure sued the SIU. The judge dismissed the case in 2001, and remarked in his decision:
There appeared to be, on the part of certain of the police witnesses and certain police associations, an almost Pavlovian reaction against a civilian agency investigating the conduct of police officers in carrying out their duties and against the idea that such an agency could conduct an investigation which would be fair to police officers.
36 Although the Special Investigations Unit’s financial circumstances have improved over time, and both senior SIU and police officials now consistently say they are engaged in a respectful and good working relationship, our investigation revealed that many of the problems identified with police co-operation over a decade ago continue to persist, although they may not be as overt. The lack of palpable tension between the SIU and police services in Ontario is not necessarily indicative of a healthy state. In fact, I am concerned that it may be more reflective of an ingrained culture of complacency than a signal that conflicts have been resolved.
37 While the sense of crisis that existed in earlier decades appears to have faded, there is still an undercurrent of public unease regarding SIU oversight. Civilians continue to be injured in relatively large numbers at the hands of police. From 2003 to 2006, there were 51 shootings of civilians by police in this province, 22 of them fatal. There is as much need today as ever to ensure that such serious incidents involving police are independently and thoroughly investigated. While public outcry may not be as loud as it once was, the same questions regarding independence, impartiality and credibility are being raised. The voices asking the questions have perhaps been conditioned, after more than a dozen systemic reviews, to a lack of effective response.
38 Part of this may be due to the fact that officially, Ontario governments have been hesitant to commit to the SIU model through legislation. With this in mind, it is useful to review the legislative context in which the SIU operates.
39 The SIU’s sole constituting authority is a single skeletal section buried within the Police Services Act as a legislative afterthought. Section 113 provides that “there shall be a special investigations unit” consisting of a Director, who is appointed by Cabinet, as well as investigators appointed under the Public Service Act. The SIU is part of the Ministry of the Attorney General.
40 In order to promote the SIU’s independence, the Act prohibits police officers or former police officers from assuming the position of Director. In addition, no serving police officer can be appointed as an SIU investigator, and investigators are prevented from participating in any investigation that relates to members of a police force that once employed them.
41 The Director’s mandate is expressed succinctly. He (or she) must, at the request of the Solicitor General or Attorney General, cause investigations to be conducted into the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers. He may also conduct investigations on his own initiative. If the Director is of the opinion that there are reasonable grounds to do so, he “shall cause informations to be laid against police officers in connection with the matters investigated and shall refer them to the Crown Attorney for prosecution.” The Director is required to report the results of investigations to the Attorney General.
42 Section 113 also addresses the responsibility of police officials in responding to SIU investigations. It provides that:
Members of police forces shall co-operate fully with the members of the unit in the conduct of investigations. (s. 113 (9)).
43 As noted earlier, the degree of police co-operation required in connection with SIU investigations has been a source of contention