Effective police oversight in Ontario: Myth or Reality?

Date: 2012-04-22

Presentation of André Marin to Civil Liberties Association - National Capital Region
Ottawa Public Library
April 22, 2-4 pm.

*Note: This speech was not live-tweeted, but the following is a précis of the presentation and the question-and-answer period following it.

Moderators: Jean Richer, Richer and Richer, and Karen Reid, senior defence counsel.

André Marin begins presentation.

•    I was appointed Ombudsman of Ontario in 2005, and reappointed for a second five-year term in 2010.
•    We investigate about 18,000 complaints per year. I have a staff of about 100 people. We don't oversee MUSH: municipalities, universities, schools, hospitals, long-term care homes and Children’s Aid Societies. Ontario is the only province where, if you have a complaint about a hospital, there's no independent body to turn to.
•    Strong powers in the Ombudsman Act: I can enter any provincial government office, access documents, and subpoena witnesses. It is an offense to obstruct or resist the Ombudsman. I remind my children of this all the time.
•    Power of the Office rests with 'moral suasion': ability to convince government to do the right thing. Need an unassailable investigation to do this.
[Reviewing findings of 2008 investigation into SIU, which resulted in report, Oversight Unseen]
•    Virtually all SIU investigators were ex-police officers and white males over 50. They did not reflect the diversity of the community, which caused problems with credibility.
•    SIU investigators wore police rings and ties while interviewing victims and families - imagine what message this sends. Would you have confidence in the impartiality of their investigation if you were a victim or family member and the investigator showed up wearing a police tie pin?
•    SIU investigators even showed up at the Ombudsman’s office for interviews during our investigation wearing police rings, ties and tie clips.
•    The SIU didn't have enough resources. It was concerned about overtime and didn't dispatch investigators with the rigour you would expect.
•    SIU investigations lacked rigour. It took a long time for them to get to the scene. Evidence was lost. SIU also delayed in interviewing police witness officers in response to concerns about psychological stress of situation. This was contrary to how police deal with civilian witnesses; they don’t allow them to leave the scene before they give a statement about what happened.
•    The SIU's annual report did not mention problems of cooperation with police. As far as the report read, everything was hunky-dory.
•    Lack of transparency was also a problem; for example, reports from the director that set out reasons not to charge an officer are not made public. We accept there will be a high volume of clearing of charges due to nature of police work but it would be nice to know how someone came to be killed or injured by police, and why the director concluded no charges were warranted.
•    We concluded in 2008 that police oversight had hit rock bottom in Ontario, and that SIU investigators looked at cases through blue-coloured glasses. SIU had become too timid and complacent in doings its job.
•    We released our report, Oversight Unseen, in 2008. A new SIU Director was appointed. He took on a lot of problematic issues with police cooperation.
•    Government responded too by appointing retired chief Justice Patrick LeSage to facilitate the resolution of issues, including vetting of police notes, police witness officers sharing counsel, and the definition of serious injury.
•    Our second was investigation launched in 2010. We had seen encouraging progress in SIU's evolution in the last two years. We decided to look at how the Ministry of the Attorney General was supporting the SIU.
•    Justice LeSage's recommendations were similar to ours: Serious injury needs to be defined in legislation; officers should not share counsel; and there should be no communication between officers during a SIU probe.
•    Government accepted Justice LeSage's recommendations. Meanwhile, however, tensions continued to escalate between SIU and police.
•    We recommended SIU deal with lack of cooperation in its annual report and that it stand up and protect the integrity of its investigations. We also recommended the SIU write to police services whenever they did not cooperate (such as, by not notifying SIU or by tampering with scenes). They did this.
•    Our second report in 2011 [Oversight Undermined] concluded that the problem now lies not with the SIU, but with government’s failure to support the SIU in upholding the law.
•    The Ministry of the Attorney General sought to avoid controversy and tried to withhold an SIU annual report that detailed lack of cooperation; it claimed it was too controversial.
•    The Ministry dismissed the SIU Director’s concerns about note vetting and discouraged Director from speaking out about lack of cooperation.
•    We found email evidence that government believed I wouldn’t follow up on the recommendations I made in 2008.
•    SIU Director Ian Scott wrote 227 letters to police services telling them how they broke the law by not notifying or cooperating with the SIU. He got back only 20 substantive responses.
•    Police chiefs sworn to uphold the law were ignoring official letters by their official police watchdog telling them that their police services were breaking the law.
•    The Ontario Association of Chiefs of Police actually passed a resolution that police chiefs should ignore the SIU Director’s letter. A police chief responded to me at another talk that a police chief had no legal obligation to respond to my letters. I answered that they at least have a moral one to respond.
•    We found numerous cases: Broken bones, a man going to hospital unconscious, and a woman bitten by a police dog. For these, the SIU was not notified by police.
•    SIU found 180 cases of interference with police note-taking and or where police refused to discuss notes.
•    Ontario Court of Appeal in the Minty and Schaeffer cases found that police witness officers do not have the right to have lawyers help them prepare or vet their notes or provide advice on note preparation, and that they don't have the right to share lawyers. Court even ordered police union to pay families’ legal costs to $100,000.
•    Police haven't given up. They are seeking leave to the Supreme Court of Canada to appeal the Minty and Schaeffer decision. The SIU is cross-appealing.
•    We have a new Attorney General and are about to have a new deputy Attorney General. We need to have new legislation that clearly defines the SIU’s mandate and the consequences for police officers who don't obey the law and cooperate with the SIU. It should be an offense punishable by fine or imprisonment not to notify or cooperate with SIU; if this was the case, you would see a big change. It could be similar to the section of the Ombudsman Act where it is an offence punishable by fine or imprisonment for obstructing the Ombudsman.
•    After my report, the SIU began receiving responses to letters, including some they wrote up to three years ago, and notifications of serious incidents have increased.
•    One example: The Windsor police chief played down to newspaper the Windsor Star his lack of response to SIU letters. I tweeted that not notifying the SIU is contrary to law and deserves a response. Made a lot of waves in Windsor. [One of the moderators notes that the Windsor Star was just nominated for a journalism award for its reporting on this particular issue.]
•    We are keeping a very close eye on this issue and there still may be a third investigation and report.
•    What's next: leaves to appeal to the Supreme Court of Canada on Minty and Schaeffer cases are outstanding. It will be interesting to see if the Supreme Court of Canada decides to hear the case. Meanwhile, the SIU reports improvement in police notifications - will see close to a doubling of them, I suspect, in the SIU’s next annual report.
•    Police rings and ties, however, are still a problem. Journalists from France did a documentary on police oversight and they interviewed myself, as well as SIU director and investigators. An SIU investigator was caught on video with ring that was pixelated out so you couldn't tell what kind of ring it was. We are following this up with SIU director. SIU not out of the woods on this issue. If he's wearing the ring on the video and he went to trouble to pixelate it out because it’s a police ring, it must be something he’s wearing every day. We're still on the issue and we may take a third kick at the can if necessary.

Questions and Answers

Q: We are much more confident with someone Iike you in the position you are in. If you had a system where people were well motivated it might work the other way ie; police officers might be more open and forthcoming with investigators who wear police ties or rings.

A: That could be, but when an independent oversight body is conducting an investigation it’s important that its investigators project a more impartial image with all the parties.

Q. Isn't there some charge that can be laid if the SIU doesn’t get notified immediately by police? Shouldn’t there be a consequence for not obeying the law?

A. Exactly right, that’s my point. There is no penalty for not cooperating with or failing to notify the SIU when required. This is why the SIU Director is writing Chiefs of Police in cases where there is a lack of notification or cooperation, so at least it's not being ignored.

Q. Have you ever been threatened by the police as Ombudsman?

A. As Ombudsman, no.  As SIU director I had a police officer leave me a threatening message on my voicemail after I decided to lay a charge. I advised the responsible police chief and the matter was dealt with. That was the only time.

Q. Do you have any anecdotes about the SIU’s dealings with Ottawa police?

A. We found 11 letters that were sent by the Director of the SIU to the Ottawa Police Service to complain about issues related to lack of cooperation and notification or delayed notification. Only one of those received a substantive response.  To me that's troublesome.  Police services are responsible to enforce the law.  When the official responsible for police oversight puts a police chief on notice that his service failed to follow law, that’s deserving of a response. I am hopeful now that when the SIU Director writes to police chiefs to point out failings of their services, he will get a fulsome response. If there is a third investigation and report, we will be including an appendix with a list of all the letters written and those which were responded to and not responded to include by which police force, which issues were raised, etc.

Q. How much time are you spending on this issue versus all the other complaints your office receives?

A. We do an intricate triage for all complaints we receive. We pick our cases carefully.  We are also currently conducting a systemic investigation into [the Ministry of Community Safety and Correctional Services]' use of force and allegations that policies and procedures were not followed when prisoners complained of use of force. We are also continuing to keep an eye on the SIU. We pick our cases carefully. We never run out of cases to look at. Over the past seven years we've improved the qualifications and skill level of our staff and we’re maximizing our talent and working to identify those cases that resonate with public interest, and which have a real systemic impact.

Q. Another way to deal with police oversight is to set up people's commissions. For example, in Ottawa the Police Services Board refused to look into an incident of alleged police violence that was complained about. We set up a people's commission to look at the issue. Is this effective? Should we push for stronger regulations or should we be doing other public things in a more political format?

A. No doubt there is value in this type of citizen engagement. We experienced this during our G20 investigation, in a bit of a less-organized fashion. We put out a call for anyone who had information relevant to the investigation to come forward and over 5,000 people approached us with their photos and videos. I believe this kind of thing adds value but there is also no substitute for an unassailable, rigorous and independent investigation.

Q. How are people selected to work at the SIU?

A. They run competitions. As much as the police dislike being investigated by the SIU, as soon as they retire they often apply to work for them. The SIU needs to keep an open mind and to have a work force that is more reflective of society’s diversity. They are much more sensitive to this now. If we can just get them to stop wearing police rings we will be further ahead.

Q. You said your investigation found that the make-up of the SIU was virtually all white males over 50. Are you saying it was like 99 percent and is it changing?

A. I can't give you an exact percentage but most of their investigators fit that demographic and they were almost all ex-police. The make-up of the SIU workforce is improving and we’re keeping an eye on the SIU’s efforts to reach out beyond that gene pool. We’re encouraged so far.

Q. Was the G20 outside of the SIU mandate? Has the police role in the G20 been forgotten?

A. We released our report, Caught in the Act, in late 2010 and we were first out of the gate. The government then hired retired Chief Justice Roy McMurtry to review the Public Works Protection Act and he issued a report, which echoed all of our findings. We are still waiting on the report from the Office of the Independent Police Review Director on its systemic investigation into policing during the G20 – as far as I know there is no date in sight for its release yet. As well, retired Justice John Morden was commissioned by the Toronto Police Services Board to review the actions of the Toronto Police and this report has not yet been completed either. The SIU has investigated and laid a few charges that are currently before the Courts. As far as I know, that’s the status of the G20. Many people including me are looking forward to the reports into the investigation of policing during the summit especially as we are now approaching the two-year anniversary of the G20 weekend.

Q. What about the videos of police using force against protestors? Why wasn’t the SIU involved?

A. In some cases the SIU did not become involved because their mandate is only triggered if there is serious injury or death. The SIU did receive complaints and investigated and a few charges have been laid. In other cases, the SIU couldn't identify the police involved. Over 100 police officers had ripped off their nametags and they all looked identical in their riot gear. I understand that the police who ripped off their nametags were subsequently the subject of disciplinary charges.
Q. Can you comment on the appointment process for Ombudsman and also is there a concern about Queen’s Park not appointing someone like you again because you’re doing such a good job, and perhaps of other watchdogs across Canada not using their powers to the same extent that you do?

A. I am appointed by the Legislative Assembly and I can only be removed for cause. I have similar independence to what a judge has. In 2005 I had to re-apply for my job and there was lots of public anxiety and concern around the process. My job is not an easy one. I always do my job as though it’s my last day on the job. It’s a very important one and it has to be done with regard to the public interest. I think I tend to do my job the hard way; there are some who prefer to just pick the low hanging fruit, but I think I’m doing it the way it was intended to be done. Arthur Maloney, the first Ombudsman of Ontario started the Office with a bang. He took the job very seriously. He paved the way for me years later to do my job. I think he waged incredible battles to establish the Office. I’m just following his tradition but yes, they are big shoes to fill.

Q. You point out that legislative changes are needed. What can be done to ensure that legislators are not overly influenced by the vested interests of the police and the establishment?

A. This is a good point. In my presentation there is slide of a memo that we found where it basically confirms that the government is not proceeding with legislative changes due to vehement opposition from police. We need to keep the police interests groups in perspective. The voice of the citizen also needs to be heard. My job is to make sure the voice of citizens gets heard and to remind the government that they need to be acting in the public interest.

Q. Is it possible there will be an Ombudsman investigation of the Office of the Independent Police Review Director (OIPRD) or the Ontario Civilian Police Commission (OCPC)?

A. The government excluded the OIPRD from my Office’s jurisdiction when it was created. We objected to this as it did not make sense for this government agency to be outside of my Office’s purview, but we lost the battle. So unfortunately no, we are prevented from going there. Similarly, we have very limited jurisdiction over the OCPC.

Q. The decision taken by the OPP to make its own process and prejudge the question before calling the SIU is astounding. So too are the obvious cases of serious injury which were not reported. What is it, in your view, that is preventing the Ministry of the Attorney General from clarifying the definition of serious injury? Is it not in the public’s interest to clarify this?

A. What we have seen is a complete abdication by the two ministries responsible [Ministry of Community Safety and Correctional Services and Ministry of the Attorney General]. The law says that the SIU must be notified immediately. Do you see any ambiguity in the word? If there is a shooting, the witness officer should call it in to the SIU. The OPP process is byzantine. The report of the incident has to go right up the chain to the commissioner, he calls the shot, then it has to go back down the chain again. Tell me how this respects the law. We give police officers a gun, why can't they make the call whether an injury is serious or not? I think part of the answer is that they don't like to call the SIU. Immediately is immediately. You asked me why does the Ministry walk away from issue - we have a new Attorney General and we hope a new set of eyes will see things differently than in the past.

Q. Given all the concerns about police notes and other tricks, wouldn’t you want to have SIU investigators who are some former police officers, who can spot the tricks from their experience versus the “let’s protect our own” mentality?

A. There is no doubt that ex-police bring some value to SIU work. I’m not against that but there has to be balance and the SIU needs to have credibility in the community and be seen as impartial. You also have to keep in mind that SIU investigations aren't whodunits. They involve more legal determinations than investigative ones. If everyone did their job properly ie; the SIU was notified immediately, got to the scene right away, evidence was preserved, witnesses gave statements etc., if the wheels were turning as they should, the investigation should not be that complex. We usually know who the subject officer is, since the gun is seized. Ex-police may be of use but they are not absolutely needed in a perfect world. What is more important is to have an impartial, objective and vigorous investigation.

Q. Are you saying the procedure is there and not being used or the procedures aren't there?

A. It's both. There is a lack in the procedure, for example. There are as many definitions of serious injury as there are police services in Ontario. We need to bring clarity to the process. The SIU also needs to conduct rigorous investigations and use the tools at its disposal. Both need some work.

Q. What are you thoughts on what the consequences should be for not complying with the legislation?

A. The Ombudsman Act has an offence provision right in the Act. It is an offence not to cooperate or to obstruct the Ombudsman, and that’s punishable by a fine and a period in jail. We never get cooperation issues. The penalty isn’t important. A fine or jail of any kind and you will see marked improvement. Right now we have a wind of
law and order sweeping the country. In my view oversight of the police is a law and order issue. You won't find a more pro police person than me. I'm a fan of police. What I do is tough love. If you are cleared after a good investigation that is a good thing, to be cleared after a flawed investigation leaves a bad taste in your mouth.

Q. As the Ombudsman, if a ministry is not implementing polices that don't conform to law, can you look into this?

A. Absolutely. During our G20 investigation we looked at the fact that there was a secret regulation that wasn't published, which lead to thousands of arrests. I concluded that the regulation was contrary to law and likely unconstitutional. Retired Chief Justice McMurtry came to the same conclusion. The Government agreed to abolish the PWPA as a result.