CASE UPDATE - ANNUAL REPORT 2010-2011

OVERSIGHT UNSEEN – SPECIAL INVESTIGATIONS UNIT

On September 27, 2010, the Ombudsman informed the Ministry of the Attorney General that SORT investigators would be conducting a follow-up investigation into the Ministry’s implementation of his recommendations from his 2008 report, Oversight Unseen.

The SIU has a statutory mandate to conduct independent investigations into incidents where a police officer is involved in a serious injury or death. In Oversight Unseen, the Ombudsman directed 25 recommendations to the SIU to promote greater independence, rigour and integrity in its investigations. Six recommendations were focused on the need for the Ministry of the Attorney General to fully support the SIU in its independent oversight role, and 15 called for the government Ontario to clearly define, enhance and entrench the SIU’s authority in new legislation.

Since then, the SIU has made steady and welcome progress in implementing the recommendations directed at it, including assigning sufficient resources to investigate incidents, hiring more civilian investigators and supervisors, providing the public with more details about investigations that have not led to charges, and publicizing instances of police practices that negatively affect its ability to perform its oversight function effectively.

However, the SIU continues to be hampered in its role by the lack of clear statutory direction as to the scope of its mandate. For example, there are competing definitions of what constitutes a “serious injury” triggering SIU jurisdiction. There is controversy surrounding the rights of witness and subject officers to share the same lawyer in SIU cases and to consult a lawyer when preparing their notes. The SIU has also publicly questioned the reliability of police notes prepared this way. At the time this report was written, these issues were before the courts.  

The Ministry of the Attorney General agreed to the Ombudsman’s recommendations when Oversight Unseen was released. However, little progress has been made with respect to key recommendations for legislative reform. It was not until December 2009 that the Ministry retained Hon. Patrick LeSage to explore “the potential for consensus” among the parties on issues affecting SIU and police relations, including the definition of “serious injury,” the right to counsel and note-taking, and the purpose and content of SIU press releases.

Mr. LeSage’s brief report, released in April 2011, reaffirmed several of the concerns that the Ombudsman had identified in his 2008 report, and built on some of the Ombudsman’s suggestions for improvement. Among Mr. LeSage’s recommendations was that a definition of “serious injury” be codified in the legislation, that the same lawyer not represent subject and witness officers, and that the Ministry request that the Law Society of Upper Canada amend the Commentaries to the Rules of Professional Conduct to ensure that the prohibition against officer communication until SIU interviews are completed is not undermined through joint retainers.

Mr. Lesage’s review has added value to the ongoing dialogue concerning the SIU.  However, there are outstanding issues that the Ombudsman is considering as part of his investigation. Delayed notification and failure to notify the SIU on the part of police officials continues to be an area of concern, particularly given the Ontario Provincial Police’s recent adoption of preliminary screening for “criminality” prior to notification of the SIU. Lack of effective enforcement for regulatory contraventions is also a continuing problem. In addition, there continues to be limited transparency around incidents investigated by the SIU.

The Ombudsman expects to report on this investigation later in 2011.