Civilian Oversight: Use It or Lose It

Civilian Oversight: Use It or Lose It

May 24, 2014

24 May, 2014

Speech by André Marin, Ombudsman of Ontario, to the Ontario Association of Police Services Boards, Spring Conference, May 24, 2014.

1Good morning and thank you for inviting me to speak today. It’s been two years since I last had the pleasure to present to your group. I would like to start with a brief introduction of myself and what my office does, and then I’d like to review some of our recent work relating to what you do – overseeing the police.

2I started my career as a Crown Attorney prosecuting criminal offences in Ottawa, and then became Director of the Special Investigations Unit from 1996-1998. I then became the first Ombudsman for National Defence and the Canadian Forces from 1998 to 2005. I became the sixth Ombudsman of Ontario in 2005, and was reappointed in 2010.

3That means I have been in the oversight field for 18 years. These jobs don’t necessarily make me popular, and as police services board members, you also have to make difficult decisions that aren’t always popular. The fact is, overseeing powerful organizations is not the best way to make friends.

4Let me explain a bit about what the Ombudsman of Ontario does. We oversee more than 500 different government organizations – ministries, corporations, agencies, boards, commissions and tribunals. We will soon be releasing our Annual Report, in which you’ll see we dealt with 27,000 complaints in the past year. This number has grown steadily in recent years – not necessarily because there are more problems, but because more people have become aware of our office and the value we can provide, thanks to our visibility on social media. (Video of this speech is available on YouTube.)

5However, our office does not oversee the federal government, the courts or private businesses. Nor do we have any jurisdiction over the broader public sector, also known as the “MUSH” sector: municipalities, universities, school boards, hospitals, long-term care, children’s aid societies and the police. The one exception to this, as many of you know if you serve on municipal councils, is that we have the power to investigate complaints about closed municipal meetings in about half of the municipalities in Ontario.

6The past year has been a banner year for our office. We have more ongoing large-scale systemic investigations than ever before. What’s more, for the first time, the government introduced legislation to expand our office’s mandate into the MUSH sector. This is something that has been called for by every Ombudsman of Ontario since our office was established in 1975, and by dozens of petitions and private members’ bills.

7As part of Bill 179, the Public Sector and MPP Accountability and Transparency Act, 2014, the government proposed to give my office authority over municipalities, universities, and school boards. It proposed a separate Patient Ombudsman to oversee hospitals and long-term care – which we in turn would oversee – and gave the the Provincial Advocate for Children and Youth increased powers to investigate children’s aid societies.

8Unfortunately, Bill 179 died on the order paper when the Legislature was dissolved on May 2 in preparation for the June 12 election. We will follow post-election developments closely to ensure the momentum towards this much-needed oversight of MUSH organizations is not lost.


Police-related investigations

9My office has issued three reports on major systemic investigations relating to policing:

  • Oversight Unseen (2008), focusing on the Special Investigations Unit and perceptions that it was ineffective and had a pro-police bias;
  • Caught in the Act (2010), involving the province’s use of a little-known war measures act to expand police powers for the June 2010 G20 summit in Toronto; and
  • Oversight Undermined (2011), into the Ministry of the Attorney General’s lack of support for the SIU in its police oversight role.

10We have a fourth systemic investigation underway now, involving the direction that the province provides to police for de-escalating conflict situations. This latest case was prompted by last year’s police shooting on a Toronto streetcar of 18-year-old Sammy Yatim.

11I’d like to tell you a bit about all four investigations, talk about how your role as police services board members – how you can support my office’s oversight function, and how we can support yours.


Special Investigations Unit

12Our first investigation into the SIU found that it was a “toothless tiger” that was perceived as being biased toward police. We looked at the secretive nature of the SIU, how families and the public were kept in the dark about the results of its investigations, how slowly the investigations were conducted, the general ineffective nature of the operations of the SIU, and the fact that after many years it still lacked credibility with the public and the police.

13The biggest problem with the SIU, since its creation 24 years ago, has been that the obligation for police to cooperate fully in its investigations is not defined in the legislation and it varies from police service to police service. The same goes for the definition of “serious injury.” I recommended strong new legislation to clarify both issues and implement consequences when police fail to cooperate. I also called on the SIU to develop more rigour and transparency in its work.

14In response to our investigation, the SIU brought in a new director, Ian Scott, who hired more investigators who were not ex-police, and started writing to police services and police services boards to call attention to cases where police failed to co-operate with the SIU. He also put out more press releases and laid more charges – which in turn resulted in more police resistance. He ended up serving five years – the first director to complete a full term since the creation of the SIU in 1990. He was very rigorous and effective in his job, and controversial.

15In fact, the reason we launched our second investigation into the SIU was because we noticed that even as Director Scott was improving it internally, the Ministry of the Attorney General and the government at large had made very little progress in implementing our recommendations for stronger legislation.

16There were still problems with police failing to notify the SIU in cases of serious injury, and continuing disputes about police having lawyers “vet” their notes before submitting them to SIU investigators. The SIU can’t operate in a void; it needed the support of the Ministry of the Attorney General to be able to succeed.

17We found that the Ministry deliberately chose not to act on our recommendations due to “vehement police opposition.” That is a direct quote from an internal Ministry email we uncovered. The Ministry of the Attorney General had essentially censored the SIU director – even preventing him at one point from issuing his annual report because it was seen as too provocative. The SIU is supposed to be an arm’s-length oversight body – how can it be pressured not to issue a report?

18Another major ongoing issue was that of lawyers – acting for police involved in an incident under SIU investigation – vetting officers’ notes before they were submitted to the SIU. Often, the same lawyers would represent the “subject” officers (i.e., those responsible for the serious injury or death), and the “witness” officers (any others who were on the scene) at the same time. My view is that neither practice should be allowed, and I called for an end to them in Oversight Undermined.

19Unfortunately, the government washed its hands of the lawyer issue and sent it to the Law Society of Upper Canada. Surprisingly, the Law Society sent a letter to lawyers saying they must discontinue these practices. However, lawyers lobbied the Society to retract the notice, and it did. It blinked.

20Instead, it was ordinary citizens – the families of two men who were shot and killed by police – who persevered and pursued this issue all the way to the Supreme Court of Canada, at their own expense. They first won the case at the Ontario Court of Appeal, but the police then cross-appealed, because they still wanted lawyer to be able to vet notes. The SIU cross-appealed, agreeing with our report.

21Ultimately, the families won. The Supreme Court of Canada agreed with them – and with our report – and did the dirty work that Ontario’s Ministry of the Attorney General wouldn’t do. They even quoted Oversight Unseen, and declared once and for all that lawyers cannot vet the notes of police officers in SIU investigations.

22This is what we recommended in 2011. Had the government followed our recommendation, perhaps it would have spared the families, police services and police associations hundreds of thousands of dollars in court costs.


G20 summit – Toronto, June 2010

23Almost four years ago, in June 2010, the federal government hosted the G20 summit here in Toronto. As part of the intense security around the event, the Ontario government agreed to a request by the Toronto Police (who were responsible for policing outside of the zone where the world leaders were meeting) to revive a little-known piece of legislation that dates back to World War II: The Public Works Protection Act (PWPA).

24Without informing the public, they passed a new regulation under the PWPA that allowed the police to conduct arbitrary arrests and detentions without cause and without reasonable grounds. The PWPA was passed in 1939 – but since then, the Charter of Rights and Freedoms has been introduced, and it does not allow for arbitrary detention and arrest. So we investigated whether the law was illegal, in light of the mass arrests that happened during the G20 – the largest violation of civil rights in modern Canadian history.

25In my report, Caught in the Act, I recommended that the PWPA be scrapped and replaced. It can be used reasonably and legally, for example, to screen people entering a public building such as a courthouse, where risk is identified. But it should never be used as it was by police during the G20. The government hired retired Chief Justice Roy McMurtry, who agreed with me that it was unconstitutional.

26Twice since then, the province has acted to replace the PWPA with new legislation, but both times, it has died on the order paper because of an election. The PWPA is still in effect.


The Morden Report

27As you all know, my investigation was the first, but not the only one sparked by the G20 and the actions of police during that weekend. There were several others, including by the Office of the Independent Police Review Director (OIPRD) and by the SIU, which laid charges against an officer (who was ultimately tried and convicted of injuring a protester).

28The Toronto Police Services Board also commissioned Justice John Morden to review how Toronto Police had acted during the summit. His report was issued in June 2012, a month after I spoke to your conference in Ottawa (in May 2012). You may remember that at that time, I urged you to be rigorous in holding your police services to account.

29I would like to to take a few moments to address Justice Morden’s report, because it was an excellent, comprehensive report that was well worth waiting for. Essentially, he told the Toronto Police Services Board (TPSB) that they had a lot more teeth than they thought.

30Justice Morden’s respect for oversight goes way back. He was also the author of a landmark Court of Appeal judgment in 1979 that said the Ombudsman of Ontario had the power to review decisions of quasi-judicial tribunals – a hugely important judgment for my office (although well before my time). The government of the day was arguing that the Ombudsman Act did not permit our office to oversee tribunals, but Justice Morden said we – and they – had been misreading our Act.

31Similarly, in 2012, he demonstrated how police services boards were misreading the Police Services Act. For too long, he said, the TPSB had “viewed it as improper” to question the Chief about operational matters.

32There were some illuminating quotes in his report. For example:

A statute’s evolution, that is, the changes 
made to it over the years since its first 
enactment, can sometimes be a helpful guide to its proper interpretation and, also, can afford useful perspective and context for appreciating the significance of its policies from time to time....

Two important amendments were made in 1997. 
This statute increased substantially the number of provisions bearing on a board’s responsibility for providing police services at the municipal level and, particularly when measured against the lack of guidance in the pre-1990 legislation, should be “interpreted as being remedial and … given such fair, large and liberal interpretation as best ensures the attainment of its objects".

33He uses “remedial” as opposed to “penal”, which refers to punishment. As Police Services Boards, you are representing the public – and you aren’t issuing punishments. A decision by the Supreme Court of Canada in 1984, relating to that province’s Ombudsman Act, uses similar language to describe an ombudsman’s powers – they are remedial and therefore should be given a large and liberal interpretation. For that reason, Justice Morden is of the view that we shouldn’t do our jobs with blinders on. We should see our legislation as offering opportunities, not limitations.

34I’ll give you an example from my work. When I started this job in 2005, I was told that because there was no specific provision in our Ombudsman Act to publish reports, I could only publish one a year. I read the Act very carefully, and in fact, it says I am to publish “a minimum” of one report per year. It does not say it can’t be more. So I started publishing reports on systemic issues. I saw the legislation as giving us opportunity, not limiting what we do.

35Sometimes, it’s easy to take an overly legalistic approach to our mandates and not see that they offer opportunities in the public interest. What often happens in this world of oversight is that you get into a habit of doing things a certain way because that’s how it has always been. Justice Morden questioned the status quo.

36Regarding the role of the police services board versus that of the police chief, he said:

It is sometimes said, in simple and general 
terms, that policies are for the Board and operations are for the Chief of police, and 
that the two must always be kept separate. 
Apart from being impossible to apply in its own terms, this statement does not represent what the [Police Services Act] provides.

It would seem clear that the Board and Chief were conducting their interactions according to the invalid notion that matters of policy and operations were to remain divided, with policy being the concern of the Board and operations being the sole concern of the Chief...

The [Toronto Police Services] Board has limited its consultative mandate and has viewed it as improper to ask questions about, comment on, or make recommendations concerning operational matters. The board's approach in this regard has been wrong.

37The value of asking a retired judge such as Justice Morden to conduct this type of inquiry lies in the fact that they have impeccable reputations, and they can speak truth to power. I think he was quite brazen here, but also correct in taking this approach. He wasn’t afraid to speak the truth, based on his experience as a former Court of Appeal judge, and I thought he brought very refreshing observations to this debate over operations versus policy.

38His report received a lot of attention when it was published, and sparked important discussion about the demarcation between policy and operations. It also led the Toronto Police Services Board Chair, Alok Mukherjee, to extend a personal apology, which I think was very brave. I called him after that and thanked him. He did the right thing.

39I was also pleased to see your organization support Justice Morden’s report and signal to the province that you would find ways to implement his recommendations provincewide.


Lessons learned

40When we look at these cases, and Justice Morden’s report, and your very important jobs, what can we learn?

41I think we all know that the Toronto Police Services Board should have been more aggressive, inquisitive, and proactive instead of reactive during the G20 summit, all of which the board has acknowledged.

42But in civilian oversight – whether it’s my job, your job, the SIU or the OIPRD – we all need to demonstrate our value. We need to gain and maintain public trust. We can be doing a great job, but if no one knows we’re doing a great job, then we might as well not exist.

43I’m speaking from experience: When I became the Ombudsman of Ontario, I was greeted by a letter that basically said “Congratulations, welcome to the job; we are going to be abolishing your office.” It was a memo from the Council of Deputy Ministers, informing me that Ombudsman Ontario was on a list of “programs” targeted for “elimination.”

44I realized that we had to reinvent ourselves and breathe new life into our mandate. We began conducting large-scale systemic investigations and issuing reports with solid recommendations, most of which have been implemented by the government. They have helped thousands, if not millions, of Ontarians, and are part of the reason why our complaints are up to 27,000. We have demonstrated the value of our services, and people now have trust in our operations.

45Another measure of our office’s value is that we now conduct training in how to conduct systemic investigations for other ombudsmen from across North America and all over the world. Our course is called “Sharpening Your Teeth: Advanced Investigative Training for Administrative Watchdogs.” It helps ensure that those who are given oversight powers know how to use their teeth effectively. One of our recent trainees was South Africa’s Public Protector Thuli Madonsela, who was recently listed as one of Time magazine’s 100 most influential people in the world.

46My sense, based on many years as a “watchdog,” is that the public desire for accountability in public institutions is stronger than ever now. There is a movement afoot to ensure that public bodies have adequate oversight – and that the oversight bodies themselves are effective.

47The Toronto Star recently ran a series called “Broken Trust” about how the Law Society of Upper Canada was not doing its job of going after lawyers who cross the line. And the OIPRD was recently criticized in court for not investigating complaints, saying its mandate gave it that discretion. In that case, a judge at the divisional court level stated: “I find considerable irony in such a position being taken by a body that was created for the purpose of enhancing fairness and transparency in the handling of civilian complaints against police officers.” The Ontario Court of Appeal agreed, saying the OIPRD “shall” review every complaint – another case of a police oversight body being reminded to read its own statute.

De-escalation investigation

48The fourth police-related investigation I want to raise with you is one that we are currently conducting. We are looking at how the Ministry of Community Safety and Correctional Services provides de-escalation direction to police. Right now, new police recruits start their training at the Ontario Police College, but each police service has its own approach for de-escalation in conflict situations.

49The provincial government has the ability to give direction to police services – for example, several year ago, it adopted a provincewide policy on police pursuits: A police officer must get a supervisor’s consent before engaging in a pursuit. Since that policy was brought in, there has been a substantial decrease in police pursuits causing injury or death. We are reviewing whether there should be a similar policy on the training of police officers to de-escalate conflict. Several provinces do have such a policy already.

50As part of our investigation, we wrote to every police chief and police services board, offering them the opportunity to provide input. Here in Toronto, the police services board has been very gracious and co-operative, but the Toronto Police Service has said they will not co-operate because we don’t have jurisdiction over them. This is true – but the results of our investigation may mean changes to how they work.

51At the beginning of our investigation, the OPP were also recalcitrant, but they’ve since become very co-operative and we’re fortunate to have them involved.

52I have also asked the ex-Deputy Chief of the Toronto Police Service, Mike Boyd, who was also Chief of the Edmonton Police Service and interim Chief of Police in Toronto, as well as Vern White, who was Deputy Commissioner of the RCMP, Durham Regional Police Chief, Ottawa Police Chief, and now is a Senator, to be special advisors for the investigation. They have a provided a lot of insight and have been an excellent sounding board for me.


Conclusion

53I want you to leave this presentation thinking about your role under the statute and how to breathe new life into your mandate. With regard to the SIU, I would urge you to support it in ensuring police fully co-operate with its work.

54As a follow-up to the G20, you know now that whether it is a parade, a demonstration or a conference in your town or city, you have the ability,according to Justice Morden, to hold question your police service about their plans. With the  PWPA still in effect, Justice Morden’s lesson is that you are the front line, to ensure police do not overstep their powers.

55And finally, not only do I invite your participation in the de-escalation case, but I trust that when it is done, you will be prepared to follow through on the province’s direction, if that is what we recommend. It will be in your hands, and up to you to ensure your police services are taking the Ministry’s direction to heart. The public will be counting on you.

56These things are within your remit, and I encourage you to do them. I encourage you to get engaged, get involved, and to keep in mind that my office is here to help, if you ever need it.