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Saturday, August 16, 2008

Confidence in SIU has eroded

August 16, 2008
Robyn Doolittle/Joanna Smith, The Toronto Star

Rob Maltar had been waiting nearly a year for the thick envelope to land on his doorstep.

Expecting to find answers about how his brother died while in police custody, he ripped open the package. Out tumbled a stack of paper. Scanning it, his heart sank. Inside, sent from the Attorney General's office, was his own testimony, a collection of newspaper clippings, a series of memos between government officials. And not much else.

"They didn't give me anything I didn't already know," he said.

Maltar's frustration is not unique.

Twenty-two individuals have been fatally shot by police in Ontario over the past five years. Like Maltar, many of their families feel robbed of an explanation by the only agency that could give them answers: an agency that twice in the past decade has been told in government reviews that it needs to become more transparent.

The week his brother died – Sept. 18, 2005 – Maltar filed an access-to-information request for all the records involving his brother's death. James Maltar died in a Port Credit police detachment; the SIU cleared police after ruling that he shot himself with an officer's gun.

Maltar was denied the director's report, follow-up reports, the police witness list, witness statements, investigator's notes, police officer's notes, police communication, a compact disc of images, scene videos and any records from the Centre of Forensic Sciences.

"I got a bunch of letters from one person to another person about information they were sending back and forth, but I never got the information they were sending," the 44-year-old Maltar said.

The SIU is unique in Canada as the only fully civilian agency that investigates police. Police agencies are required to call the SIU whenever a civilian is seriously injured or killed in Ontario and police are involved.

Operated under the umbrella of the Ministry of the Attorney General, it has 41 civilian investigators:

Twelve are full-time, stationed at the SIU's Mississauga office.

Twenty-nine are strategically located throughout the province.

Of the full-time investigators, five are former police officers (who are barred from investigating their former forces). Seven have experience in various government agencies, labour, immigration, corrections, the legal profession or medicine..

Once an incident is investigated, findings are submitted to the SIU director, currently former Crown attorney James Cornish, who decides whether to clear or charge police officers. From there, the report is sent to the Attorney General. No one else gets access to it.

The unit's creation in 1990 was trumpeted as a landmark of police accountability in Canada. But today, there are signs that confidence in the SIU has eroded.

Governments and their agencies often cite the Freedom of Information and Protection of Privacy Act when withholding information, says lawyer Barry Swadron, a prominent Toronto social justice lawyer. For example, witness testimony is often withheld to protect the identity of the witness. But the content could be released if the names are blacked out, he said.

"They hide behind legislation too much." Maltar was told the records he requested are protected under the act, which states a ministry "may refuse to disclose a record that is a report prepared in the course of law enforcement, inspections or investigations."

Former Ontario judge George Adams first called for greater transparency in 1998. He had been asked by the provincial government to find ways to improve the SIU after years of tension with police.

He recommended the SIU director submit his reports not just to the attorney general after each investigation, but also to the public whenever no charges were laid.

The Attorney General's office declined to comment on this story.

In 2003, when Adams reviewed the SIU again, reports were still being withheld.

The SIU's summary of the 2003 report on its website states: "both the police and community groups see value in the director's report being available to the public."

Adams said at the time that releasing the reports would require an amendment to freedom of information and privacy legislation, and called it "central to providing the necessary accountability and community confidence."

And he acknowledged the agency had moved toward adopting the spirit of the recommendation by including more details in its media releases and debriefing families.

Today, the SIU is again under investigation by a government agency, this time the Ontario Ombudsman. Citing this probe, expected out next month, the SIU declined to participate in the Star's story.

"As the interview you seek directly relates to matters the Ombudsman's Office is investigating, out of deference to the Ombudsman's process, it would be inappropriate for me to comment on these matters," Cornish said in a letter couriered to the Star.

Nov. 3, 2006. Julian Falconer had been debating this moment for months. The prominent trial lawyer, who specializes in police accountability, was about to publicly lambaste the SIU – an agency he had spent a decade championing.

And he was going to do it on a legal panel at the Criminal Lawyers' Association's annual conference, while sitting directly alongside SIU director Cornish.

Falconer blasted the erosion of "accountability" and "leadership" within the agency, and questioned if the SIU was earning its tax dollars. He highlighted a case in which his client, Hafeez Mohamed, was beaten "within an inch of his life" after Durham police found him driving drunk. The SIU cleared police of all wrongdoing.

Sitting in his Yorkville office two weeks ago, Falconer thumbs through a stack of graphic photos taken after Mohamed's arrest. They show his face was beaten raw.

"You can't measure the quality of the organization or its institutional progress by the number of charges it's laying per se," he said recently. "That's not a fair way to measure. On the other hand, extremes do tell a story.

"For years to have gone by without a charge being laid under the directorship of Cornish, it's probably an indicator that we ought to be asking more questions."

Since 2003, the SIU has cleared police of wrongdoing in 29 of 31 fatal shooting cases. Two are ongoing.

The SIU hasn't charged an officer after a fatal shooting in nearly a decade: The last was March 31, 1999. York Region police Const. Randy Martin was charged with second-degree murder in the 1998 killing of Tony Romagnuolo. A jury cleared the officer the following December.

Prior to that, the SIU charged York police Det. Robert Wiche in the fatal shooting of Faraz Suleman on June 19, 1996. After being acquitted in court, Wiche launched a $30 million lawsuit against the SIU. It was thrown out in May 2001.

A search by the Star unearthed only one case since 1994 in which an SIU firearms charge against a police officer was upheld in court. Det. Const. Carl Sokolowski was convicted by a judge of careless use of a firearm, relating to the 1991 shooting of Jonathan Howell. Howell was left disabled.

Sokolowski was convicted, but granted an absolute discharge, meaning he did not have a criminal conviction registered against him.

At the end of 2006, Falconer took his concerns to the Ontario ombudsman, André Marin. A little over a year ago, Marin announced he would be launching a full-scale investigation into the agency.

Marin, who helmed the SIU for two tumultuous years ending in 1998, said his office has received 20 complaints since the beginning of 2006. His probe will focus on eight of the most "compelling" cases. Hafeez Mohamed is one of them. So is the death of James Maltar.

Even when some families manage to find some of the dots, they can't figure out how the SIU connected them. Simone Wellington's 15-year-old son, Duane Christian, was shot and killed by Toronto police shortly before dawn on June 20, 2006. The SIU cleared police two months later.

By the end of the year, Wellington, her brother Roy Wellington and her lawyer Peter Rosenthal were able to meet with Cornish and the case investigator for an explanation.

Based on that meeting, the family launched a $2 million lawsuit against the province, Cornish, and then-deputy director James Ramsay – who had made the final decision while Cornish was on leave – for "the negligence of the SIU investigation."

None of these allegations have been proved in court.

SIU spokesperson Frank Phillips confirmed the agency had been named in the suit, but said since it is before the courts, it would be inappropriate to comment further. "The allegations contained in the statement of claim have not been proven and a statement of defence will be filed," he said.

The statement of claim alleges the SIU was negligent in closing its investigation before receiving the pathologist's report. The claim also alleges it did not compare Const. Rowena Edey's initial interview with the final autopsy results.

The statement of claim also alleges the SIU was negligent because its investigators did not interview Const. Steve Darnley, the officer who shot Christian, even though he volunteered his account; did not ask Edey "obvious" questions such as why she drew her firearm; allowed the officers to keep their firearms until about seven hours after Christian had been shot and did not compare Edey's account with forensic evidence.

During their Dec. 19, 2006 meeting, Cornish "claimed that the SIU's investigation was thorough," the statement alleges. According to the statement, Cornish said he "might have" chosen to interview Darnley, and did not know why Ramsay had decided against it. He dismissed proposals to reopen the probe, the statement alleges.

Simone Wellington said she had trouble understanding how Ramsay came up with his decision to say the officers were "legally justified" in shooting her son. "I know that there is no way – based on the information they gave me – there's no way that any sane, logical person would see that that makes sense," Wellington said. "I don't understand. I still don't understand."

A patchwork of police oversight models exist across the country. Some police leaders bring in another force to conduct a sensitive investigation – whether by choice or as a matter of policy. Other forces have ad hoc arrangements in which observers are brought in to keep an internal investigation in check.

The closest system to the SIU is in Alberta, where the Alberta Serious Incident Response Team was created on Jan. 1. It is headed by a Crown attorney, and has 10 current police officers acting as investigators, along with seven civilians.

In other parts of the country, there is a similar information lockdown to Ontario's, says Falconer.

In part, this is because all police are subject to legislation that prevents them from releasing information. Also, he says, "there is a tendency on police services when investigating police to be very sparse with information."

The creation of the SIU as a civilian agency was supposed to change that. "What was expected to be a major advance in transparency and accountability has fallen flat in regards to families getting information," Falconer said. "It has always been the expectation that the recommendations in the Adams Report would be fulfilled and one of the hallmark recommendations was the sharing of the SIU reports.

"There is simply no excuse for this to have not been done."

The RCMP generally does not release details of its internal investigations, either. Even so, the chairperson of its public complaints commission, Paul Kennedy, said transparency is the best way to instill public confidence when investigating police.

"There is an issue of public perception as to the partiality or impartiality in terms of these investigations and whether or not `the police officer' is being treated in a similar fashion as a member of the public would," he said in an interview.

"There is a need, I think as a matter of policy, for greater transparency saying what the decision was. If it's to prosecute, it's clear in court. If it's not to prosecute: why?

"I think that's just a reflection of the evolving public expectations ... The public cynicism about public institutions is ... higher now, it's more cynical now and for that I think we collectively have a responsibility to look at how we do business and make greater efforts to be transparent if we can."

Sitting at her dining room table in Hamilton, Karyn Graham scans through a diary she dutifully kept after her son Trevor was fatally shot by police in Nov. 2007. Trevor, a crystal meth addict, was robbing a drugstore at the time.

The latter pages of Graham's book are filled with questions she had for the SIU following its decision to clear the officer. She posed all 31 to the SIU investigators during her meeting with them.

Can I get a copy of the director's report? No. Could they prove to me this was just and definite? That's not our mandate.

Why not wait until he went outside to arrest him? Unclear. She felt her life was in danger. Does the evidence at the scene prove her life was in danger? They couldn't answer that.

"I've never had a clear explanation of what happened," she said. "They did tell me that within eight seconds of him going through to the checkout, to the time he went past the magazine stands and into the exit door, he was shot."

Graham has asked the privacy commissioner's office for all records, documents, video, audio and photographs relating to her son's death. Staff were quick to advise her some of it may not be accessible.

With files from Noor Javed

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