Who should watch over civilian-led investigation unit in British Columbia?

July 27, 2010
By Benjamin Goold, Special to the Sun

On June 18, British Columbia Attorney-General Mike de Jong announced that the government would establish a new civilian-led unit to investigate all police-related deaths and serious incidents across the province. Following after the Braidwood Commission's second and final report into the death of Robert Dziekanski, the announcement represents a significant shift in government policy on independent police oversight and police accountability. Yet, while the government has rightly received praise from all quarters for this historic step, a number of important questions remain unanswered.

First, it is unclear as to why the government believes it must consult in order to determine who should be made responsible for overseeing the new Independent Investigation Office (IIO). Although the Braidwood Report clearly states that the provincial Ombudsperson should have jurisdiction over any new oversight body, the A-G has instead indicated that he has yet to decide whether the IIO should answer to the Ombudsperson or to the Office of the Police Complaint Commissioner. Given that the government has accepted all of the Commission's other major recommendations about the structure and remit of the IIO, its apparent hesitation on the question of oversight is curious and worrying.

In his report, Commissioner Braidwood makes a good case for giving the Ombudsperson jurisdiction over the IIO. Looking at the experience of the Ontario Special Investigations Unit (SIU), Braidwood notes that members of the unit were found by the Ontario Ombudsman to be steeped in police culture, and that this prevented the SIU from becoming a truly civilian oversight body. As the new IIO will need to work closely with the police and may well be staffed by former police officers, there is a danger that it will likewise become increasingly aligned with the police and struggle to preserve its independence. Giving jurisdiction over the IIO to the provincial Ombudsperson -whose office is completely removed from the police -may not entirely eliminate this danger. It would, however, establish a distance that may help to ensure that the IIO maintains its civilian character and gains the public's trust.

The second major unresolved question is that of funding. Although it is still early days, it is vital that the government makes a clear commitment to providing the new IIO with the resources it needs to do its job properly. If the IIO is to help restore public confidence in the police and our criminal justice system, then it needs to be able to pursue investigations and discharge its oversight responsibilities without being constrained by penny-pinching or staff shortages. Sadly, history is littered with example of similar oversight bodies that have been established with the best of intentions but then crippled by inadequate resources. If the government is serious about addressing the problem of police oversight and accountability, it must be willing to put its money where its mouth is.

As the government begins the process of implementing the recommendations of the Braidwood Report, it is crucial that it acknowledges that the police are not like other public servants. Even junior officers are empowered to use force in the execution of their duties, and are frequently called upon to make difficult judgments as to when and to what extent that force should be used. Paradoxically, while police officers have this "monopoly on violence" they are also reliant on the trust and confidence of the public in order to do their job efficiently and effectively. Without the support of the public, even the most mundane police tasks can become extremely difficult and potentially confrontational.

Reconciling these two fundamental aspects of policing is no easy task. In order for the public to accept that the police should be able to use force, they must be confident that the police will only use this power when absolutely necessary, and that when mistakes are made they are investigated and wrongdoers are held properly accountable. Otherwise, there will always be an unhealthy tension between the police and the public, and the effectiveness of the police will be seriously undermined.

It is for this reason that the government must take the task of restoring confidence in the police extremely seriously, and ensure the IIO is both properly funded and completely independent. If we end up with an IIO that is a watered down or hamstrung version of the body envisaged by the Braidwood Report, we will have failed to learn the lessons of Robert Dziekanski's tragic death.

Benjamin Goold is a professor at the University of British Columbia's faculty of law, and the author of a number of books on policing, surveillance, and the relationship between security and human rights.