Investigation: Above the Law

ABOVE THE LAW - A SERIES PROBING POLICE CONDUCT IN ONTARIO
A Toronto Star investigation has found lack of results and little accountability from the $7 million a year Special Investigations Unit that probes police accused of injuring or killing civilians.

Tomorrow: The shooting death of Douglas Minty and the police-friendly investigation that followed.

Seems the more things change, the more they stay the same. See also the September 2008 report released by the Ontario Ombudsman's office: Oversight Unseen: Investigation into the Special Investigations Unit’s operational effectiveness and credibility

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.

Call for police watchdogs growing across Canada

July 27, 2010
Shannon Kari, National Post

Standing on the front steps of the sandstone facade of the Osgoode Hall courthouse in downtown Toronto, Evelyn Minty grieved openly about the loss of her son, Douglas, who was fatally shot by an Ontario Provincial Police officer last year.

"I want answers. I want to know what happened with my son," she said outside a court hearing this spring. "I don't want mothers to go through what I have gone through. It's been a year. I can't forget it. I can't sleep nights."

Her developmentally disabled 59-year-old son had a knife and was allegedly approaching an officer in the small community of Elmvale, about 120 kilometres northwest of Toronto, when he was killed.

The Special Investigations Unit (SIU), the civilian agency in Ontario that probes incidents of serious harm or death involving police, ultimately decided not to charge the officers involved. It was not an unexpected decision: No criminal charges have been laid against a police officer in Ontario in any of the 45 fatal shootings of civilians over the past decade.

Frustrated by the lack of information about the case, the Minty family and relatives of Levi Schaeffer, another man fatally shot last year by police, went to Ontario Superior Court. They want the court to order an end to practices such as officers consulting with lawyers before drafting their notes in these types of cases. What is unusual is that the families have the support of the SIU. Its director, Ian Scott, agreed that the vetting of notes and the potential for collusion when several officers retain the same lawyer are preventing the agency from conducting independent and timely investigations.

It is the first time in the two decades since the SIU was created that its director has complained publicly about impediments to investigating police.

Standing on the other side of the court aisle were lawyers representing every major police organization in Ontario.

"We have a pretty good model," said Ron Bain, executive director of the Ontario Association of Chiefs of Police, in an interview. "The SIU has evolved over time to be more operationally sound. I am not hearing anything out of the Atttorney-General's office that the SIU needs changing."

Resisting change, however, may be a futile pursuit. The call for better police oversight is growing.

The Alberta and Manitoba governments are moving to greater civilian oversight of incidents of serious injury or death to a civilian involving police. The Toronto Police Services Board has agreed to a review of the actions that led to the arrest of hundreds of people at the G20 summit in June.

Perhaps most prominent are the recommendations of Thomas Braidwood, who presided over the inquiry into the death of Robert Dziekanski, who died after being Tasered at Vancouver International Airport in 2007. He is calling for the creation of an oversight agency with the broadest powers in the country. "The debate is no longer whether British Columbians should have a civilian-based investigative body, but what it should look like," wrote the retired B.C. Court of Appeal judge in his report released last month.

One recommendation, which by Mr. Braidwood acknowledges is potentially controversial, is that the new agency would eventually be made up only of civilian investigators. This is not the case in Ontario, where most SIU investigators are retired officers.

This is not something police in B.C. would necessarily oppose. "Our concern is only that the investigators have the proper training and expertise," said Clayton Pecknold, president of the B.C. Association of Chiefs of Police.

The association first said last fall that it supported a civilian oversight agency in B.C. "These investigations take up a lot of resources. We are happy to have an agency take this one on," said Mr. Pecknold, who also serves as deputy chief constable of the Central Saanich Police Service.

"While we have confidence in our past investigations, we need to deal with public perception. Let's get this up and running."

The B.C. Civil Liberties Association is also urging the province to move quickly to implement the Braidwood recommendations. "I am very optimistic. This is what the public wants," said Robert Holmes, president of the civil liberties group. "Oversight is not about criminal charges [against police], it is about public confidence."

For its part, the B.C. government indicated the new oversight agency would be up and running within a year. Attorney-General Michael de Jong declined a request for an interview.

Julian Falconer, who represents the Minty and Schaeffer families, said better oversight will increase public confidence in police. "It does police services no good to justify or conceal bad policing. Good police officers should not be left out of the equation of those who benefit from effective oversight," Mr. Falconer said.

In Ontario, there may also be political obstacles for the SIU, as well as the relatives of Mr. Minty and Mr. Schaeffer.

Superior Court Justice Wailan Low ruled recently that it was not for the courts to decide on whether the vetting of notes and one lawyer representing multiple officers violate Police Act regulations. While two provincial reports recommended an end to the practices, "whether the government adopts the suggestions in the reports and enacts laws to implement them is within its province alone," she concluded.

Lacking confidence that the Ontario government will act on those two reports, the families recently filed an appeal of Judge Low's ruling. That appeal is unlikely to be heard until the fall.

---------

SIU FACTS

Often described in other provinces as the "gold standard" for civilian oversight of police panels, the Special Investigations Unit in Ontario, however, has been beset by controversy since it was created in 1990. Some facts:

-No fewer than seven government-commissioned reports have examined policing, oversight and the complaint process since the SIU was created.

-Its annual budget of $6.8-million (according to its 2008 annual report, the most recent available) is less than half that of the Police Ombudsman of Northern Ireland, even though Ontario has seven times the population.

-Between 2003 and 2008, criminal charges were laid against police in less than 2% of the more than 1,000 cases investigated.

-A 2008 report by Ontario Ombudsman Andre Marin, himself a former SIU director, suggested it was still a "fledgling" organization that was "administratively and technically challenged."

Police shouldn't be investigating themselves: Ontario ombudsman

January 14, 2009
The Globe and Mail

WINNIPEG — All provinces should follow the lead of Ontario and Manitoba and establish a civilian unit to hold police to account or risk more internal investigations marred by favouritism, Ontario's ombudsman said Wednesday.

Andre Marin just completed an investigation into Ontario's special investigations unit and is advising Manitoba on the creation of a similar body. He said police show bias when they investigate one of their own and Canadians deserve better.

“Police should not be investigating other police when there is serious injury or death,” said Mr. Marin, who once headed Ontario's special investigations unit. “When they do so, inevitably the investigations will suffer from favouritism and bring into question the results of those investigations. “The public will never be satisfied.”

Alberta will only allow civilians to observe investigations involving police while officers remain “in the driver's seat,” Mr. Marin said. Despite questionable investigations into police shootings in Quebec and British Columbia, both provinces defend the status quo, he added.

Police in Manitoba have come under fire for their botched investigation into a fatal traffic collision involving an off-duty Winnipeg constable. A public inquiry was called after Crystal Taman died in February 2005 when her car was rear-ended by the officer at a red light. Derek Harvey-Zenk, who had been drinking that night, pleaded guilty to dangerous driving causing death and was given two years of house arrest. An inquiry concluded the investigation into Ms. Taman's death was “riddled with incompetence” and recommended Manitoba set up an independent body to conduct similar probes into police conduct.

Police who investigate themselves often give officers months before asking for a statement because they “need time” to recover from the trauma, Mr. Marin said. The same courtesy is not extended to civilian witnesses, who are immediately segregated and questioned.

He pointed to the passengers on board a Greyhound bus on which a young man was decapitated last summer.

Although police say civilians aren't equipped with the necessary investigation skills, Marin said that is a self-serving argument. It doesn't take a genius — or a police officer — to probe alleged wrongdoing by police, he said.

“You don't have a mass murderer on the loose,” Mr. Marin said. “It's a question of whether there was legal justification for causing serious injury or death.”

Report found no bias, SIU boss says

October 28, 2008
Robyn Doolittle, Toronto Star

The newly minted boss of the province's Special Investigations Unit says after examining a recent report into the agency, he does not believe the SIU is biased towards police.

Ian Scott points to a section of the Ontario Ombudsman's probe of the SIU.

"Quote: 'During our investigation, we were unable to find any objective evidence that any individual case had been tainted by improper motives,' " he said.

"The way I read it is that (Ombudsman André Marin is) saying when you really drill down and look at the evidence, look at the briefs, there's nothing that he can point to that says there's any pro-police bias."

But, contacted last night, Marin says Scott is reading it wrong. The purpose of the probe was not to reinvestigate closed cases, he said.

"As such, we were not looking for evidence of improper motives or police bias in the ultimate decision to charge or not charge the police. Nor did we find any," said Marin.

"What we did find, however, were investigations conducted with a pro-police bias. The report is abundant with examples. ... The SIU is not the impartial investigator the law mandates it to be, but in a sense, bleeds blue with pro-police bias. That needs to be fixed by the new director."

Among other charges, Marin accused the agency of investigating its cases through "blue-coloured glasses," allowing police to control the probe, and rarely interviewing officers within the mandated 24 hours following an incident.

Since its release, at least one family has contacted Scott, requesting he take a second look at a ruling. Others are planning to do the same in the coming weeks.

Rob Maltar, whose brother James was shot in police custody three years ago, spoke with Scott last week. After an 11-month probe, the SIU found James had shot himself with an officer's gun. Maltar and his family have never believed it.

Scott told him he'd consider reopening any closed case if new "material" evidence was uncovered.

Two weeks ago, the former Crown attorney began his five-year term as director of the SIU, the civilian agency tasked with investigating all cases of serious injury, death, or sexual assault involving police in Ontario.

"I doubt very much when I'm here we're going to see any cold cases (but) if it's new material evidence, then yes," Scott said in an interview with the Star yesterday at SIU headquarters in Mississauga.

For the Maltars, time is running out. The inquest into his brother's death is scheduled for January. Once it begins, there's no chance the case will be re-examined.

"I personally think it's a cowardice way to handle a situation. Telling the family members that they have to come up with evidence for them to reopen the case, meanwhile, they have all the evidence," said Maltar.

Yesterday, sitting in a board room crowded by the SIU's past – dozens of case boxes marked with victims' names – Scott noted that the focus of the Ombudsman's report was to look forward, not backward.

None of Marin's 46 recommendations suggest the SIU should reopen cases, Scott pointed out.

But Marin did highlight problems with response times and delays interviewing witness officers.

"Those are both areas of concern for me," Scott said.

Both will be looked at by the SIU's ombudsman's report response team, an initiative created by outgoing director James Cornish.

Over the next six months, the team will work to address each of the ombudsman's recommendations and prepare a report for Marin regarding progress or an explanation of why changes haven't occurred.

"I think the civilian oversight of policing is an important function of a democratic society," he said. "And what I'm hoping to do here is to foster confidence in civilian oversight of policing and I'm hoping to do that by independent investigators, thorough investigations and impartial investigations."

Oversight Unseen

A report on the investigation by the Ontario Ombudsman into the Ontario Special Investigations Unit’s operational effectiveness and credibility.

Canadian man suffers heart attack after taser jolt

October 21, 2007
KATHY RUMLESKI, London Free Press

A 34-year-old London (Ontario) man is in hospital recovering from a heart attack after he was tasered by London police. As the province's Special Investigations Unit (SIU) looks into the incident, the man's family is calling for a ban of the controversial stun guns. Last week, Amnesty International Canada also asked that their use be suspended until the 18 deaths associated with tasers in Canada since 2001 can be explained.

In the last month alone, three men have died in Canada after being tasered. Amnesty spokesperson John Tackaberry expressed alarm about the London incident when contacted yesterday. "It's been a very disturbing week," he said. "Police officers seem to be convinced that they're (tasers) not lethal, when they certainly can be."

Details of the London incident are sketchy, but a member of the man's family -- who requested anonymity because of the provincial probe -- said the man had a heart attack during the encounter with police. The man's mother-in-law said he was at a friend's home Monday when he was fooling around and "got knocked out." An ambulance was called and when the man regained consciousness and saw the police, he "freaked out," she said. "They tasered him twice. After the heart attack, his kidneys shut down," the woman said.

The woman her son-in-law is recovering well and is expected to soon be moved from intensive care into the cardiac care unit. London police confirmed the SIU is investigating but wouldn't comment on the case. Const. Dan O'Reilly said only that senior officials and emergency response unit personnel can carry tasers. "There is protocol that is followed," he said.

The SIU could not be reached yesterday. Taser guns use two barbed darts to deliver a jolt of up to 50,000 volts. They are intended to temporarily paralyse someone by causing muscles to contract. "We'd like them to be banned and not to be used," said the injured London man's mother-in-law.

Amnesty's Tackaberry said a number of incidents indicate there may be a connection between lethal taser use and people in poor health or those intoxicated or agitated who are then struck. "It's crucial that there be an understanding of what the interaction of a taser and these conditions is."

The SIU looks into all police actions resulting in civilian injury or death. It's under the microscope of the province's ombudsman, who will soon release a report on the agency's handling of cases and treatment of victims.

Ombudsman to probe SIU

June 7, 2007
CBC News

I was very disappointed to learn that Ontario's Special Investigations Unit has itself become the subject of an investigation into allegations of incompetence and bias. According to its website, the SIU is committed to promoting and maintaining community confidence in Ontario’s police services through highly professional and independent investigations. Many, including my family, Cameron Ward and Vancouver's Pivot Legal Society, have upheld this Ontario "bulwark of democracy" model as a replacement for British Columbia's system of police investigating police.

"Ontario's ombudsman will investigate allegations the province's agency that probes civilian deaths and serious injuries involving police was incompetent and biased. André Marin said there has been a "troubling increase" in the number of complaints to the ombudsman's office about the Special Investigations Unit, an independent civilian agency that probes police actions. "The SIU is a bulwark of democracy in Ontario," said Andre Marin. "It's where the buck stops in police accountability when there is death or serious injury. Given the nature of these complaints, I believe it warrants further investigation.""

In response, James Cornish, Director of the SIU, said "Ontarians have every reason to expect that the SIU operates with complete integrity and meets excellent investigative standards. As a world leader in civilian oversight of police, the SIU is committed to carrying out thorough and unbiased investigations to ensure police accountability, thus safeguarding public confidence in our police. I have confidence in the professionalism of the men and women of this Unit and that the Ombudsman will conduct an impartial and professional investigation. We intend to cooperate and look forward to receiving his report."

A newsletter I receive from the Toronto Police Accountability Coalition had this to say: "Members of TPAC met recently with Ombudsman staff to discuss the SIU. TPAC's experience is that SIU seems to be part of the policing hierarchy rather than representing an outside citizen-based voice on policing matters. The SIU provides the appearance of accountability without the substance, and functions as another line of defense for the police. TPAC fears that the focus of the investigation is narrow when what is needed is something which begins to tackle the question of police accountability to the community at large. Without the presence of a general sense of police accountability, it is difficult for any police complaints mechanism to function well."

The report is expected to be available in November.