Saturday, February 7, 2009

Increased civilian oversight legislation brewing in Manitoba

In Manitoba, the Doer government is proposing changes to the Police Act which would provide for meaningful civilian oversight of police forces in cases involving death or serious bodily harm. One of the proposals is to create an Independent Investigation Unit, like the SIU in Ontario, which would handle these kinds of cases. The Unit would also investigate other allegations against the police where there is a public interest in having an independent investigation. Public consultations are scheduled to begin at the end of February on the proposed changes. For more information, see Police Act Consulations: Background and Issues; and, Police Act Consultations: Questionnaire.

Currently, incidents involving serious injury or death are handled in accordance with a 2004 protocol. Under this protocol, the police agency involved decides whether to investigate the incident or to call in an outside agency. That decision is made by the Chief of Police. The results of the investigation are then reviewed by an independent legal counsel appointed by Manitoba Justice to determine if criminal charges should be laid. The Provincial Police Act also has a regulation requiring a major police department not involved in the incident to review the completed investigation in cases involving a police shooting and injury or death. Finally, there is the Fatality Inquiries Act which requires an inquest whenever a person has died in police custody.

Civilian oversight for non-criminal conduct is the domain of the Law Enforcement Review Agency (LERA). To learn more about LERA, click here. Criminal conduct is investigated by the police through Police Professional Standards Units.

Posted by Professor Tanovich

1 comment:

  1. The proposed changes are a positive initiative- especially in a province where Aboriginal alienation from institutional authority and government agencies, such as police services, has eroded public confidence over the years. A stark reminder of this is the John Joseph Harper incident- an Aboriginal man that died in very suspicious circumstances. J.J Harper was unarmed when he was shot by Constable Cross. There were unexplained, unexamined and unclear circumstances within which J.J Harper died- a routine police-civilian interaction on March 8, 1988 quickly resulted in this fatal outcome. The Fatality Inquiries Act was enacted following the shortcomings of the Harper inquest.

    Herein lies the problem- and Manitoba is certainly not the sole jurisdiction with respect to the narrow interpretation of what constitutes a "death in custody." While automatic inquests follow police chases, shootings or prison deaths, the governing legislation mandating inquests into [these] deaths does not take into account police actions taken over a sustained period of time that significantly contribute to the death. Cause and manner of death; time frame within which the Coroners Office responds; and the location/manner of death, such as the Starlight Tours in the Prairie provinces, a situation where Neil Stonechild was taken to the outskirts of the city and froze to death. Finally, the discretion rests with the Chief Medical Examiner- with little or no effective appeal process for the aggrieved family.

    Cases and examples abound- The Report of the Commission of Inquiry into Matters Relating to the Death of Neil Stonechild- also outlined the shortcomings of the process. In 2003, Justice David Wright tabled his findings; he found that Neil Stonechild was in the custody of two police officers before he died and that they tried to conceal this fact when they testified at the inquiry. Most damaging, Justice Wright concluded that the police had prematurely closed the investigation, because of their suspicion that the lead detective was aware that members of the police force could have been involved in the death.

    More recently, in the Frank Paul inquiry in B.C, the Coroners Office argued that it was not a ‘death in custody:’ did not make an inquest because Mr. Paul was not immediately in the physical custody of the police officer.Vancouver Police investigators told the inquiry about their obligation to provide “neutral” reports on police-involved incidents, different from investigations of the general public.

    While establishing an independent agency modelled after the SIU model in Ontario provides greater accountability to civilian complaints, the ideal model will look more like this: Office of Director of Public Prosecutions to ensure complainants are not deterred from coming forward; establishing investigative boards to implement recommendations through greater public control of inquests; the SIU-type model would not have the investigation led by a former or current police officer and the Director's decision would ideally not be subject to veto by another external/government agency. These are just some of the recommendations I would propose.

    In addition to LERA, in August, 2003, the national Law Enforcement Aboriginal and Diversity Network (LEAD) was created. The Network was created to respond to recommendations from a number of consultations conducted over the years with communities across Canada with respect to the need for a coordinated and collaborative approach by all policing agencies to better serve Aboriginal and diverse ethnic, racial, and religious communities in Canada. The LEAD Network will also provide an infrastructure for law enforcement agencies across Canada to share best practices, establish links in the community, devise a Canadian diversity training programme, among other numerous initiatives. To learn more about LEAD, you can visit the website at:

    As for Manitoba Justice, they are arguably the most progressive and active jurisdiction (province) with respect to some of the issues LEAP is so valiantly addressing.