Sunday, March 8, 2009

BC government introduces legislation to amend police complaints process

Last week, the British Columbia Legislature introduced Bill 6 -- Police (Misconduct, Complaints, Investigations, Discipline and Proceedings) Amendment Act, 2009. Solicitor-General John van Dongen stated that the legislation is intended to give effect to the recommendations of Justice Josiah Wood who prepared a 2007 report on the BC complaints process. Some of the changes include:

"— Making it mandatory for external police forces to investigate any in-custody death or serious injury.

— Empowering the complaints commissioner, not the police force facing allegations, to decide how to proceed with a complaint.

— Allowing the commissioner to track all investigations in real time.

— Compelling police officers to provide statements within five days of a request.

— Increasing the maximum-allowable suspension for misconduct to 30 days from five."

Posted by Professor Tanovich


  1. Bill 6 does not go far enough

    While the new police complaints process the British Columbia has introduced is an improvement from the existing system, it is still permeated with the fundamental problem prevalent in most police complaints processes: police investigating police. Addressing the problems of police investigations of other police is especially important given the recent focus on the custodial deaths of civilians. We have seen this problem with respect to the Ian Bush and Robert Dzienkanski custody deaths, albeit these involved the RCMP. While this Bill 6 applies to the province’s 11 municipal police forces, it does not apply to the RCMP, which has 1/3 of all its police officers on contract solely in the province of BC.

    Introducing the legislation, Solicitor-General John van Dongen said that this is “legislation that focuses on strengthening the broad independent oversight of the office of the police complaints commissioner.” The changes made to the complaints process still fall far short of the civilian oversight model, the Special Investigations Unit (SIU) that is currently in place in Ontario. Indeed, section 112 (5) states that the discipline authority’s decision under s. 112 (4) “is not open to question or review by a court on any ground” and is final and conclusive with the exception of the commissioner appointing a retired judge (s. 117). Further, section 114 stipulates that the officer under investigation may seek further investigation of their file through the disciplinary authority. After the officer’s request for this review, section 116 (5) stipulates that the disciplinary authority’s decision is “is not open to question or review by a court on any ground” and is final and conclusive with the exception of the commissioner appointing a retired judge. Ultimately the disciplinary authority, which in many cases will be the police force of the officer under investigation, has a lot of discretion in disciplining their member.

    As the Braidwood Inquiry has illustrated, there remain problems with evidence gathering when police investigate their colleagues, and this can happen irrespective of police organization. The mandatory requirement of video surveillance in police-civilian interactions, as some have suggested, see is one way to deter lack of evidence. The need for more effective footage of video surveillance is also needed in holding cells, see, who have made allegations against police misconduct do not see the new overhaul to the complains process as comprehensive and going far enough in addressing the lack of partiality when police continue to investigate themselves, see,

    Further, section 84 (1) of the legislation may limit the participation and involvement of third-party advocacy groups, such as the British Columbia Civil Liberties Association (BCCLA) during a complaint; thereby blocking effective public scrutiny and transparency over the process. Another impediment to public transparency is that under section181, documents relating to investigations will continue to be exempt from Freedom of Information requests. This makes it more difficult for third-party groups to serve as an audit function to monitor and review what, if any, corrective action is undertaken and its overall effectiveness in deterring future misconduct by the police member.

    If the Commissioner feels that the member or former member committed an offence, the Commissioner has to report to the BC Crown, who has the ultimate authority as to whether to advance criminal charges against the police officer. And of course, the decision of the Crown cannot be subject to judicial review. However, as the Braidwood Inquiry has been unfolding, many people have questioned the Crown's decision to not lay criminal charges. Thus, this shows the significance of holding public authorities accountable, even the Crown, who seeks to work in the public interest. Crown prosecutors should be held accountable for their decisions by appearing as witnesses and being subject to the art of cross-examination. This was precisely the issue the BC Supreme Court was presented with as a result of the Frank Paul inquiry, where Commissioner Davies requested evidence from prosecutors. The court held that Crown prosecutors should be subject to appearing in court as witnesses like everyone else (Criminal Justice Branch of Attorney General v. William H. Davies, Commissioner). However, this decision was appealed by the BC Criminal Justice Branch and is now on reserve with the BC Court of Appeal.

    The appearance of impropriety between the police and the Crown can erode public trust in the judicial system or to put the administration of justice into disrepute. Former B.C. police complaints commissioner Don Morrison, once a top Crown prosecutor, was himself accused at one time of being too close to the cops, see Now a private lawyer, Morrison now takes cases on behalf of people who have complaints about police, stressing that "honesty and integrity" are critical to police work. That's why Morrison makes the argument that police managers need to be given the power to require their officers to take polygraph tests. Perhaps what may assist investigators is Morrison’s recommendation that the police complaints commissioner should have the authority to order lie-detector tests.

    This is why it is time for Canada to have in place an Office of Public Prosecutions that will truly ensure partiality and independence. The United Kingdom, see,, has already moved in this direction, which has in place an Office of Police Prosecutions with the authority to advance charges against both police and civilians. Further, the 1994 Public Prosecutions Act created a Committee for Public Prosecutions, which provides partial, independent advice on prosecutorial decision-making system and operations. Perhaps most significant with respect to its monitoring function of prosecutorial misconduct, the Director has the authority to advise the Attorney General of the removal of any Crown Attorney.

    Most significant with respect to monitoring racial profiling practices is section 177(2)(e), which gives the police commissioner the authority to establish guidelines for receiving public complaints and include race-based statistics. The implication is that the police force can be required to implement a data collection system that closely monitors police-related incidents involving racialized individuals. They may be required to “compile statistical information in respect of records referred to in paragraph (d), including, without limitation, (i) demographical information in respect of complainants, if available, (ii) information respecting the number and frequency of complaints and investigations or of different types or classes of complaints and investigations, and the outcome or resolution of them, and (iii) any trends in relation to information compiled.” Public disclosure of the compilation of statistics, contained in these reports, may also be required of the police force. Section 180 also requires any disciplinary records or complaints against the member to be filed with the Commissioner.

    On the heels of the numerous civilian allegations that have plagued BC in recent years with respect to both the RCMP and municipal police, legislation has been introduced that may temporarily allay the fears of British Columbians. However, it is a relatively small step forward in what is a monumental challenge ahead for all police forces in British Columbia. In a province that contracts much of its policing to the RCMP (with 1/3 of all members of the RCMP in BC), there will continue to be inefficiencies in police investigations and the difficulty of changing perceptions through this bill. At the end of the day, however well intentioned, the changes are meaningless for 75% of the British Columbian population who continues to be policed by the RCMP.

  2. Ombudsman André Marin and SORT Director Gareth Jones gave evidence at the Frank Paul inquiry in B.C. about how investigations of fatal incidents involving police should be conducted. The full transcript is here: