Tuesday, January 18, 2011

Can police officers retire to avoid investigation by the SIU?

Metcalf v Scott, an injunction filed by Peel Regional Police against the Special Investigations Unit, raises two important issues surrounding police accountability.

First, does the SIU have jurisdiction to investigate alleged incidents that took place before August of 1990 when it was created? As there is no statute of limitations on criminal offences, it is difficult to understand the basis of this argument. Indeed, according to Ian Scott, the SIU Director, it has investigated pre-1990 cases.

Second, does it have jurisdiction to conduct an investigation in cases involving retired officers? Does this mean that officers involved in a serious incident could resign or retire to avoid an independent investigation by an agency like the SIU?

The case involves sexual assault allegations. The complainant alleges that she was sexually assaulted by a Peel police officer on more than one occasion in the early 1980s when she was 15 years old and facing charges of theft and fraud. The officer in question retired in 2009. According to the news report, Peel Police originally cooperated when the complaint was filed in June but in late July, they sent a letter to SIU Director Ian Scott indicating that their own Professional Standards Bureau, or an outside police service, would be taking over the case since, in their view, the SIU had no jurisdiction.

The SIU was created to increase confidence in the police and ensure accountability when officers are alleged to have committed sexual assault or other criminal offences involving serious bodily harm or death. The seriousness of the allegation demands an independent eye to ensure no apprehension of bias. On a more human level, we as a society ask an independent body to look into whether or not there should be charges laid in such cases so that no one officer has to make that call, or face the potential stigma associated with charging one of their own with sexual assault, manslaughter or murder. The severity of these cases necessitates an independent body to ensure confidence in the police and the administration of justice. In a perfect world the SIU should be involved in all cases of alleged criminal conduct, but practical and budgetary constraints make this very unlikely.

Is an SIU investigation required when the allegation involves a former officer? Should it matter if the officer has been retired for 1, 5 or 10 years? Is there a point when concerns about bias subside? Or is it the fact that the police perceive it to be a police officer as opposed to a named person that is being investigated that requires independence in the investigation? Will exempting the SIU from these cases encourage officers to resign? What are the public policy implications?

Posted by Pamela Santora (Windsor Law I)

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