Improving Transparency and Accountability

With Project Accountability, acting Chief Al Frederick has demonstrated that he is prepared to respond to the public demands for accountability and transparency following allegations of police misconduct including the vicious beating of a local doctor and attempts to cover it up.

The blueprint for change and its 27 recommendations should lead to significant change in both culture and procedure. In particular, the adoption of the more liberal definition of "serious harm" which triggers the duty to report incidents to the SIU, enhanced training, new conflict of interest rules, organizational review and a comprehensive external policy review that will be conducted by the OIPRD are all salutary measures. The acting chief has shown strong leadership and should be considered as a viable candidate to be the next chief.

However, other actors in the justice system such as judges, Crown attorneys and defence lawyers also play an important role and must respond appropriately to police misconduct.

If, for example, the police believe that Crown attorneys will not report their misconduct or that judges will not make findings of misconduct or denounce it through appropriate sentences, any efforts by police administration will be thwarted.

Any blueprint for change must include these key actors.

It must also be acknowledged that there are human rights issues facing the WPS that need to be remedied. For example, unconstitutional strip search practices, allegations of discrimination, and the recruitment, retention and promotion of female, racialized and lesbian, gay, bisexual and transgender officers.

Former chief Gary Smith was a leader in his commitment to changing the human rights culture of the WPS. He partnered with many organizations including the Ontario Human Rights Commission, Windsor Law's LEAP (Law Enforcement Accountability Project) and EGALE (Equality for Gays and Lesbians Everywhere) to bring about change. He faced resistance to these initiatives and there is likely a change-resistant faction happy to see him gone.

So in addition to Project Accountability, here are some additional ideas that could form part of the blueprint for greater accountability and transparency:

* Commit to the human rights audit by the Ontario Human Rights Commission of practices and procedures initiated by former chief Smith, and implement the commission recommendations.

* Investigate the feasibility of a policy requiring all officers on duty and in the field (including officers employed by private organizations like bars) to wear a camera installed on their uniform. Technology now serves as the greatest engine of accountability as we saw with both the David Van Buskirk and Brad Snyder cases. The camera will protect officers from unwarranted accusations as well as to capture misconduct. It will also protect officers from abuse and violence as individuals will know that they are being videotaped. The head of the Ottawa Police Association has recently recommended that Ottawa implement a similar measure.

* Request that a Crown attor-ney be assigned to vet all cases involving police-initiated charges such as assault police, resist arrest, cause disturbance arising out of interactions with accused. The chief should be notified of any case where the Crown believes that the officer has used these kinds of offences to shield their misconduct and the charges should be withdrawn.

* Require the Crown Attorney's Office to notify the chief of any case where there is a judicial determination that an officer has engaged in misconduct or has provided false evidence. The chief should be required to notify the Police Services Board of all such communications from the Crown and how the matter has been dealt with. The Toronto Police Services Board is considering a similar policy.

And finally, the Windsor Police Services Board should consider moving its meetings out of the police station to more publicly accessible and friendly locations. Members of the public are much more likely to attend in these circumstances. And to gauge the concerns of the public and effectiveness of any reforms initiated, it should invite yearly deputations from community groups, experts and other interested individuals to provide information about issues surrounding the delivery of services.

Windsorites are proud of their police service. It has a strong record in crime reduction, building community relationships and moving the service forward to meet the challenges it faces.

With Project Accountability and consideration of these recommendations, it should not be long until public trust is restored.

David M. Tanovich is a professor of law at the University of Windsor and academic director of the Law Enforcement Accountability Project (LEAP).

 

© Copyright (c) The Windsor Star

New Leadership, New Initiatives for Windsor Police

On December 23, 2011, Windsor Police Chief Gary Smith announced his retirement from the force.  His decision to retire came amid numerous allegations of brutality and misconduct by Windsor police officers, public outcry over accountability for the actions of police officers, and heavy criticism of Smith for his handling of recent allegations of police misconduct. As of the date of Smith’s retirement, the Windsor Police Service was facing $72-million in lawsuits, with thirty cases alleging police brutality. Since 2006, mainly through out of court settlements, Windsor Police has paid over $820,000 of taxpayers’ money to victims for malicious prosecution, wrongful arrest, and assault lawsuits.  Public discontent with the actions of many officers and the Service’s handling of allegations of police misconduct has been palpable. 

Several high profile cases, including a $14.2-million lawsuit against the Windsor Police Service by Dr. Tyceer Abouhassan, have led to a shaken public confidence in the city’s police.  Dr. Abouhassan alleges he suffered a beating at the hands of Det. David Van Buskirk, and was subsequently charged with assault in what his lawyer has called a cover-up by police to protect an officer.  Det. Kent McMillan is charged with discreditable conduct for failing to conduct a fair and impartial investigation of the incident involving Dr. Abouhassan and is also charged with deceit for filing a false report in the case.  Regarding the public’s outrage at the Windsor Police Service’s recent alleged action, lawyer Andrew McKay, who currently represents Det. Van Buskirk, contends that police are merely visible targets for these allegations and that misconduct is found in every field of work. 

This view that Windsor Police are merely more exposed in the public eye than others is not widely shared. Windsor Mayor Eddie Francis has joined public discontent, and has stated that the frequency in which Windsor Police vehicles are involved in crashes has caught his attention.  In an interview with the Windsor Star, Windsor Law Professor David Tanovich stated that even judges are increasingly speaking out against police officers. 

           

Since Smith’s resignation, acting police Chief Al Frederick appears to be taking steps toward the right direction. Since his role as acting Chief, he has been outspoken over the need for change within the Windsor Police Service.  In a news conference, he bluntly stated that in terms of transparency and accountability for Windsor Police, the “status quo is not the path forward for the Windsor Police Service”.  He went on to say the Windsor Police Service will no longer “thumb its nose” at the Special Investigations Unit (SIU), amid recent accusations by Ontario Ombudsman Andre Marin that the Windsor Police Service has both delayed and failed to report numerous incidents involving police misconduct.  Frederick has additionally responded to four SIU letter’s originally ignored by former Chief Gary Smith, but stated that Windsor Police Service’s failure to report certain incidents were a result of a difference in the Police Service’s definition of “serious injury” from the SIU. 

Frederick has furthermore introduced Project Accountability, a 27-measure initiative including enhanced police training, new rules regarding conflict of interests, organizational and external policy reviews conducted by the Office of the Independent Police Review Director, and a more liberal definition of the term “serious harm”.  The initiative also includes plans to move the professional standards branch out of Windsor Police Headquarters.  In an interview, Frederick stated that moving the branch, which is in charge of investigating public complaints, was made in an effort to reduce the public perception of intimidation of those reporting complaints.

Frederick’s promises of change have so far appeared genuine, and as he stated, many of the 27 measures have already been implemented. It will be interesting to see whether these steps in the right direction lead to the kind of transparent and accountable police force the public desires.  But, as Professor Tanovich noted in a recent op ed in the Windsor Star, other actors in the justice system, including judges, Crown attorneys and defence lawyers, also play a crucial role in properly addressing police transparency and accountability, and should thus be considered in any plans to bring about change.

Posted by Benjamin Dillon (Windsor Law I)

Penning an injustice for those who seek to hold police accountable

On September 27, 2010, the Ontario Court of Appeal ruled in Penner v. Niagara (Police Services Board) that Wayne Penner’s civil claim for damages against two police officers was barred by the application of the issue estoppel branch of the res judicata doctrine as the issue had already been litigated in the context of a police disciplinary hearing.  This 2010 decision from the Court of Appeal seemingly brought an end to Wayne Penner’s attempt to hold two police officers accountable for their alleged misconduct that occurred in 2003 at the Ontario Court of Justice in St. Catherines. 

The Facts

On January 28, 2003, Wayne Penner was sitting in the body of the courtroom where his wife was defending herself against a traffic charge that she faced pursuant to the Highway Traffic Act.  Officer Parker was on the stand being cross-examined by Mr. Penner’s wife.  During the course of the cross-examination, Mr. Penner was alleged to be making ‘chirping’ noises which weren’t loud enough to be caught on the court recording devices, but were nonetheless disturbing to the Prosecutor and Court Officer. Upon the completion of his evidence, Officer Parker sat in the vicinity of Wayne and Officer Koscinski, who was in Court on an unrelated matter. At that point, Officer Parker turned to Wayne and told him that he could or would be arrested.  Mr. Penner became upset and began complaining loudly that Officer Parker had threatened to arrest him (and this was caught on the court recording device).  The Prosecutor asked the presiding Justice of the Peace to consider removing Mr. Penner from the courtroom.  The Justice of the Peace never made this order. 

Shortly thereafter, while Mr. Penner’s wife was being sworn in, the Court Officer ordered Mr. Penner out of the courtroom.  Officer Parker immediately rose and put his hands on Mr. Penner, directing him to get out.  Mr. Penner pulled away.  At this point Officer Parker, with the aid of Officer Koscinski, placed Mr. Penner under arrest.  They dragged Mr. Penner out of the courtroom and delivered empty hand and knee strikes to subdue him. Of note is that the presiding Justice of the Peace fled the Courtroom and asked the clerk of the court to call 9-1-1. 

Mr. Penner was taken to the station where he was booked, strip-searched and charged with causing a disturbance, breach of probation, and resisting arrest.  Upon being taken to the hospital, Mr. Penner was observed to be unsteady on his feet.  He had a black eye, scrapes, sore ribs, a sore elbow, a bruised knee, and a sore wrist.  Mr. Penner’s wife took photographs of the injuries.  All charges against Mr. Penner were subsequently withdrawn by the Crown and Mr. Penner pursued a public complaint against the two officers pursuant to the former Part V of the Police Services Act.

The Disciplinary Proceedings

            Under the former Part V procedures which have since been altered by the establishment of the Office of the Independent Police Review Director (“OIPRD”), the Chief of Police screened the complaint and determined that the matter warranted proceeding to a disciplinary hearing.  The hearing was presided over by a Hearing Officer who is appointed by the Chief and who in this case, as in most cases, was a retired Police Superintendant.  The police prosecutor appointed by the Chief in this case, as in most cases, was a senior officer from the same police force of equal or higher rank than the officers charged. Officers Parker and Koscinski were charged with two offences pursuant to the Police Services Act: 1) without good and sufficient reason making an unlawful or unnecessary arrest, and 2) using unnecessary force against a prisoner.  

            The disciplinary hearing took place over several days during which time 13 witnesses were called and 32 exhibits were filed. The key issue that the Hearing Officer needed to decide was whether the courtroom was a ‘public place’ such that officers had authority to arrest a citizen for causing a public disturbance in a courtroom that was being presided over by a Justice of the Peace.  A legal opinion was sought by the Hearing Officer on the issue.  On the basis of this opinion, the Hearing Officer concluded that the courtroom was a public place and that the officers had the right to arrest a citizen for causing a public disturbance.  Since they had lawful authority for the arrest and Mr. Penner was actively resisting, and since the officers used appropriate use of force techniques, the officers were cleared of any wrongdoing. 

The Disciplinary Appeal

            Unsatisfied with the result, Mr. Penner appealed, as of right, to the Ontario Civilian Police Commission (“OCPC”).  The Commission reversed the Hearing Officer’s decision and imposed discipline of four days lost pay for Officer Parker and two days lost pay for Officer Koscinski.  The Commission did not find any authority under the Police Services Act to order the officers to make a public apology to Mr. Penner, as he had requested in his ‘submissions’ on the appropriate penalty.  

In reaching this result, the Commission held that the Hearing Officer erred in failing to decide whether the powers of the Justice of the Peace in maintaining order within their courtroom trumped the powers of the police officers to affect an arrest for causing a public disturbance within the courtroom. After consulting the relevant authorities, the Commission concluded that the officers do have authority to arrest for causing a public disturbance in a courtroom but “absent either a clear and present threat or direction by the Court, we believe that such authority is superseded by the court’s power to deal with disruptive behaviour falling under the broad definition of contempt.” In reaching this conclusion, the Commission made reference to the fact that the police officers did not give Mr. Penner an opportunity to leave the courtroom voluntarily upon being instructed to do so by the Court Officer before they laid their hands on him. Accordingly, the Hearing Officer’s decision was reversed and the officers were found guilty of misconduct.

The Aftermath

            It is at this point that things become troubling on many different levels.  The officers applied for judicial review of the Commission’s decision.  The Divisional Court held that the Commission erred by casting doubt on some of the findings of fact made by the Hearing Officer and by requiring the Hearing Officer to resolve the issue of the powers of the Justice of the Peace to control the proceedings.  As a result, the court quashed the decision of the Commission and restored the decision of the Hearing Officer.

            Mr. Penner was not represented at the disciplinary hearing, the OCPC appeal, or the judicial review application, nor did it appear that he made any meaningful submissions at any stage of the proceedings, and yet the Superior Court decided to order costs against him in the amount of $7,500. How can the court justify ordering costs against an unrepresented party for a decision reached by the OCPC on their own review of the record? As he was unable to hold the officers accountable through the police complaints process under the Police Services Act, Mr. Penner attempted to hold them accountable through a civil action for damages.  This, as it turned out, was a costly decision.

The Civil Action

            Mr. Penner filed a civil claim against the two officers as well as the Niagara Regional Police Services Board alleging unlawful arrest, unnecessary use of force during and after the arrest, false imprisonment, and malicious prosecution.  All of his claims were struck on the basis of issue estoppel at the Divisional Court in an unreported judgment.  The defendants were awarded costs in the amount of $10,353.  Mr. Penner appealed this decision to the Court of Appeal where his appeal was dismissed.

            In the course of dismissing his appeal, the Court of Appeal applied the three-prong test for issue estoppel.  For the test to be met, the respondent police officers had to show that: 1. The same question was decided in the disciplinary proceedings; 2. The judicial decision said to create the estoppel is final (which Mr. Penner conceded); and, 3. The parties, or their privies, to the judicial decision are the same persons as the parties, or their privies, to the proceedings in which the estoppel is raised.

Even if all three prongs were met, the Court still had a residual discretion to not apply it if to do so would be unfair or work an injustice. 

The Court of Appeal Decision

            The first step of the test was met because the questions of lawfulness of the arrest and unnecessary use of force were already decided adversely to Mr. Penner at the disciplinary hearing.  That decision was final as Mr. Penner did not appeal the judicial review decision by the Divisional Court (although he unsuccessfully sought leave to appeal the costs order).  So the only real issue that the Court of Appeal had to decide was whether the parties were the same, and if they were, whether applying issue estoppel to bar the claim would be unfair or work an injustice.  The Court concluded that the parties were the same and the bar would not work an injustice.

            Leaving aside the application of the issue estoppel, there was an element of unfairness at play here. Mr. Penner won his appeal before the OCPC. The officers decided to judicially review this decision and were successful.  At the end of that proceeding, Mr. Penner was stuck with a $7,500 bill. Undeterred by the financial burden in his quest for some form of police accountability and justice, Mr. Penner finally decided to hire counsel to represent him in a civil claim against the officers and NRPS.  He lost again in the Court of Appeal and now has to pay the officers’ legal fees of $17, 855 for not being successful on the motion or at the Court of Appeal. 

            While the Court’s analysis of the ‘same parties’ branch of the test is troubling, it is nonetheless an accurate analysis of the statutory context as applied to the facts of the case.  Mr. Penner had party status at the disciplinary hearing by operation of (then) s.69(3) of the Police Services Act, and he took advantage of that status as he “testified, cross-examined witnesses and made submissions on the legal issues”.  How effective he was at any of these things would involve speculation as the record of the disciplinary hearing is not publicly available.  What’s troubling is that the Court says that while he could have retained counsel, he chose not to.  This ignores the economic realities of retaining counsel, especially in matters where your liberty is not at stake and where you have no prospects of financial gain.

            Having established that all of the branches of issue estoppel have been met, the Court then turned to considering whether they should exercise their residual discretion to not apply the doctrine if it would cause an unfairness or injustice.  The court outlined two factors which favoured Mr. Penner, and four factors which favoured not exercising this discretion.  The court acknowledged that it’s not a simple mathematical calculation at this stage, but a qualitative assessment of the relevant considerations.  One of the relevant considerations that the court identified – the different purposes of the two proceedings - ought to have been determinative.

            The court accepted that the disciplinary hearing bears resemblance to an employer/employee grievance.  This is an apt observation, especially in light of the fact that the Chief of Police is the one who brings the matter forward and assigns a Hearing Officer and a prosecutor for the proceeding.  Furthermore, the remedial options available in the event of a misconduct finding are limited to affecting the officers’ employment with the police service.  Had the Professional Standards branch of the police force discovered the alleged misconduct through their own investigation instead of being alerted to the issue by a complainant, the officers would have faced the exact same procedures and Mr. Penner would not have had party status at the hearing. 

In the civil action, Mr. Penner sought financial compensation for the officers’ alleged misconduct.  The Court accepted that the legislature didn’t intend to foreclose the civil action simply because a complaint was filed under the Police Services Act, and yet this is exactly the result that this decision achieved.  The different purposes behind the disciplinary hearing and the civil action ought to have been determinative at this stage.  Mr. Penner did not stand to benefit financially from any finding of misconduct at the disciplinary hearing even though the Court alludes to issue estoppel being a double-edged sword where a finding adverse to the officers would have considerably aided Mr. Penner in his civil claim. 

But that begs the question. Why would a complainant turn to the public complaint process under the Police Services Act and have the issue prosecuted by a police officer from the same force and adjudicated by a police superintendant appointed by the Chief when he can have the matter adjudicated by a judge?  From a complainant’s perspective, the Court of Appeal seems to have turned the issue into a zero-sum game: either you seek financial compensation for officers’ misconduct by way of a civil action or you seek to have them disciplined pursuant to the procedures outlined in the Police Services Act.  These two remedies should not be mutually exclusive and yet with the limitation period for public complaints under the Police Services Act being set at six months, it seems that the practical reality is that they are mutually exclusive.  This injustice/unfairness should have been sufficient to enable the Court to exercise their discretion in not applying issue estoppel.    

Questions to Ponder

Mr. Penner has sought leave to appeal to the Supreme Court of Canada. If the Supreme Court decides that the Ontario Court of Appeal was right or denies leave to appeal, what can be done about the implications of that decision?  It’s important to keep in mind that the Police Services Act has been amended when the OIPRD was established in the fall of 2008.  While this represents significant reform in terms of oversight of the public complaints process, it arguably does not affect the impact of this decision as the complainant still has party status at the disciplinary proceeding, the OIPRD does not act as agent or counsel for the complainant, and the complainant needs consent from the OIPRD to withdraw a complaint.  This is assuming that the complaint makes it to the hearing stage by passing the ‘frivolous, vexatious, bad faith’ stage as well as the ‘unsubstantiated’ option available to the Chief after conducting an investigation.

The impact of the Court of Appeal decision is that a civilian who seeks monetary damages due to a police officer’s misconduct which does not rise to the level of falling within the Special Investigations Unit’s mandate of resulting in ‘serious bodily harm or death’ should NEVER consider filing a public complaint through the OIPRD.  If they choose that route and a former Superintendant decides that the misconduct is not proven on ‘clear and convincing evidence’ by a police officer from the same division of equal or higher rank appointed by the Chief, then their civil claim will be barred by operation of issue estoppel.  But Wayne Penner didn’t seek monetary damages.  When he was wronged, he just sought a ‘public apology’ which wasn’t even one of the disciplinary measures available under the Police Services Act.  Once he was deprived of any meaningful measure of accountability through the public complaints route, he chose to seek redress through the civil avenue.  This avenue just turned out to be extremely frustrating and costly.

What do you think about the implications of the Court of Appeal decision?  In light of Professor Futterman’s discussion at the LEAP Conference last week about the potential of law school clinics, do you think there is a role for law school clinics around the province in providing legal assistance to complainants in police disciplinary hearings?  Since Legal Aid Ontario funding for a complainant in a disciplinary hearing is out of the question, do you think the Court of Appeal decision effectively precludes a complainant from taking advantage of their party status at the disciplinary hearing in any meaningful way if they cannot afford to hire a lawyer?  Should the Police Services Act be amended to exclude the complainant as a party and reduce their role to a witness, similar to the role that complainants play in a criminal trial?

Posted by Vlatko Karadzic (Windsor Law III)

Alberta: Moving Backward in Police Complaints Process?

Solicitor General Frank Oberle proposed changes to Alberta's public police complaints process on Thursday, claiming that such changes are necessary to improve the efficiency of the process. The proposed changes would include restrictions on who can launch a complaint, increased powers to dismiss frivolous complaints and a more limited appeals process.

Under Bill C-27, only those directly affected by an officer’s behaviour, including loved ones or witnesses would be allowed to make submissions. Effectively ending the ability of third-parties to make complaints on behalf of those who are unwilling or unable to file a complaint themselves.

The Canadian Trial Lawyers’ Association is especially concerned because it will prevent them from making claims on behalf of large and vulnerable groups who are afraid to proceed on their own. In recent years, the CTLA has made numerous claims against the Edmonton Police Service, such as in the case of homeless people who were allegedly rounded up in a police van and left in another part of the city.

Under the amendments, groups and individuals wishing to make a third-party claim would still have the option of bringing a concern to the police chief, but the case would proceed at his or her discretion. In cases of “non-serious” incidents the police chief’s decision would be final, removing the current option to appeal to the Law Enforcement Review Board.

Oberle has also proposed greater powers for cases to be dismissed when the complainant declines to participate in a hearing or misbehaves, provisions for fewer oral hearings, and the use of alternative dispute resolution when appropriate. He believes that sometimes all that is required to resolve a case is a simple apology or acknowledgment of the complaint and that these proposals will simply prevent those who see a story of police misconduct in the news from filing a complaint.

Do you think these changes will improve efficiency in the complaints process? Even if they will, do they go too far in limiting the effectiveness of police complaints in Alberta?

Do you agree that most police complaints can be resolved effectively with an apology?

Do you think 3rd parties should be able to lodge a complaint against the police without the involvement of the primary individual? Is the Ontario approach any different?

Posted by Pamela Santora (Windsor Law I)

LEAP-CLA Police Complaints Project Launched

Windsor law students help file complaints against police

By Chris Thompson, The Windsor Star (April 23, 2010)

WINDSOR, Ont. -- In the past, many people who felt they had been wronged or mistreated by police found the process of lodging a complaint less than inviting, even intimidating, and often confusing.

University of Windsor law professor David Tanovich is hoping a recently introduced program through Community Legal Aid along with a new provincially mandated police complaints process will change all that.

"That's been a constant complaint, sort of the idea that accessibility, of knowing where to go and sort of feeling safe, is one of the impetuses of the new system," said Tanovich.

The Law Enforcement Accountability Project, along with Community Legal Aid, are now open for business with U of W law students to assist people with filing a police complaint with the Office of the Independent Police Review Director.

"It's really about providing students a way to learn about these issues and to provide meaningful sources of research and policy development," said Tanovich.

Under the program, law students who underwent a training program last month will be available at the legal aid office at 2475 University Ave. W. to assist people seeking to lodge a complaint.

"We need to get the word out to the community that there is this new complaints process," said Tanovich. "And the availability of community legal aid to provide a safe space and a law student to file a complaint."

The OIPRD has been in operation since October and was instituted in response to a report by Patrick LeSage, who recommended a new independent civilian body to administer public complaints about police in Ontario.

Thus far there has been only one person who has taken advantage of the service, and Tanovich would not divulge details, citing confidentiality.

Across the province there have been 1,200 complaints lodged since the opening of OIPRD, an increase over the norm for that period prior to the office's existence.

Windsor police Staff Sgt. Rick Facciolo, the head of the professional standards branch, said the new system is working well, but adds an extra step in having to send case information to Toronto. He said the number of complaints is roughly the same since the new system came in.

Complaints can now be filed directly online, and will be handled by civilians.

Tanovich plans to hold community outreach meetings to get the word out about the service.

"We believe police complaints are under-reported," said Tanovich. "There's a lack of knowledge about the process, a fear of the process."

Tanovich said he hopes the local service is a success and spreads to other communities across the province.

"I think it's a good idea for other legal aid clinics across the province to provide similar support," said Tanovich.

"Hopefully we'll serve as a model in terms of our training, which is really critical in terms of students being able to do this effectively. There are often underlying issues in terms of the trauma individuals have experienced, that have been victimized by the police."

More information is available at www.oiprd.on.ca and www.uwindsor.ca/law/policing-the-police.

© Copyright (c) The Windsor Star

Toronto Star reports on first six months of Office of the Independent Police Review Director

"Police complaints office gets some of what it wants: Now better-funded, grievances are coming in. But there are still credibility issues"

Jim Rankin,
Staff Reporter (11 April, 2010)

Gerry McNeilly and a friend cooked up the idea of an African Canadian Legal Clinic in his Mississauga kitchen in 1991, and 15 years later he helped found a Manitoba clinic that provides legal advice for abused women.

But if you picture him in an activist role as head of the Office of the Independent Police Review Director – Ontario's new civilian-run system for overseeing public complaints about police conduct and policy – think again.

"We're not here to get anybody," McNeilly said in a recent interview. "We're independent, and we're going to continue to act independently, and we're not taking sides and we're not here to do that.

"My role will be very, very neutral. I'm going to carry out my job in an extremely collaborative and consultative way, with all of the stakeholders."

The agency officially opened up for business in October, and it's taking complaints online, at its Bay St. office and by mail and fax, provided the incident occurred after the new system kicked into place and is within its mandate to oversee.

As of mid-March, 1,011 complaints had been filed province-wide, slightly more than was expected, says McNeilly. About half were filed directly with the civilian agency, with the rest being passed on by police services.

People can still file complaints at any police station. Police must then pass them on to the civilian agency within three days, which then decides how to classify the complaint and makes a call on whether to assign a civilian investigator, ask that another police service investigate, or pass it back to the originating service for self-investigation.

Of the complaints received so far, 416 were screened out because they either predated the new system, were deemed to be frivolous or vexatious, were better dealt with elsewhere, or were duplicates, incomplete or not about police officers.

One in every six complaints that has been accepted – and deals with officer conduct – has been kept by the agency for investigation by one of its own civilian investigators.

The Independent Police Review Director's office has 45 staff and will top out at 50. This includes 10 civilian investigators with the power to get search warrants, summon witnesses and order police to hand over relevant documents.

Four of the 10 investigators are former police officers. "I needed the experience and skills to do a police investigation – and the know-how," says McNeilly, who was appointed director by the Lieutenant Governor.

The office also has the power to delve into systemic issues. "One area I'm looking at already," says McNeilly, "is that there is a fair amount of incivility, and it has a lot to do with traffic stops, and that may be an area where part of my role is to provide education and training."

The soft-launch of the office last October caused barely a media ripple. It came nearly five years after former Justice Patrick LeSage delivered to the Ontario government a blueprint for a more transparent and efficient system to replace one that instilled little public confidence and, perhaps more important, would be better funded than the Police Complaints Commission, mothballed in 1996 by the Mike Harris government.

McNeilly expects the annual budget will be about $9 million. That's more than the budget for Ontario's civilian Special Investigations Unit – which probes police incidents involving serious injury and death – and double that of the old Police Complaints Commission.

So far, the new office hasn't been as active as police leaders thought it would be. "Frankly, I was expecting more of an impact," says Toronto police Chief Bill Blair. "But I'm confident Mr. McNeilly sort of will get his legs and take more active involvement."

"It is still early," says Ron Bain, executive director of the Ontario Association of Chiefs of Police. "And I think that we, and Mr. McNeilly, are still waiting to hear from people who are the harshest critics of the old system, as to whether the new system is in fact meeting their expectations."

McNeilly is indeed anxious to hear from those who were critical of the old system, the loudest of whom were fellow lawyers who had long advised clients not to even bother lodging a formal complaint.

Among them was Toronto lawyer Clayton Ruby. He has had no experience with the new system but so far sees nothing in the way it's set up that would change his mind. "It's always useless."

Many of LeSage's recommendations have been adopted into the new system, including the ability of a third party to file a complaint. "The floodgates haven't been opened," as some expected, says McNeilly. "It's just been a trickle."

Under the new system, police will continue to investigate the vast majority of complaints. The civilian agency will oversee decisions, has the power to review, and can take over an investigation. Police chiefs remain in charge of any discipline that is eventually meted out.

And police will continue to adjudicate police disciplinary hearings stemming from serious public complaints involving allegations of harassment, discrimination, breach of confidentiality, misconduct or conduct that might result in a criminal charge. This, despite an explicit recommendation by LeSage that a stable of independent, on-call adjudicators be developed for such occasions.

Spokespersons for the Ministry of Community Safety and Correctional Services and the Attorney General, the ministries involved in policing and police oversight, confirmed no action has been taken on that front.

In a telephone interview, LeSage said he met and learned of many competent police officers who served as adjudicators during his consultations, but hopes the government follows through on the recommendation to enlist a cadre of independent adjudicators, if for no other reason but the optics. He suggests the Independent Police Review Director's office should be able to retain lawyers to serve when needed and serve as lone adjudicators or as part of a panel.

McNeilly hopes the new regime – geared toward better communication with complainants and timely investigation and resolution of complaints – will change minds and be seen as fair and impartial.

McNeilly, who is in his 50s and ran Legal Aid Manitoba for nine years, says other provinces are watching how the new Ontario complaints system will work.

"Nothing is etched in stone," he says, "so we can make changes to make it better if I have to."

Copyright (c) Toronto Star 2010

Windsor student acquitted of assaulting a police officer and resisting arrest at Passa Passa campus event

On November 2, 2009, Yared Bogale, a 24-year-old University of Windsor student was acquitted on charges of assaulting a police officer and resisting arrest following a Passa Passa social event at the University pub early last year.

In the early hours of January 20, 2008, more than twenty Windsor police officers, including the canine unit, responded to a call from Campus Police to disburse the crowd at the conclusion of a Caribbean-themed campus event. It still remains unclear why so many officers responded when there was no evidence of any weapons, drugs or other security risk. What ensued was a confrontation between the police officers and several students who were arrested. The cellular footage of one student arrest has been posted on You Tube. [A number of students reported that officers tried to stop them from recording the event.] Most of the students were released from custody without charge or later had their charges withdrawn. Yared's case proceeded to trial.

In the wake of this incident, a group of Windsor students formed the grassroots organization Students Against Anti-Black Racism (SAABR) to address racism on campus.

In acquitting Yared, Justice Micheline Rawlins concluded that the officer in question was operating under an "erroneous frame of reference" and was "primed and predisposed" to confrontation when he responded to the Campus Police call to disperse the crowd. She found that Yared was "defending himself" against someone he did not know to be a police officer.

The next stage is a human rights complaint involving four students. See Chan v. Windsor Police Service. Mediation was held on November 4, 2009 in Windsor. All students are now represented by Selwyn Pieters, a well-known human and civil rights lawyer in Toronto.

It should be noted that following the incident, then President Ross Paul filed a complaint with the Windsor Police Service regarding the incident. Chief Gary Smith conducted an investigation and prepared a report. However, the report has not been released because of ongoing human rights litigation.

Additional information about the human rights case can be found by reading Chen, "Students, police try to talk out problems" Windsor Star (4 November 2009).

Posted by Minoo Alipour (Law III)

Globe and Mail carrier's encounter with police was impacted by race and gender rules Human Rights Tribunal

On March 26, 2007, the applicant, a Black woman, was delivering newspapers along her route in the early hours of the morning when she was stopped by a police officer for what he described as erratic driving. As the officer approached, she pulled out her cell phone and began trying to call her husband. The applicant stated that she was fearful of stories she had heard of women being assaulted by men posing as police officers and she wanted her husband on the phone as a “witness”. The officer testified that he repeatedly asked her to put down the cell phone and produce identification documents, which he alleges that she refused to do. The officer stated that he warned the applicant that she would be placed under arrest if she failed to do so. The applicant denied ever receiving such a warning.

The officer then proceeded to place the applicant under arrest and a struggle ensued. They both fell to the ground. The applicant testified that she was thrown to the ground while the officer testified that they both lost their balance and fell. There is no dispute that the officer pinned the applicant to the ground to handcuff her and then grabbed her by the belt and put her in his patrol car. The applicant suffered an abrasion over her left eye, cuts on the inside of her lip and bruising from the handcuffs as a result of the struggle. The applicant was acquitted of all of the charges.

In Abbott v. Toronto Police Services Board, the Ontario Human Rights Tribunal was faced with competing versions of the incident and decided that “[i]n the instant case … the determination comes down to whether an inference of racial and/or gender discrimination is more probable than the respondents’ explanation for Sergeant Ruffino’s conduct.” The Tribunal explained that it is not necessary to show that the officer intended to discriminate against the applicant as racial discrimination and bias often operates at a subconscious level. Instead, it would have to examine whether the applicant’s race and/or gender was a factor in the events that unfolded.

In order to decide the case, the Tribunal hypothesized whether the same events would have unfolded had the woman been White. In this instance, the Tribunal found it “hard to imagine that Sergeant Ruffino would not have made different choices if the applicant had been white.” In particular, the Tribunal was of the view that the officer could have done a lot more to effectively defuse the situation before it escalated to the level it reached:

"In saying this, I am not at all suggesting that Sergeant Ruffino made the choices that he did on the conscious basis that the applicant is a Black woman. As stated above, and as confirmed by the Supreme Court of Canada in R. v. S. (R.D.), supra, that is not how racial discrimination most often operates. Most often, racial discrimination emanates from unconscious attitudes and belief systems. In a historical context, some of these attitudes and belief systems include that Black persons (and other groups) are expected to “know their place” and that any Black person who talks back or refuses to comply is to be regarded as “uppity” and needs to be dealt with harshly. There is no evidence before me that Sergeant Ruffino consciously subscribes to any such attitudes or belief systems. But these kinds of attitudes and belief systems are part of our historical and social fabric, and are imbued in all of us through social interactions, the education system, the media and entertainment industries, and other means."

Mark Hart, the adjudicator, then concluded:

"On the basis of my consideration of the totality of the evidence, I draw the
inference that the applicant experienced discrimination because of her race and gender in relation to her encounter with Sergeant Ruffino on the basis of the following findings:

a) I find that Sergeant Ruffino’s approach and tone when he initially spoke to the applicant was unnecessarily brusque and commanding;

b) I find that when Sergeant Ruffino got out of the patrol car and went to speak with the applicant, her attention was focused on calling someone on her cellphone and she was distracted from hearing and responding to Sergeant Ruffino, and this was apparent to him at the time;

c) I find that the applicant, as a woman of relatively small stature and as a Black woman being approached by Sergeant Ruffino in the wee hours of the morning, was fearful and confused, and this ought reasonably to have been apparent to Sergeant Ruffino;

d) I find that, on Sergeant Ruffino’s evidence, he was aware that the applicant wanted to have a witness on the phone before she would speak with him, and Sergeant Ruffino ought reasonably to have appreciated that the applicant’s desire was related to her confusion and fearfulness and was linked to issues of distrust between the Black community and the police;

e) I find that, notwithstanding the presence of these factors, Sergeant Ruffino unreasonably persisted in making demands for the applicant’s documents and name, without taking any steps to try to defuse or deescalate the situation;

f) I find that Sergeant Ruffino’s actions in this regard are consistent with a manifestation of racism whereby a White person in a position of authority has an expectation of docility and compliance from a racialized person, and imposes harsh consequences if that docility and compliance is not provided;

g) I find that Sergeant Ruffino’s actions led directly to his decision to place the applicant under arrest, which I find was unjustified and unnecessary in the circumstances;

h) I find that a White woman would not have been treated in the same manner in similar circumstances;

i) I find that the harsh consequences imposed upon the applicant by Sergeant Ruffino include not only his decision to arrest the applicant, but also his decision to lay the number of charges he did against the applicant, and particularly the charges for failure to identify herself or provide her documents when he had the applicant’s name and documents at the time the charges were laid and was aware or ought to have been aware of the applicant’s state of distraction, confusion and fearfulness at the time he was demanding this information from her."

The Tribunal also found, that based on past precedents, the Toronto Police Services Board and Chief of Police Bill Blair were also to be held liable for the actions of Sergeant Ruffino. The applicant was $5000 in damages.

Posted by Martin Mendelzon (Law II)

Office of the Independent Police Review Director (Ontario) open for receiving police complaints

OIPRD Press Release

New Public Oversight Body Opens
First public complaint about the police can be filed October 19, 2009

NEWS
October 19, 2009
The Office of the Independent Police Review Director (OIPRD) officially opened its doors to the public today, bringing in new, stronger civilian oversight in Ontario.

The OIPRD was created in response to a report by the Honourable Patrick LeSage, recommending a new independent body to administer public complaints about the police in Ontario.

The OIPRD is an independent agency of the Ministry of the Attorney General responsible for receiving and dealing with all public complaints about the police in Ontario. The OIPRD’s goal is to provide independent, accessible and effective oversight of complaints that will build confidence and trust in the public complaints process.

QUOTES
“My team and I have worked hard over the past year to reach this point. In cooperation with the community and the police, we’ve developed the framework for a transparent and accountable system that will help enhance the positive relationship between the police and the community.”
—Gerry McNeilly, Independent Police Review Director

“I’m pleased that Ontario now has a complaints system that has the confidence and respect of both the public and the police. Civilian oversight contributes to public safety and is consistent with our government’s commitment to stronger, safer and more prosperous communities.”
—Chris Bentley, Attorney General

QUICK FACTS
The OIPRD can accept a complaint about any incident that occurred on October 19, 2009 or after.

Public complaints can be about any provincial, regional or municipal police officer in Ontario.

A complaint may be about the policies or services of a police department, or about the conduct of a specific officer.

LEARN MORE
Visit the OIPRD website to learn more about the public complaints system.
Read the Independent Police Review Act.
Allison Hawkins, Communications Branch 416-314-4517
www.oiprd.on.ca

RCMP rejects CPC's recommendation that internal RCMP investigations cease in cases involving death

On Tuesday, the Commission for Public Complaints against the RCMP (CPC) released a report concluding that the RCMP’s internal investigation process is inadequate. Referring to the RCMP’s current process as “Police investigating Police,” the CPC concluded that such practice “does not engender confidence in the transparency and integrity of an investigation and its outcomes.” Further, the research done by the CPC revealed some troubling statistics. First, that 25% of investigators knew the member they were investigating. CPC Chair Paul Kennedy noted that this can result in bias, or in situations where the investigating member is of a lower rank than the member being investigated, intimidation. The report also revealed that internal investigations are conducted by members with significantly different levels of experience and qualification.

The CPC made several recommendations to help remedy the internal investigation process until a more permanent solution is created. Among these recommendations were that all member investigations involving death be referred to an external police force or provincial body. The CPC rejected the current RCMP policy that internal investigations be handled like any other investigation because “[p]olice are held to higher account by the very nature of the work they do.”

The response from RCMP Commissioner William Elliot that it was business as usual was very disappointing and likely did little to satisfy the public anticipation that the CPC's recommendations would be implemented. Elliot argued that there are specific situations where it is impossible for the RCMP not to investigate itself, for example, in remote communities where waiting for outside police forces to arrive and begin an investigation could threaten the credibility of forensic evidence. Elliot seemed to believe the investigative process within the RCMP was not as flawed as the CPC found.

Yet to a scrutinizing public eye, or perhaps the families of people such as Robert Dziekanski or Ian Bush who were killed at the hands of RCMP officers, Elliot’s underwhelming response may not be enough. Unfortunately, his response may actually contribute to a lack of transparency and accountability within the RCMP, which implementation of the recommendations was meant to restore. Further, offering exceptional situations where it may be difficult to implement the recommendations (such as in extremely remote communities) appears to be an excuse as to why the recommendations will not work. In short, Elliot has done nothing to restore public confidence regarding internal RCMP investigations, if anything, he has made the situation worse by attempting to protect a method that is clearly flawed.

Posted by Ashley Paterson (LAW II) (LEAP Summer Intern)

Racial profiling complaints by Halifax Police Service officers against their force filed in Nova Scotia

According to a CBC story published in early June, Constable Charles Bruce of the Halifax Police Service has filed a complaint against the HRP alleging racial discrimination. It is the third such complaint filed within the last year. Const. Bruce alleges that he was not considered for promotion and transfer because of his skin colour. He also alleges that systemic racism within the force is a continuing problem.

Const. Bruce’s complaint arrives on the heels of similar complaints filed against the HRP by Sgt. Robyn Atwell and former police officer Lewis Cain in December 2008. Further, such incidents of internal racial discrimination do not seem to be isolated. Halifax Regional Municipality is currently dealing with several racial discrimination complaints filed by black firefighters with Halifax Fire Services.

The complaints of the three officers with the HRP are detailed on a website that has been developed to draw attention to these issues, http://halifaxregionalpoliceracediscrimination.com/index.htm. Robyn Atwell, HRP’s first black female Sergeant, claims that she has experienced racism since first becoming a member of the force in 2003. Atwell alleges that she has had a knife pulled on her by a member of the force. Cain, the other officer who has filed a complaint, was terminated just 15 months after he was hired due to what he alleges was racial discrimination by both higher ranking officers and his supervisor.

The three officers are represented by Rocky Jones, a prominent lawyer in Nova Scotia who has represented several complaints involving racial discrimination, perhaps the most well known of which is R. v. S.(R.D.).

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Montreal taxi driver allegedly pulled over and fined on account of race

After David Bastien, a 25-year-old Haitian taxi driver in Montreal, was pulled over and allegedly “unfairly handcuffed” and fined by Constable Jean-Francois Croteau, concerns about why this happened and why it has happened more than once are surfacing.

On April 5, 2009, David Bastien reports that he was ordered by Croteau to pull over and provide his driver’s license. He further alleges that Croteau pulled him out of his car and handcuffed him. Croteau proceeded to issue four fines against Bastien, reports the Montreal Gazette. The fines included:

-“$638 for ‘having refused to produce for examination by a peace officer a (driver’s) permit’”; -“$169 for ‘being the driver and not behaving in a dignified or civil manner’”;-“$100 for ‘not ensuring that the inside of the taxi is clean’”;-“$169 for ‘being a driver and raiding with the taxi,’ trying to pick up another’s fare.”

Since the incident, Bastien has gone to the Quebec Human Rights Commission and the Police Ethics Commission with his case against Croteau, but both Commissions are yet to hear it. According to the Gazette the complaints filed by Bastien state, among other things, that “most taxi drivers are afraid of reprisals by police and do not have confidence in the complaint procedure.” The precise evidence that Bastien has to substantiate this claim, if any, is unknown. However if proven to be true, it is a powerful proposition, especially considering that this is not the first time recently that a Montreal taxi driver has been detained and issued what seems to be an outrageous amount of tickets at once. In March and May, respectively, another officer, Constable Pierre Belanger, issued $600 in tickets to one cab driver and $2,310 in tickets to another. Both Croteau and Belanger work out of Station 21. When asked about these incidents, Commander Alain Simoneau replied that “[t]his is not a situation of racial profiling in any way,” but “application of the highway code, pure and simple.” Whether such a response will placate taxi-drivers in Montreal is yet to be seen. However, with the recent incident in Ottawa regarding an alleged police attack on a taxi-driver, drivers are being given more and more reasons to distrust the police. It seems too coincidental that all four taxi drivers in these two cases are racialized.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Executive Director of Alberta's Serious Incident Response Team calls for more cilivian involvement

Clifton Purvis, the ED of Alberta's Serious Incident Response Team, the unit that investigates serious instances of police misconduct, has called for more civilian involvement of investigations. As he put it, "my personal vision would see a much greater balance so that we'd have about a 50-50 split between civilian officers and sworn police officers." The current team is composed of 12 investigators --- four civilian and eight officers from the RCMP and Edmonton and Calgary Police Services.

Harper government to cut funding of RCMP police complaints commission

According to estimates tabled by the federal Treasury Board, the RCMP Public Complainants Commission which oversees the RCMP will face a substantial cut in funding from the federal government. Commission chair Paul Kennedy has warned that the cuts will force him to cut a policy division created in 2007 to explore the use of tasers and which was responsible for the creation of the new RCMP policy. See the discussion of the new policy in the February 13, 2009 blog entry entitled "RCMP admit dangers of tasers and establish new policy for use and training." The policy division is currently conducting research on how the police deal with mentally ill suspects.

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

A rare glimpse into one man's attempts to seek redress for racial profiling through the Ontario police complaints process

In his story "Riding while black, or looking for trouble?", Toronto Star reporter Jim Rankin chronicles the numerous incidents that Arden Ditten, a Black Toronto resident, has had with the Toronto Police Service over the past five years. It also reveals the flaws of a police complaints process that allows the police to investigate themselves particularly on issues that they often fail to properly understand such as racial profiling.

Posted by Professor Tanovich

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