Вы находитесь на странице: 1из 384

report of the

Independent Police O versight Review


report of the
Independent Police
O versight Review
The Honourable Michael H. Tulloch

Queens Printer for Ontario


The Honourable Michael H. Tulloch is a judge of the Court of Appeal for Ontario.
Queens Printer for Ontario, 2017
ISBN 978-1-4606-9850-1 (Print)
ISBN 978-1-4606-9851-8 (HTML)
ISBN 978-1-4606-9852-5 (PDF)
Available in print, HTML, PDF, and EPUB formats
Available at www.ontario.ca/mag
Disponible en franais
TABLE OF CONTENTS

Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Letter to the Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Letter to Participants and Stakeholders . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

part i Executive Summary

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

part ii The Context of this Review

Chapter 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Chapter 2. Mandate and Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31


2.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.200 Mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.300 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Chapter 3. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
3.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.200 Policing in Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.300 How the current system of civilian oversight operates . . . . . . . . . . 48
3.400 Civilian police oversight in other jurisdictions . . . . . . . . . . . . . . . . 55
3.500 The history of civilian police oversight in Ontario . . . . . . . . . . . . . 55

part iii Discussion and Recommendations

Chapter 4. Composition of the Oversight Bodies . . . . . . . . . . . . . . . . . . . . . 63


4.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

v
4.200 The legislation that governs the oversight bodies . . . . . . . . . . . . . . 65
4.300 Overview of the people that run the oversight bodies . . . . . . . . . . 68
4.400 Social and cultural competency programs . . . . . . . . . . . . . . . . . . . 69
4.500 The directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
4.600 The people who fulfill the public accountability function
at the siu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
4.700 The people who carry out the investigative function . . . . . . . . . . . 79
4.800 Oversight of the oversight bodies . . . . . . . . . . . . . . . . . . . . . . . . . 93
Chapter 5. Effective Criminal Investigations . . . . . . . . . . . . . . . . . . . . . . . . . 95
5.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
5.200 Mandate and notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
5.300 Duty to cooperate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Chapter 6. Transparent and Accountable Criminal Investigations . . . . . . . 119


6.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
6.200 Release of names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
6.300 Public reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
6.400 Past reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
6.500 Investigative timelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
6.600 Coroners inquests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

Chapter 7. Public Complaint Investigations . . . . . . . . . . . . . . . . . . . . . . . . 143


7.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
7.200 Accessibility of the complaints process . . . . . . . . . . . . . . . . . . . . 146
7.300 The complaints process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
7.400 Transparency and accountability . . . . . . . . . . . . . . . . . . . . . . . . . 177
7.500 Systemic review and monitoring . . . . . . . . . . . . . . . . . . . . . . . . . 181

Chapter 8. Public Complaint Adjudications . . . . . . . . . . . . . . . . . . . . . . . . 185


8.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
8.200 Independent adjudications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
8.300 Resolutions and decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

Chapter 9. Coordinating Oversight and Removing Inefficiencies . . . . . . . . 199


9.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
9.200 Coordination of investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
9.300 The ocpcs functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
Chapter 10. Indigenous Peoples and Police Oversight . . . . . . . . . . . . . . . . . 221
10.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
10.200 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
10.300 Experiences of Indigenous peoples with the oversight
bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
10.400 Indigenous cultural competency . . . . . . . . . . . . . . . . . . . . . . . . 231
10.500 Oversight of First Nations policing . . . . . . . . . . . . . . . . . . . . . . 240

Chapter 11. Demographic Data Collection . . . . . . . . . . . . . . . . . . . . . . . . . 243


11.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
11.200 The case for demographic data collection . . . . . . . . . . . . . . . . . . 244
11.300 Advisory committee on best practices . . . . . . . . . . . . . . . . . . . . 249

Chapter 12. Other Forms of Police Oversight . . . . . . . . . . . . . . . . . . . . . . . 253


12.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
12.200 Police services boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
12.300 College of Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

Appendix A. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

Appendix B. Orders-in-Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289

Appendix C. Jurisdictional Summaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303


British Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
Alberta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Saskatchewan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
Manitoba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
Qubec . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
New Brunswick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
Nova Scotia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
Prince Edward Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Newfoundland and Labrador . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
rcmp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Northern Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
CONTRIBUTORS

Independent Reviewer
The Honourable Michael H. Tulloch

Executive Director Strategic Advisors


Hilary Blain Danielle Dowdy
Pamela E.B. Grant
Chioma Ijioma
Senior Counsel Chief (Ret.) Armand La Barge
Jamie C. Klukach
Danielle Robitaille
Jodie-Lynn Waddilove Office Coordinator
Breanna Anderson

Counsel
Matthew Parker Administrative Assistant
Simon Igelman
Justin Reid

Research Counsel Communications Consultant


Peter Rehak
Jack Coop
John Noonan
Erin Rosenzveig Translation Services
Versacom

Student Researcher
Saul Moshe-Steinberg Production Services
Laura Brady

ix
ACKNOWLEDGMENTS

This report is the end product of the sup- the Honourable Susan Lang, as well as
port, input, and collaboration of a num- the Honourable Patrick LeSage. They,
ber of people, all of whom have been in- through their own experiences in con-
tegral to its success and completion. ducting similar reviews, were able to
provide me with invaluable advice at the
First, I must acknowledge and thank outset of this Review. Their good counsel
Chief Justice George Strathy, the Chief gave me the insight to lay the foundation
Justice of Ontario, and my judicial col- for what I feel was a very successful and
leagues from the Court of Appeal for inclusive process.
their moral support, understanding, and
indulgence while I have been away from Fourth, I must acknowledge and thank
the court on this assignment. all the team members who worked with
me on this Review over the last eleven
Second, I want to thank Rod McLeod, months. All their names are listed at the
who introduced me to the issues and front of this report. All are consummate
complexities of civilian oversight of po- professionals who were integral to the
licing when he asked me to join his team success of this entire process. Each of
as counsel twenty-one years ago during the team members gave over and above
the very first review of civilian oversight what was expected in both time and ef-
of policing in Ontario. Rod was an ex- fort. They worked tirelessly to ensure that
cellent mentor and teacher with an un- our timelines were met and that the end
paralleled work ethic, whose approach product of this report would meet the
continues to inform and influence me to standard expected of us.
this day.
Fifth, I would like to thank the various
Third, I must thank my former colleagues stakeholders and members of the public
the Honourable Stephen Goudge and
xi
with whom I met, both in private meet- Last, but certainly not least, I want to
ings and public consultations, as well thank my family who coped with my
as those who were unable to meet with absence over the last year. Your sacrifice
me, but who provided written submis- and support are very much appreciat-
sions. Their input was invaluable and ed. I could not have participated in this
informed my recommendations. process without you.

Sixth, there were also a number of in- The same can be said for the families of
dividuals I called on at times to test my my team members. I personally want to
ideas and provide feedback on portions thank you for supporting them during
of my report. They all know who they this process.
are. I want to publicly acknowledge
them and thank them for their contri- michael h. tulloch
butions.
LETTER TO THE ATTORNEY GENERAL

xiii
LETTER TO PARTICIPANTS AND STAKEHOLDERS

xiv
ABBREVIATIONS

ocpc Ontario Civilian Police Commission


oiprd Office of the Independent Police Review Director
opp Ontario Provincial Police
rcmp Royal Canadian Mounted Police
siu Special Investigations Unit

xv
part i
Executive Summary
EXECUTIVE SUMMARY

the police in Ontario. And the third is


the Ontario Civilian Police Commission
(ocpc), which primarily adjudicates
appeals of police disciplinary hearings,
among a number of other functions.
3. This report focuses on recommen-
dations to improve the transparency,
accountability, and effectiveness of those
three civilian police oversight bodies. In
this executive summary (part I of my
report), I summarize the context of this
Review (part II) and my recommenda-
1. On April 29, 2016, following public tions (part III).
demonstrations of dissatisfaction with
policing and police oversight, I was
Summary of Part II The
charged with reviewing Ontarios three
Context of this Review
civilian police oversight bodies.
4. Police oversight, the police, and the
2. The first of those bodies is the Special
communities they serve are inextricably
Investigations Unit (siu), which inves-
intertwined. Therefore, understanding
tigates police-civilian interactions that
police oversight requires understanding the
result in serious injury or death to a civil-
police as well as the communities they serve.
ian. The second is the Office of the Inde-
pendent Police Review Director (oiprd), 5. The relationship between the police
which oversees public complaints about and the communities they serve is at

3
4 Report of the Independent Police Oversight Review

times very complex. This relationship 8. It is within this context that the three
must be situated within its historical con- civilian police oversight bodies operate
text in our modern, pluralistic society. For in Ontario.
some communities, particularly Black and 9. For this Review, I was asked to make
Indigenous communities, historical real- recommendations for improving the civilian
ities have led to a distrust of the police, police oversight bodies in four main ways:
a distrust that sometimes extends to the
Ensuring they are effective and have
oversight bodies themselves.
clear mandates;
6. This is no small problem. Modern
Reducing overlap and inefficiencies
policing, after all, is founded on public
between them;
trust. That trust is tested when the police
cause a civilians death or serious injury, Enhancing their cultural competency
or behave in a manner that is seen to fall when interacting with Indigenous
below the professional standards expected peoples; and
of them. Enhancing their transparency and
accountability.
Modern policing, after all,
10. On this last point, enhancing trans-
is founded on public trust. parency and accountability, three further
That trust is tested when the questions were put to me concerning the
police cause a civilians death siu:
or serious injury, or behave in Whether more information should be
a manner that is seen to fall released to the public about siu inves-
below the professional stan- tigations, including the siu directors
reports? And, if so, how should that
dards expected of them.
be done?

7. For the public to have confidence Whether the names of the following
that the police will be held accountable, individuals should be released in an
the investigation and resolution of such siu investigation:
matters often requires the involvement The officer who is the subject of the
of an outside investigative body. investigation;
executive summary | 5

Police witnesses; and To me, context is always


Civilian witnesses? of critical importance.
Whether the past reports of the siu Accordingly, it was very
director should be released? And, if so, important for this Review to
how should that be done? include the voices of as many
11. In addition to the four broad areas people as possible.
described above, the government asked
me to address the following issues: 13. Here, I wish to briefly highlight the
Whether the police oversight bodies Reviews consultation process. To me,
should employ former police officers? context is always of critical importance.
Accordingly, it was very important for
Whether the mandates of the three
this Review to include the voices of as
oversight bodies should be set out in
many people as possible. I therefore com-
legislation separate from the Police
mitted to holding an open, extensive, and
Services Act?
accommodating consultation process.
Whether the police oversight bodies
14. That process took place over seven
should share any information they col-
months, during which I met with more
lect with each other? And, if so, how
than 1,500 individuals. I did so in 17
should that be done?
public consultations and over 130 private
Whether the three police oversight meetings. In the end, those people I met
bodies should collect demographic greatly informed my understanding of
information? And, if so, how should police oversight and shaped my recom-
that be done? mendations to improve it. For this report,
12. The process for answering these those people were not merely helpful, but
questions involved assembling a absolutely essential. For that, I am deeply
team, conducting research, consulting grateful.
broadly, analyzing issues, and making 15. Because context is so crucial, I also
recommendations. examined oversight bodies in other juris-
dictions as well as past reports on police
oversight in Ontario. Throughout my
discussion and recommendations, I draw
6 Report of the Independent Police Oversight Review

on best practices from other jurisdictions 19. On former police officers, I conclude
and insights from past reviewers. that they should not be excluded from
working as investigators at either the siu
or oiprd. Excluding such candidates
Summary of Part III Discussion
would place too much emphasis on where
and Recommendations
they used to work rather than who they
16. My recommendations are set out are as individuals.
in part III, in chapters 4 to 12. I have
20. After all, someone who has never
included a list of them in appendix A.
worked as a police officer could still be
Here I briefly touch on each chapter,
strongly biased in favour of the police,
highlighting key recommendations.
and thus make a poor civilian oversight
investigator. In contrast, a former police
Chapter 4 Composition of the officer could be unbiased and make an
oversight bodies excellent, objective civilian oversight
investigator, one whom it would be unfor-
17. My discussion and recommendations
tunate to pass over.
begin with chapter 4, where I review the
laws that constitute the oversight bod-
ies and the people who make the bodies
Separate legislation would
operate. This includes answering the make it easier for people to
Ontario governments questions about understand how the oversight
separate legislation and former police bodies work.
officers.
18. On separate legislation, I say that 21. The better solution, therefore, would
the civilian police oversight bodies be to incorporate anti-bias measures into
should have their own legislation, sep- hiring, training, educating, and evaluating
arate from the Police Services Act (see investigators (see recommendations 4.17,
recommendation 4.1). Separate legis- 4.18, and 4.19).
lation would make it easier for people 22. That said, I recommend that the
to understand how the oversight bod- oversight bodies should do more to
ies work. Also, it would confirm their increase their complement of high-qual-
importance and independence. ity investigators who do not have a back-
executive summary | 7

ground in policing (see recommendations 27. My recommendations in this chap-


4.13, 4.14, 4.15, and 4.16). Including ter address the sius mandate. Currently,
more of those investigators makes the that mandate is to investigate the circum-
oversight bodies appear more indepen- stances of serious injuries or deaths that
dent. It also provides the oversight bodies may have resulted from criminal offences
with the many benefits that come with committed by police officers, including
diversifying investigative teams. allegations of sexual assault.
23. Elsewhere in chapter 4, I recommend 28. My recommendations in this chap-
developing greater social and cultural ter also address the police duty to notify
competency within the oversight bodies the siu that its mandate may be invoked,
(see recommendation 4.3). I also recom- and the police duty to cooperate with siu
mend ensuring that the oversight bodies investigations.
better reflect the diversity of the commu-
nities they serve (see recommendations My recommendations in
4.4 and 4.6). this chapter address the sius
24. For the siu, I make recommenda- mandate. Currently, that
tions aimed at improving its ability to mandate is to investigate the
fulfill its public accountability function circumstances of serious injuries
(see recommendations 4.7, 4.8, 4.9, 4.10,
or deaths that may have resulted
and 4.11).
from criminal offences committed
25. Finally, I conclude chapter 4 by rec-
by police officers, including alle-
ommending that the Ombudsman should
have jurisdiction over all three oversight gations of sexual assault.
bodies (see recommendation 4.20).
29. First, I make recommendations to
clarify the sius mandate and to make it
Chapter 5 Effective criminal more effective. This includes the following:
investigations
Defining what a serious injury is, in
26. Chapter 5 is the first of two chapters accordance with the Osler definition,
that focus on the siu. This chapter targets so that the mandate is clearer (see rec-
its investigative function, while chapter 6 ommendation 5.1);
looks at its public accountability function.
8 Report of the Independent Police Oversight Review

Including within the mandate all legislation include a sanction for failing
incidents involving the discharge of to cooperate with the siu (see recom-
a firearm at a person (see recommen- mendation 5.12).
dation 5.2);
Allowing the siu the discretion to con- Chapter 6 Transparent and
duct investigations into any criminal accountable criminal investigations
matter when it is in the public interest
32. This chapter focuses on the sius
to do so (see recommendation 5.3);
public accountability function, and, in
Clarifying that the siu has the discre- particular, its public reporting.
tion to lay a charge for any criminal or
33. Public accountability is a crucial
provincial offence uncovered during
function of the siu. For the public to
an investigation (see recommendation
have confidence in policing and police
5.4); and
oversight, justice must not only be done,
Extending the sius mandate to special but also be seen to be done. That means
constables employed by a police force investigations must be effective and
and auxiliary members of a police force impartial. It also means that members
(see recommendation 5.5). of the public must be able to carefully
30. Second, I say that the requirements examine a decision not to charge to assure
for police notification should be set out themselves that the investigation was
in legislation (see recommendation 5.7). effective and impartial.

31. Third, I similarly recommend that


Public accountability is a
the general requirements of the polices
duty to cooperate should be set out in leg- crucial function of the siu. For
islation (see recommendation 5.8). This the public to have confidence
includes recommendations to clarify the in policing and police over-
types of information and evidence the siu sight, justice must not only
is entitled to receive, as well as ones that
be done, but also be seen to be
address issues arising out of the polices
done.
duty to cooperate (see recommendations
5.9, 5.10, 5.11, 5.13, 5.14, and 5.15). It
also includes a recommendation that the
executive summary | 9

34. In this chapter I make recommenda- the investigation (see recommendation


tions about the release of names, public 6.4).
reporting, and the release of past reports. 38. First, there are cases where the siu is
I also touch on investigative timelines and notified of an incident but withdraws its
coroners inquests. mandate after a preliminary investigation.
35. For the release of names, I say that a In those cases, the siu should report in
subject officers name should be released summary the reasons for its decisions as
in the same circumstances that the name part of its annual report (see recommen-
of a civilian under investigation would be dation 6.5).
released. That is, at the end of an investi- 39. Second, there are cases where the siu
gation, it should be released if the officer lays a charge. In those cases, the public
is charged (see recommendation 6.1). reporting should be minimal. The siu
36. In my opinion, releasing an officers should release the officers name, the
name at the end of an investigation when charge laid, and the date of the next court
that officer has not been charged would appearance (see recommendation 6.6).
do little to advance the sius objectives. This limited reporting is to avoid inter-
It would not make a completed investi- fering with the integrity of the criminal
gation any better. Nor would it do much proceeding.
to help people understand the charging 40. Finally, there are cases where the siu
decision. Rather, the key is for more does not lay a charge after a full inves-
transparent and accountable reporting tigation. In those cases, the siu should
on siu investigations. release the directors report to the public
(see recommendation 6.7).
I recommend that the siu
41. The report should include enough
report to the public on every
information for the public to carefully
investigation. examine the decision. That is, it should
include items such as summaries of
37. For public reporting, I recommend witnesses evidence; any video, audio, or
that the siu report to the public on every photographic evidence; and the reasons
investigation, although the content of that for the directors decision, including an
reporting would depend on the nature of
10 Report of the Independent Police Oversight Review

explanation of any legal standard applied that they will have to be edited to protect
(see recommendation 6.8). sensitive information. When making such
42. Some information, however, should edits, I therefore suggest inserting explan-
be excluded. That includes information atory notes in the body of the report.
that identifies witnesses and information Those notes would describe the nature
whose release is restricted by law or may of the redacted information and why it
pose a risk of serious harm to an individ- was redacted (see recommendation 6.13).
ual (see recommendation 6.9). 46. For investigative timelines, I recom-
43. The next issue I discuss is the release mend that the siu should aim to conclude
of past reports. These are the reports investigations within 120 days. If it does
that were written in siu cases where no not do so, it should report to the public
charges were laid. at that time and every 60 days thereaf-
ter (see recommendation 6.14). This is
44. For past reports, I recommend that
in addition to earlier recommendations
they be released, subject to the privacy
to improve the sius capacity to close
considerations of affected persons and
investigations in a timely manner (see
families, in the following cases:
recommendations 4.7, 4.8, 4.9, and 4.10).
In every case involving a death;
In any case, when requested by the The release of past reports
affected person, or if that person is is a challenging issue. That
deceased, a family member of the is mainly because they
affected person; and were not drafted for public
In any other case, when requested by consumption.
any individual, if there is a significant
public interest (see recommendation 47. For coroners inquests, I recommend
6.12). that they also be mandatory whenever
45. The release of past reports is a chal- a police officers use of force is a direct
lenging issue. That is mainly because they contributor to the death of an individual
were not drafted for public consumption, (see recommendation 6.15). Further-
as they included information that should more, for families, I recommend that
be excluded in public reports. That means they be provided with funding for legal
executive summary | 11

representation at the inquest (see rec- Expanding the oiprds outreach pro-
ommendation 6.17). gram, which would include targeting
the general public and community
organizations that serve vulnerable
Chapter 7 Public complaint
people (see recommendation 7.2);
investigations
Working together with community
48. This is the first of two chapters that
groups and organizations to help
focus on the public complaints system.
complainants navigate the complaints
The next chapter addresses the adjudica-
process (see recommendations 7.4 and
tion of such complaints, while this chap-
7.5); and
ter deals with the process leading up to
adjudication. That includes a broad range Renaming the oiprd to something
of recommendations, including ones to that is more easily understood and
improve the oiprds accessibility, its better reflects its core functions (see
independence, its effectiveness, and its recommendation 7.1).
transparency and accountability. 51. I also say that the oiprd should have
the discretion to investigate a matter
For a complaint-driven without a public complainant in certain
process to be successful, that circumstances, including the following:
process must be accessible to When it is in the public interest to
complainants. do so;
If an investigation reveals misconduct
49. First, I make recommendations to other than that alleged in the com-
improve the oiprds accessibility. For a plaint itself; and
complaint-driven process to be successful,
On referral from the siu, a police chief,
that process must be accessible to com-
or a police services board (see recom-
plainants. Throughout my consultations,
mendations 7.10 and 7.11).
however, I heard that this was not always
the case. 52. In addition, I make recommenda-
tions related to who can and cannot make
50. To make the oiprd more accessi-
complaints, as well as about who may
ble, my recommendations include the
be the subject of such complaints (see
following:
12 Report of the Independent Police Oversight Review

recommendations 7.6, 7.7, 7.8, and 7.9). oiprd is largely a screening body and
53. Second, I make recommendations to not an investigative one.
improve the oiprds screening process 58. This, of course, is not the oiprds
(see recommendations 7.13, 7.14, 7.15, fault. It was never designed to investigate
7.16, 7.17, and 7.18). all public complaints. It does not have the
54. As part of the screening process, I say resources to do so.
that the oiprd should track complaints 59. In my view, that should change. All
to identify officers who are the subject public conduct complaints should be
of multiple complaints and complainants investigated by the oiprd. Independent
who file multiple complaints without investigation would help foster public
merit (see recommendation 7.19). trust in not only the complaints system,
55. Third, I make recommendations to but policing more generally.
increase the oiprds independence and 60. I recommend that within five years
appearance of independence. the oiprd should be the sole body to
investigate public conduct complaints
Independent investigation (recommendation 7.20). To do so, I also
would help foster public trust recommend that it be resourced accord-
in not only the complaints ingly (see recommendation 7.21).

system, but policing more 61. I further recommend that the oiprd
generally. should have the power to lay disciplinary
charges against police officers, rather than
56. During my consultations, many were having to direct a chief of police to do so
surprised to learn that a complaint made (see recommendation 7.25).
to the oiprd about an officer could be 62. Fourth, I make recommendations
referred back to that same officers police to ensure that the oiprd be able to
force for investigation. investigate effectively. These are similar
57. A commonly expressed view at my to my recommendations on the siu. I
consultations was that the police should say that there should be a duty for the
not be investigating police. Nonetheless, police to cooperate with the oiprd,
that is the current state of affairs. The and that the requirements of this duty
executive summary | 13

should be set out in legislation (see rec- including the outcomes and penalties
ommendations 7.27, 7.28, and 7.29). I imposed (see recommendation 7.39).
also recommend that there should be
a sanction for failing to cooperate (see
Chapter 8 Public complaint
recommendation 7.30).
adjudications
63. Fifth, I make recommendations
66. Trust in the public complaints pro-
aimed at enhancing the oiprds trans-
cess requires that public complaints be
parency and accountability. These include
fairly prosecuted and adjudicated.
recommendations to periodically report
to involved parties about the status of 67. During my consultations, however,
the complaint, to develop performance virtually all stakeholders agreed that the
metrics that are reportable to the pub- current system for prosecuting and adju-
lic, and to collect and publish summary dicating public complaints is not working
information on the outcomes of public and fails to promote public confidence.
complaints (see recommendations 7.33, 68. That system has the chief of police
7.34, 7.35, and 7.36). selecting both the prosecutor and the
64. Finally, I address systemic reviews adjudicator for disciplinary hearings
and monitoring. For systemic reviews, I arising out of public complaints.
recommend that the oiprd publish the 69. This arrangement causes serious
results and recommendations of its sys- concerns about real or apparent bias.
temic reviews in the form of a written A fair and effective public complaints
report (see recommendation 7.37). In adjudication system demands greater
addition, for greater accountability, I say independence and impartiality.
that a chief of police should be required
to respond in writing to the oiprds Virtually all stakeholders
recommendations, if designated to do agreed that the current system
so by the oiprd (see recommendation for prosecuting and adjudi-
7.38).
cating public complaints is not
65. For monitoring, I recommend that working and fails to promote
the oiprd monitor complaints and pub-
public confidence.
lish the results of disciplinary charges,
14 Report of the Independent Police Oversight Review

70. To achieve greater independence and litigants in the Divisional Court (see
impartiality, I recommend that public recommendation 8.5);
complaints be prosecuted by independent The prosecutor may settle complaints
prosecutors before independent adjudica- after the oiprd has laid a disciplinary
tors (see recommendations 8.1 and 8.3). charge, and the ocpc may direct that
71. Those prosecutors should be selected the parties engage in alternative dis-
and employed by the Ministry of the pute resolution, when appropriate (see
Attorney General, thereby enhancing recommendations 8.6 and 8.7); and
their independence from the chief of The ocpcs disciplinary hearing deci-
police. sions should be released as soon as
72. The independent adjudication should practicable and made available to the
be carried out by a renewed ocpc. The public (see recommendation 8.8).
ocpc is well-suited to this role. It is 74. I comment briefly in this chapter on
already an expert body of independent the interaction between the public com-
adjudicators with legal training and police plaints process I have recommended and
knowledge. Moving first instance disci- the current internal disciplinary process
plinary hearings for public complaints for police.
away from police services to the ocpc
would help foster confidence in the dis-
ciplinary system. Chapter 9 Coordinating oversight
and removing inefficiencies
73. In this chapter I also make the
following recommendations aimed at 75. This chapter is divided into two parts.
improving the public complaints adju- 76. The first part of the chapter addresses
dication process: overlap and existing inefficiencies by
The oiprd, complainants, and other making recommendations on the coor-
interested parties may seek leave to dination of investigations. That includes
intervene at ocpc disciplinary hearings recommendations on parallel investiga-
(see recommendation 8.2); tions and cross-referrals.

Reviews of ocpc decisions should


be limited to judicial review by the
executive summary | 15

SIU investigations should 80. Another area of overlapping inves-


take priority over all other tigation involves the chiefs of police.
By law, chiefs are required to review
investigations, especially
any matter where the siu was notified.
non-criminal investigations. Those reviews focus on whether there
are any conduct, service, or policy issues.
77. For parallel investigations, I say that
For these investigations, often called
siu investigations should take priority
section 11 investigations, I recommend
over all other investigations, especially
the following:
non-criminal investigations (see recom-
The section 11 reports should be made
mendation 9.1). When there is a parallel
public, subject to the same consider-
criminal investigation, a memorandum
ations for siu directors reports (see
of understanding between the siu and
recommendation 9.3);
the police services should set out the
mechanics of the investigations. When Police services should provide section
there is a parallel non-criminal investiga- 11 reports to the oiprd for review,
tion, such as an oiprd investigation, the which review could include directing
oiprd investigation should stand down further investigation, laying conduct
at the discretion of the siu. charges, or commenting publicly (see
recommendation 9.4); and
78. For cross-referrals, I recommend
that the siu should be authorized to Section 11 reports should be com-
refer conduct matters to the oiprd (see pleted as soon as is practicable (see
recommendation 9.6). While the siu recommendation 9.5).
should focus on its criminal investiga- 81. In the second part of chapter 9, I
tions, it would be a waste of resources make a series of recommendations to
to bar it from raising matters of concern reduce overlap and inefficiencies by
uncovered during its investigation. focusing the ocpc on its core adjudica-
79. Similarly, I recommend that the tive mandate.
oiprd should be able to refer matters
potentially falling within the sius man-
date to the siu (see recommendation 9.7).
16 Report of the Independent Police Oversight Review

In my view, the ocpc would 84. At the same time, I recommend


that the ocpc should not be foreclosed
be more effective and instill
in the future from adjudicating matters
greater public confidence
other than disciplinary hearings of public
in civilian police oversight complaints, when appropriate (see rec-
if it focused instead on an ommendation 9.8).
adjudicative role within its
expertise. Chapter 10 Indigenous peoples and
police oversight
82. Despite having a predominantly
85. As part of my mandate, I was asked
adjudicative focus centred on police dis-
to make recommendations on how to
ciplinary matters, the ocpc also engages
enhance cultural competency in the siu,
in a number of non-adjudicative activities.
oiprd, and ocpc in relation to their
It also has some adjudicative responsi-
interactions with Indigenous peoples.
bilities for which it has no particular
In my view, developing cultural compe-
expertise. As a result, the ocpcs current
tency is crucial to address systemic issues
mandate sometimes leads to confusion,
that have hindered positive Indigenous
the potential for the appearance of bias,
engagement with the oversight bodies.
and decision-making outside the ocpcs
core expertise. 86. Understanding the context of Indig-
enous-police relations is essential to
83. In my view, the ocpc would be more
understanding my recommendations in
effective and instill greater public con-
chapter 10.
fidence in civilian police oversight if it
focused instead on an adjudicative role 87. As a result, I begin this chapter by
within its expertise. Accordingly, I rec- providing background about the his-
ommend that non-adjudicative functions tory of Indigenous engagement with
and adjudicative functions for which it the police and police oversight bodies.
has no particular expertise should be I discuss how Indigenous peoples were
eliminated from the ocpcs mandate (see policed historically and how they are
recommendations 9.9, 9.10, 9.11, 9.12, policed today.
9.13, 9.14, 9.15, and 9.16).
executive summary | 17

In my view, developing enous persons and communities, and


cultural competency is crucial should be a permanent commitment
within each organization (see recom-
to address systemic issues
mendation 10.1).
that have hindered positive
92. Cultural competency, however, is
Indigenous engagement
not limited to learning about Indigenous
with the oversight bodies. peoples. It also is about recruiting and
Understanding the context of developing Indigenous staff (see recom-
Indigenous-police relations is mendation 10.3). And it requires applying
essential. a culturally-competent approach to ser-
vice delivery (see recommendation 10.4).
88. Next, I provide an overview of some 93. To assess the effectiveness of cultural
of the concerns Indigenous peoples competency and institutional change, I
shared with me about the civilian police also recommend that the oversight bodies
oversight bodies. develop an ongoing cultural competency
89. Then, I make recommendations audit process (see recommendation 10.5).
to enhance the cultural competency of 94. Sustained, proactive outreach and
the oversight bodies and to strengthen relationship-building are also key com-
the oversight system for First Nations ponents of cultural competency. Crucially,
policing. respectful relationships with Indigenous
90. Broadly speaking, Indigenous cul- peoples cannot be built at a time of crisis.
tural competency will require developing 95. I therefore recommend that the
the knowledge, self-awareness, and skills oversight bodies increase outreach to
to engage respectfully and effectively with Indigenous communities and establish
Indigenous peoples. meaningful and equitable partnerships
91. To accomplish greater cultural com- with Indigenous organizations (see rec-
petency, I recommend that the oversight ommendation 10.2).
bodies develop and deliver mandatory 96. Finally, effective civilian oversight
Indigenous cultural competency training of policing in First Nations communi-
for all of their staff. That training should ties is needed. During my consultations,
be developed in partnership with Indig- I repeatedly heard about the value of
18 Report of the Independent Police Oversight Review

First Nations policing in First Nations Chapter 11 Demographic data


communities. However, First Nations collection
Constables are not police officers within 99. As part of my mandate I was asked
the meaning of the Police Services Act. whether the police oversight bodies in
Similarly, First Nations police services Ontario should collect demographic data.
are not police forces. As a result, the
100. In my view, they should. And the
oversight processes largely exclude First
demographic data they collect should
Nations police and communities.
include gender, age, race, religion, ethnicity,
mental health status, disability, and Indig-
Effective civilian oversight
enous status (see recommendation 11.1).
of policing in First Nations
communities is needed. Data collection offers many
benefits. It supports evi-
97. The exclusion of First Nations polic-
ing from civilian oversight results in many
dence-based public policy and
First Nations communities not having decision-making, promotes
access to the same oversight mechanisms accountability and transpar-
as other Ontarians. This gap further exac- ency, and, if used properly,
erbates the distinction between policing may build public confidence in
for First Nations and policing for all
policing and police oversight.
other Ontarians.
98. In my view, consideration should be 101. Data collection offers many ben-
given to bringing First Nations policing efits. It supports evidence-based public
within the provinces civilian police over- policy and decision-making, promotes
sight mechanisms, subject to the opting accountability and transparency, and, if
in of individual First Nations (see rec- used properly, may build public confi-
ommendation 10.6). dence in policing and police oversight.
102. On this issue, Ontarios police
oversight system lags behind the United
States, the United Kingdom, and other
public sectors in Ontario.
executive summary | 19

103. Data collection raises a number of Police services boards are a


complicated issues. Because of that, I also vital component of the civilian
recommend creating an advisory commit-
police oversight system in
tee to work with the oversight bodies to
set up best practices (see recommendation
Ontario.
11.2). This includes practices relating to
107. The first is the selection and train-
the collection, management, analysis, and
ing of members of police services boards.
disclosure of the data.
Police services boards are a vital com-
104. Stakeholders such as community
ponent of the civilian police oversight
representatives, advocacy groups, law
system in Ontario. Yet the selection cri-
enforcement representatives, and academ-
teria for board members and the training
ics could work with the Ontario Human
provided to them is inconsistent. In my
Rights Commission, the Anti-Racism
view, the system would be strengthened
Directorate, and the Information and
by establishing consistent selection cri-
Privacy Commissioner to design a demo-
teria for board members and providing
graphic data regime.
them with mandatory training to equip
them with the skills and knowledge to
Chapter 12 Other forms of police be effective board members (see recom-
oversight mendations 12.1 and 12.2).

105. My Review focuses on improving 108. The second issue is the profession-
the transparency, accountability, and alization of policing. In my view, serious
effectiveness of the siu, oiprd, and consideration should be given to estab-
ocpc. These bodies, however, are part of lishing a College of Policing in Ontario
the broader police oversight system. as the professional body for policing, and
to modernizing the policing curriculum
106. During my consultations, I heard
(see recommendations 12.3 and 12.4).
about a number of police oversight issues
that did not relate directly to the three 109. A College of Policing would be a
bodies or fall squarely within the terms of valuable addition to the existing over-
my mandate. Given the oversight bodies sight regime in the province. It would
role within the broader system, I com- not eliminate the siu, oiprd, or ocpc.
ment on two further issues. Rather, it would complement the civil-
20 Report of the Independent Police Oversight Review

ian oversight system. It would do so by 110. Police services with well-trained,


developing a culture of professional- professionally-accredited members
ization through a more regulated body are well-suited and well-prepared to
that specializes in enhancing policing understand the problems, demands, and
standards and service. opportunities of policing. They should be
empowered to act proactively to identify
A College of Policing would and address individual or systemic issues
be a valuable addition to the before they escalate. And they should be
existing oversight regime in encouraged to set high professional stan-
dards to build public trust and confidence
the province.
in policing. A College of Policing would
help to achieve these aims.
part ii
The Context of this Review
CHAPTER 1

Introduction

23
24 Report of the Independent Police Oversight Review

1. The relationship between police and with the consent of the public, thereby
the communities they serve is at times providing officers with powers and legal
very complex. This is increasingly so defences unavailable to other citizens. In
within a pluralistic and diverse society. essence, the police are simply citizens in
2. Modern police are called on to respond uniform who ensure the welfare of the
to a wide range of challenging social issues. community.
These issues include domestic violence, 7. Thus the role of the police is not sim-
sexual assault, organized crime, human ply to prevent crime, but to serve and pro-
trafficking, child exploitation, guns and tect members of the community. To Sir
gang related crimes, and intervention in Robert Peel, this was seen as preferable to
mental health crisis situations. maintaining order through military force.
3. Modern day policing in Canada 8. Policing by consent recognizes that the
identifies its roots with the passage of exercise of special powers by the police
the Metropolitan Police Act in the United depends on public approval, also known
Kingdom in 1829, under the guidance of as legitimacy. The publics acceptance of
Sir Robert Peel.1 the polices role in society as legitimate
4. One of the cornerstones of modern is based on public trust and requires the
policing is that the police are the pub- respect and cooperation of the public.
lic and the public are the police. This 9. Sometimes, however, the police find
principle, associated with Sir Robert Peel, themselves in circumstances requiring
recognizes the indivisibility of the inter- the use of force, which may result in the
ests of the police and the public. death of a civilian.
5. It also underlies the basis for public 10. Other times, police contact with
confidence in the police. It recognizes members of the public may result in sit-
that the special authority bestowed on the uations in which a person feels that an
police is at the behest of the public and officer was rude or behaved in a manner
is to be exercised in the public interest. that was below the expected standard of
This is generally referred to as policing professionalism.
by consent. 11. For the public to have confidence
6. Policing by consent involves giving that the police will be held accountable
considerable authority to police officers for any wrongdoing, the investigation and
chapter 1 | Introduction 25

resolution of potential police misconduct provide the public with a mechanism


often requires the involvement of an out- for transparency and accountability in
side investigative body. policing. This includes addressing poten-
12. It is within this context that civil- tial police misconduct, be it criminal or
ian police oversight bodies operate in non-criminal.
Ontario. 18. The effectiveness of the civilian
13. While there has been some version police oversight bodies in Ontario can-
of civilian oversight in Ontario since not be looked at in isolation. Rather,
the establishment of the Ontario Police these bodies must be viewed in the
Commission in 1962, the landscape today context of the complex history which
is considerably more developed. shaped the perceptions of the affected
segments of the community that called
14. First, the Special Investigations Unit
for their establishment.
(siu) is an independent investigative
body charged with investigating police 19. We have come to view the police
officers potential criminality whenever in North America as an institution that
a police-civilian interaction results in evolved out of a uniform set of circum-
serious injury or death to a civilian. stances, with its main objective being to
serve and protect the community.
15. Second, the Office of the Indepen-
dent Police Review Director (oiprd), 20. The historical reality, however, is
and its predecessors, were established much more nuanced.
to oversee and manage complaints into
police conduct, policies, and services. The relationship between
Canadas Indigenous peoples
16. Third, the Ontario Civilian Police
Commission (ocpc) primarily adjudi- and the police is rooted in a
cates disputes related to police disci- history of distrust and conflict.
plinary decisions, in addition to fulfilling During my consultations,
a variety of other functions related to some described this distrust as
policing.
going back as many genera-
17. All three oversight bodies were tions as they could remember.
established to be arms-length, civil-
ian-administered bodies that would
26 Report of the Independent Police Oversight Review

21. To understand the perceptions of communities noted that historical dis-


policing held by members of some com- crimination has often placed them at
munities, it is important to consider how odds with the police, leading to fear and
policing developed and responded to their distrust. Within Black communities, there
communities. Two such groups are the is a prevailing perception that they have
Indigenous and Black communities. always been over-policed and targeted
22. The relationship between Canadas as criminals. This, some say, reinforces
Indigenous peoples and the police is insidious stereotypes associating Blacks
rooted in a history of distrust and conflict. with criminality.
During my consultations, some described 26. These perceptions are grounded in
this distrust as going back as many gen- historical reality. It is a little known fact
erations as they could remember. that Black people were considered prop-
23. Indigenous-police relations are erty well into the 1800s here in Canada.2
directly tied to a history of colonialism. Canada has its own legacy of slavery, not-
Often the face of colonialism was that withstanding Lieutenant Governor John
of a police officer, beginning with the Graves Simcoes call in 1792 for an end
North-West Mounted Police, and con- to its practice.3 A system of slave patrols,
tinuing through to modern police ser- sanctioned by the United States Congress
vices. Police officers came to Indigenous Fugitive Slave Act of 1850, pursued slaves
communities to enforce discriminatory and monitored Black people in general
laws and take away Indigenous children. as far north as Canada.4
Due in part to this unique history of 27. It is within this historical context
oppression, Indigenous peoples today that the Black communities relationship
are less likely to engage with the police with the police was formed and initially
or police oversight bodies. defined.
24. Members of Black communities also
recount a long history of discrimination, Within Black communities,
oppression, and marginalization, the there is a prevailing percep-
effects of which resonate to this day. tion that they have always
25. Similar to the concerns of the been over-policed and targeted
Indigenous peoples, members of Black as criminals.
chapter 1 | Introduction 27

28. By coming to grips with these his- large profession, inevitably there will be
torical realities, we can make sense of the individuals who act below expectation.
dynamics today between Black commu- The need to manage those individuals
nities and the police. at the earliest opportunity is particularly
29. I began this process against the back- compelling when the profession involved
drop of protests from Black communities is that of policing.
following the shooting of Andrew Loku
by the police. The publics voluntary
conferral of powers on the
30. Through my numerous consultations,
it became clear to me that the distrust police comes with a commen-
and skepticism felt by some communities surate right to ensure that
towards the police often extends to the those powers are being used
police oversight bodies. properly and effectively.
31. This includes the siu, where inves-
tigations rarely result in charges being 34. At the same time, there are problems
laid, with little explanation to the pub- of a systemic nature lying at the root of
lic. And it applies to the oiprd, where many challenges between the police and
the majority of conduct complaints are the community. Indeed, they are two
screened out or returned to the police for sides of the same coin and both must be
investigation. addressed directly and effectively.

32. All communities, including Black 35. The publics voluntary conferral of
and Indigenous communities, believe powers on the police comes with a com-
that the police perform a very import- mensurate right to ensure that those pow-
ant function in our society. At the same ers are being used properly and effectively.
time, they also believe that effective, This requirement of accountability has led
transparent civilian oversight is critical to increased adoption of various models
to maintaining both public trust in the of civilian oversight of police around the
police and police accountability to the world. While in many jurisdictions police
public. initially resisted civilian oversight, most
police today recognize its value.
33. The term bad apples arose often in
the course of this Review. As with any 36. In Ontario, civilian police oversight
28 Report of the Independent Police Oversight Review

is performed in large part by the siu, 40. Our society is governed by the rule
oiprd, and ocpc. An officer may be of law. That law applies to all members of
investigated by any of these three bodies. society, including members of our police
An officer also may also be sued civilly, services. I hope that the recommenda-
examined in coroners inquests, be sub- tions made in this report will restore the
ject to human rights complaints, or face confidence of the public in the police,
internal disciplinary proceedings. while also ensuring that complaints
37. Police action should not be judged and incidents are properly and fairly
from the viewpoint of a Monday morn- investigated.
ing quarterback.5 The job of a police 41. Nothing that I have said in this
officer is, at times, a very difficult one. report should be taken to detract from the
Sometimes it requires making life and rule of law as it applies to police officers.
death decisions in an instant. That said, The public should know that the same
there may be circumstances where the burden of proof applies in criminal inves-
actions of a police officer simply cannot tigations of police officers as in criminal
be justified. investigations of civilians. An account-
38. While the immediate concerns able and transparent process requires
that led to this Review relate mainly to nothing more, and demands nothing less.
the siu, I also have been tasked with 42. I have divided the report into twelve
reviewing the oiprd and ocpc. These chapters.
three bodies form an integral part of our 43. I continue on from this introduction
provinces police oversight system. with Chapter 2 Mandate and Meth-
39. This report focuses on recommen- odology, which sets out the scope of
dations to improve the transparency, this Review and touches on how it was
accountability, and effectiveness of those conducted.
three civilian police oversight bodies. It 44. Chapter 3 Background provides
is based on my broad consultation with a background information on policing and
number of stakeholders who made con- police oversight in Ontario.
tributions that are vital to my ultimate
45. Chapter 4 Composition of the
recommendations.
Oversight Bodies discusses the laws and
people that make up the oversight bodies.
chapter 1 | Introduction 29

46. Chapter 5 Effective Criminal ate more efficiently with each other and
Investigations clarifies the sius inves- others. It also discusses the ocpcs various
tigative mandate and the polices duty to functions.
cooperate with siu investigations. 51. Chapter 10 Indigenous Peoples
47. Chapter 6 Transparent and and Police Oversight provides historical
Accountable Criminal Investigations context on Indigenous peoples and the
focuses on improving the sius public police. It also reviews how the oversight
reporting on investigations. bodies could enhance their cultural com-
48. Chapter 7 Public Complaint petency in relation to their interactions
Investigations reviews the oiprds role in with Indigenous peoples.
overseeing the public complaint system. 52. Chapter 11 Demographic Data
49. Chapter 8 Public Complaint Collection explores whether the over-
Adjudications discusses how to improve sight bodies should collect demographic
the current system for adjudicating public data and, if so, how.
complaints, including the ocpc. 53. Finally, Chapter 12 Other Forms
50. Chapter 9 Coordinating Over- of Police Oversight touches on police
sight and Removing Inefficiencies looks services boards and the professionaliza-
at ways for the siu and oiprd to cooper- tion of policing.
CHAPTER 2

Mandate and Methodology

2.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2.200 Mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.210 The focus of the Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.211 Enhancing the police oversight bodies transparency and
accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.212 Ensuring the police oversight bodies are effective and
have clear mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.213 Reducing overlap and inefficiencies . . . . . . . . . . . . . . . . . . . 35
2.220 The boundaries of the Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

2.300 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.310 Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2.320 Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

31
32 Report of the Independent Police Oversight Review

2.100 Introduction it set out the terms of reference for the


1. Policing is complex. There are many Review in a legal document known as an
aspects of policing that could be reviewed Order-in-Council. That document can be
and potentially improved. Those include found in appendix B to this report.6
hiring practices, training, performance 5. Those terms of reference indicated not
evaluation, promotion, internal discipline, only what issues I was to consider and
and external oversight. For this Review make recommendations on, but also what
though, I have been asked to look into matters I was not to report on or express
external oversight only. In particular, I have conclusions about.
been asked to review part of the civilian 6. In the next sections, I first elaborate
police oversight system in Ontario. on the matters that I was asked to review.
2. In this chapter, I explain what exactly Then I touch on what matters fall outside
I was asked to do for this Review. I do the scope of the Review, and what matters
that in part to make it clear why I make were explicitly excluded from the Review.
recommendations about some things, but
not others.
2.210 The focus of the Review
3. Then, I describe my process for con-
7. The Review focuses on three police
ducting this Review. This includes touch-
oversight bodies and four broad areas for
ing on the research that went into this
improvement.
report. It also includes discussing the
Reviews consultation process, a process 8. The three police oversight bodies are
which involved meeting with a broad the Special Investigations Unit (siu),
range of stakeholders and interested Office of the Independent Police Review
persons across the province and beyond. Director (oiprd), and Ontario Civilian
In reviews like this one, the consultation Police Commission (ocpc).
process itself is of critical importance. 9. At first, the Review was to focus on
improving those oversight bodies in three
main areas:
2.200 Mandate
Enhancing their transparency and
4. When the Ontario government
accountability, while preserving fun-
appointed me as the Independent Reviewer,
damental rights;
chapter 2 | Mandate and Methodology 33

Ensuring they are effective and have Whether the three police oversight
clear mandates; and bodies should collect demographic
Reducing overlap and inefficiencies information. And, if so, how that
between them. should be done (see chapter 11).

10. And I was empowered to consider


anything else related to those areas. 2.211 Enhancing the police
Below, I explain what terms such as oversight bodies transparency and
transparency and accountability mean, accountability
and identify where those topics are 12. This section explains what is meant
addressed in the report.Later, the gov- by enhancing an oversight bodys trans-
ernment added a fourth broad category parency and accountability, and sets out
for me to review: where I make recommendations on this
How those bodies could enhance their subject in the report.
cultural competency when interacting 13. To operate transparently is to oper-
with Indigenous peoples (see chapter 10). ate in such a way that others are able to
11. In addition to the four broad areas see and understand what you are doing.
described above, the government asked Transparency, in the context of police
me to address the following issues: oversight, refers to being open, clear,
candid, accurate, and communicative. It
Whether the police oversight bodies
is the opposite of being secretive, ambig-
should employ former police officers
uous, or evasive.
(see section 4.720);
14. Accountability is related to
Whether the mandates of the three
transparency.
oversight bodies should be set out in
legislation separate from the Police 15. Accountability refers to a need to
Services Act (see section 4.210); account for ones actions. If an organi-
zation is transparent showing others
Whether the police oversight bodies
what it is doing and why that organi-
should share any information they
zation is being accountable as well. But
collect with each other. And, if so,
accountability also involves accepting
how that should be done (see section
responsibility for ones actions. And for
9.200); and
that to happen, it often requires that
34 Report of the Independent Police Oversight Review

somebody else is able to question your Police witnesses;


actions in the first place.
Civilian witnesses; and
Whether the past reports of the siu
So a transparent and account-
director should be released. And, if so,
able organization would be
how that should be done.
open about what it does, may
18. These issues are addressed in
be called on to account for its chapter6.
actions when appropriate, and
19. In addition to those issues, my rec-
can be held responsible when it ommendations for more transparent and
does not do what it should. accountable oversight include ones on the
following:
16. So a transparent and accountable
Increasing accountability measures for
organization would be open about what
the oversight bodies; and
it does, may be called on to account for
its actions when appropriate, and can be Making sure the public complaints
held responsible when it does not do what process is open and shares enough
it should. with the public.

17. In my terms of reference, the govern- 20. These issues are addressed in chapter
ment asked me to look into the following 6 and sections 4.800, 7.400, and 8.320.
issues on transparency and accountability:
Whether more information should be 2.212 Ensuring the police oversight
released to the public about siu inves- bodies are effective and have clear
tigations, including the siu directors mandates
reports. And, if so, how that should 21. This section explains what is meant
be done; by being effective and having a clear
Whether the names of the following mandate. It also sets out where I make
individuals should be released in an recommendations on this subject in the
siu investigation: report.

The officer who is the subject of the 22. Being effective means that you are
investigation; good at doing what you are meant to do.
chapter 2 | Mandate and Methodology 35

Or, in other words, it means that you are Addressing who they should have as
good at fulfilling your purpose. investigators and the training those
23. The purpose of the police oversight investigators should complete;
bodies, as I will elaborate on later, is to Finding ways that their mandates
enhance public trust in policing. Gener- could be clearer and better tailored to
ally, the oversight bodies aim to accom- their purpose;
plish that by investigating civilian-police Making sure it is easy for people to
interactions for misconduct or criminal access them;
conduct.
Providing them with simpler and faster
24. So, when I review the oversight bod- ways to collect evidence; and
ies to see if they could be more effective,
Reducing delay in investigations.
I am looking for changes that would let
them investigate police more effectively, 28. These issues are addressed in chapters
in a way that is fair to all affected parties. 4, 5, 7, 8, and 9.

25. One way to improve the effectiveness


of police oversight bodies is to ensure that 2.213 Reducing overlap and
they have clear mandates. inefficiencies
26. A mandate is an order, charge, or 29. I will briefly explain what it means
commission to do something. A clear to review the oversight bodies to reduce
mandate then is one where it is easy to overlap and inefficiencies.
understand what the something is that 30. Overlap and inefficiency are closely
an organization has been established or related.
ordered to do.
31. Overlap, in the police oversight con-
27. For effective oversight and clearer text, is when two organizations do the
mandates, I recommend changes dealing same thing.
with, among other things, the following:
32. Inefficiency happens when an orga-
Ensuring the oversight bodies are nization wastes time, energy, or resources.
independent enough from police and
33. So when two organizations overlap
government;
they may be inefficient: they may be wast-
ing time, energy, and resources.
36 Report of the Independent Police Oversight Review

34. Of course, an oversight body could able to suspend officers without pay, or
be inefficient wasteful of time, energy, the police practice known as carding or
or resources even if another body or street checks.
organization does not have overlapping 39. Also, the terms of reference for the
responsibilities. Review explicitly stated that I am not to
35. On this topic, I recommend changes report on any individual cases that are
dealing with, among other things, the being investigated or that were investi-
following: gated. Nor am I to express any conclusion
Providing for better sharing and coor- or make any recommendation about any
dination between oversight bodies; and specific professional discipline matter, or
about anyones civil or criminal liability.
Removing functions that the bodies
are not suited to do. 40. In short, my focus here is on improv-
ing the police oversight system, and not
36. These issues are addressed in
on reviewing whether anything went
chapter9.
wrong in an individual case.

2.220 The boundaries of the Review


2.300 Methodology
37. During my consultations, members
41. The process for this Review involved
of the public brought up a wide range
assembling a team, conducting research,
of policing matters. These discussions
consulting broadly, analyzing issues,
provided much-needed context for the
and making recommendations. The end
recommendations made in this Review.
product is this report, which is meant
However, at the same time, my mandate
to be read not only by the government
focuses on making improvements to the
of Ontario, but also by the people of
police oversight system in Ontario, not
Ontario, especially those who came out to
directly to the police themselves.
be heard during the consultation process.
38. For that reason, I do not make rec-
42. Below I briefly expand on two parts
ommendations on issues such as police
of the Reviews process. First, I touch
hiring practices, whether police should
on some of the research that went into
have more training on de-escalation tech-
my recommendations, as well as where
niques, whether police chiefs should be
chapter 2 | Mandate and Methodology 37

that research can be found in this report. maries of the police oversight systems in
Then I discuss the consultation process other jurisdictions in appendix C.
that so greatly enriched my understand- 47. Often my recommendations rely on
ing of police oversight, and accordingly best practices that I have identified from
informed my recommendations to those other jurisdictions. Other times, in
improve it. my discussion of the issues, I draw upon
the practices in other jurisdictions for
2.310 Research greater context.

43. For civilian police oversight, context


is crucial. To better appreciate civilian 2.320 Consultation
police oversight in Ontario, I researched 48. The terms of reference set out that
various areas relevant to this subject. I will I was to engage in public consultations,
highlight three such ones here. but that I would determine the method,
44. First, I reviewed the existing legis- content, and extent of the consultations
lation, processes, and practices of each required for this Review.
oversight body. This is reflected mainly
in chapter 3, and also throughout my I also understood that this
discussion on the oversight bodies. process would be seen as an
45. Second, I reviewed past reports that opportunity for stakeholders,
were relevant to civilian police oversight some who felt their frustra-
in Ontario. This too is reflected mainly in tions had gone unheard for too
chapter 3. And, when discussing issues
long, to have a chance to share
and making recommendations, I often
draw upon the insights of the past review- their experiences and offer
ers of civilian police oversight in Ontario. suggestions for improving
46. Third, I reviewed the police over- police oversight.
sight systems in other jurisdictions. This
included other police oversight systems 49. To me, context is always of critical
in Canada, as well as some from abroad, importance.
such as England and Wales, and North- 50. I also understood that this process
ern Ireland. I have provided short sum- would be seen as an opportunity for
38 Report of the Independent Police Oversight Review

stakeholders, some who felt their frus- 55. These meetings were recorded and
trations had gone unheard for too long, to posted to the Independent Police Over-
have a chance to share their experiences sight Review website (www.policeover-
and offer suggestions for improving police sightreview.ca).
oversight. 56. Through that website, some were able
51. Accordingly, it was very important to participate without being physically
for this Review to include the voices of as present at our meetings. The website pro-
many people as possible. I therefore com- vided information about the Review and
mitted to holding an open, transparent, the oversight bodies. And it allowed for
extensive, engaging, and accommodating concerned individuals to make submis-
consultation process. sions directly to the Review.
52. To do so, I held both public and pri- 57. In addition, the Review engaged
vate consultations. Together with some in social media. The Review did so by
of my team, I travelled all over Ontario: providing live-updates of public consul-
as far north as the Pikangikum First tations through Twitter (@IPOReview),
Nation, as far west as Kenora, as far east as well as by maintaining active profiles
as Ottawa, and as far south as Windsor. on Facebook and Instagram.
53. In over seven months, I met with 58. In private consultations, my team and
more than 1,500 individuals. I did so I were able to discuss issues candidly and
in 17 public consultations and over 130 in-depth with a broad range of experts and
private meetings. stakeholders. This included consultations
54. The public consultations were with the following individuals and groups:
designed to allow anybody that had The families of individuals whose
an interest in police oversight to come deaths were caused by the police;
forward and be heard. They took place Policing stakeholders such as police
in the following locations: North York, associations, chiefs of police, police
Scarborough, York, Thunder Bay, Bramp- commissioners, and police services
ton, Mississauga, Sudbury, Ottawa, Ajax, board members;
Hamilton, Toronto, Windsor, London,
Black and other racialized communi-
Kingston, Oshawa, Thornhill, and
ties such as the Arab, Somali, South
Kitchener.
Asian, and East Asian communities;
chapter 2 | Mandate and Methodology 39

Indigenous communities, including Representatives from various faith


those living in urban communities and communities such as the Sikh, Muslim,
those living on reserve, Chiefs, Elders, Jewish, and Christian communities;
band council members, Indigenous Representatives from the lgbtq
service providers, First Nations Con- community;
stables, First Nations police services
Domestic violence and sexual assault
chiefs, and First Nations police services
survivors, as well as their supporters
board members;
and advocates; and
Legal clinics;
Leadership and staff of police oversight
Government officials from Ontario, bodies in Ontario, the rest of Canada,
other provinces in Canada, and the and the United Kingdom.
United Kingdom;
59. In the end, those people who met
Educators and parent groups; with me greatly informed my under-
Experts and academics, including standing of police oversight and shaped
experts and academics on demographic my recommendations to improve it. For
data collection; this report, those people were not merely
Mental health service providers, sur- helpful, but absolutely essential. For that,
vivors, and consumers; I am deeply grateful.

Youth and youth workers;


CHAPTER 3

Background

3.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

3.200 Policing in Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42


3.210 Municipal police officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.220 Municipal chiefs of police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.230 opp officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.240 The opp Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.250 Other key police service providers . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.251 Special constables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.252 Auxiliary members of a police force . . . . . . . . . . . . . . . . . . . 45
3.260 Police associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
3.270 Police services boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.280 The Ontario government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

3.300 How the current system of civilian oversight operates . . . . . . . . . . . . 48


3.310 The siu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
3.320 The oiprd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3.330 The ocpc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

3.400 Civilian police oversight in other jurisdictions . . . . . . . . . . . . . . . . . . 55

3.500 The history of civilian police oversight in Ontario . . . . . . . . . . . . . . . 55

41
42 Report of the Independent Police Oversight Review

3.100 Introduction chief of police and overseen by a police


1. Who are the police? And who over- services board.
sees them? In this chapter, I answer those 8. Altogether, there are about eighteen
questions. thousand municipal police officers out
2. I begin by providing an overview of of roughly twenty-six thousand police
policing in Ontario. I then discuss the officers in the province. The largest
roles and functions of the siu, oiprd, municipal police service is the Toronto
and ocpc, as well as their histories. Police Service, with more than five
thousand uniformed officers. Many
municipal police services are much
3.200 Policing in Ontario smaller though. For example, the
3. Police oversight is intertwined with Espanola Police Service in northern
policing itself. To better understand Ontario has only a dozen police officers,
police oversight then, it helps to know including the chief.9
how policing works in Ontario. 9. These police officers are responsible for
4. The blueprint for policing in the prov- all aspects of municipal policing, includ-
ince is set out in the Police Services Act.7 ing the following:

5. In this section I will draw from that Patrolling neighbourhoods;


blueprint and touch on some of the main Responding to calls for service;
actors in Ontarios policing system, includ-
Detecting, preventing, and investigat-
ing the police officers themselves, the asso-
ing crime;
ciations that represent them, police services
Enforcing municipal by-laws;
boards, and the Ontario government.
Laying charges and participating in
prosecutions; and
3.210 Municipal police officers
Assisting victims of crime.10
6. Municipal police officers are the police
officers who work for municipal police
services. 3.220 Municipal chiefs of police
7. There are about sixty municipal police 10. Each municipal police service has
services in Ontario.8 Each is headed by a a chief of police, who is chosen by the
chapter 3 | Background 43

municipal police services board.11 The officer subject to the complaint.13 Then
chief has four main duties: the chief has the complaint investigated.
To run the police service according to If the complaint is substantiated, then
the objectives, priorities, and policies the chief decides if it is serious or not. If
established by the municipal police it is not serious, then the chief may try
services board; to informally resolve the matter with the
officer.14
To ensure that members of the police
service perform their duties according 14. For serious matters though, the chief
to the Police Services Act, in a manner must hold a hearing. At that hearing, the
that reflects the needs of the commu- chief chooses the prosecutor and the
nity, and maintains discipline; adjudicator, although the chief may act
as the adjudicator instead.15 The police
To ensure that the police service
officer is usually represented by a lawyer.
provides community-oriented police
services; and
3.230 opp officers
To administer the complaints system.12
15. Municipalities have their own police
11. The last duty, administering the
officers, and so too does the province.
complaints system, includes two different
types of complaints that are relevant to 16. The Ontario Provincial Police (opp)
this Review: public complaints (discussed is the second largest police service in
further in section 3.320), and internal the country, after the Royal Canadian
complaints. Mounted Police (rcmp).16 It has just
over six thousand police officers. As
12. Internal complaints are complaints
the provincial police, these officers are
made by the chiefs themselves. The chief
responsible for the following:
will use the internal complaint system
to discipline police officers for miscon- Patrolling provincial highways and
duct or unsatisfactory work performance, waterways;
including demoting, suspending, or ter- Investigating major crimes that stretch
minating a police officer. across the province, the country, or the
13. The chief generally begins the inter- world (such as organized crime, human
nal complaint process by notifying the trafficking, and drug smuggling); and
44 Report of the Independent Police Oversight Review

Providing support to municipal police 3.250 Other key police service


forces for major cases. providers
17. In addition, the opp provides local 21. Other key police service providers
police services for some communities that in Ontario include First Nations Con-
do not have their own municipal police stables, special constables, and auxiliary
service.17 It also provides local police members of a police force.
services to municipalities that have con- 22. Though they provide services that
tracted it to do so.18 In those cases, opp may traditionally be associated with
officers generally have the same respon- police, they are not police officers under
sibilities as municipal police officers.19 the Police Services Act.23 As such, neither
18. Instead of a police chief, the opp the siu nor oiprd have the jurisdiction
is headed by a commissioner. It has its to investigate their conduct.
headquarters in Orillia, with regional 23. I discuss First Nations policing,
detachments all over the province. including the role of First Nations Con-
stables, in section 10.230. I will briefly
3.240 The opp Commissioner touch on special constables and auxiliary
members of a police force here.
19. The opp Commissioner is appointed
by the province.20 The opp Commissioner
has the general control of the opp, sub- 3.251 Special constables
ject to direction from the Minister of 24. Special constables provide police-like
Community Safety and Correctional services, but they are not police officers.
Services.21 They may be appointed by the opp Com-
20. For internal complaints, the opp missioner or by a police services board.24
Commissioner has the same role and 25. Special constables commonly fulfill
responsibilities as a municipal chief of some of the following roles:
police.22
Campus security for colleges and
universities;
Court security;
Prisoner transport; and
Community housing security.
chapter 3 | Background 45

26. Although special constables are not rized them to perform police duties.27
police officers, they may be granted the This authorization requires special cir-
powers of a police officer to the extent cumstances.28 In practice, this means
needed to satisfy the purpose of their that it is relatively rare for an auxiliary
appointment.25 For example, a special member to discharge a firearm or oth-
constable may be authorized to use rea- erwise use force on a civilian.
sonable force to carry out their court
security duties.
3.260 Police associations
27. Special constables often work
31. The Police Services Act prohibits
together with police officers. However,
police officers and employees of police
as noted above, they are not subject to the
services from joining trade unions.29
same oversight regime as police officers.
Instead members of police services have
This means that for the same incident, a
police associations that promote their
police officer would be investigated by
interests.
the siu, while the special constable could
be investigated by the local police service 32. Police associations advocate on
itself. behalf of their members in a variety of
ways, including lobbying internal and
external decision-makers to influence
3.252 Auxiliary members of a police them on issues affecting their members.30
force They also assist their members with dis-
28. Auxiliary members of a police force cipline matters and siu investigations.
are typically unpaid volunteers. For example, a police association repre-
29. Auxiliary members, like special con- sentative may help arrange for a lawyer
stables, may be appointed by the opp for an officer under investigation.
Commissioner or by a police services 33. There are many different police
board, although a board requires minis- associations in Ontario. Generally, each
terial approval to do so.26 municipal police service has an associa-
30. Auxiliary members may have the tion representing its members, such as
authority of a police officer, but only if the Ottawa Police Association. Many
that member is supervised by a police of these associations are then affiliated
officer and the chief of police has autho- with the provincial association, the Police
46 Report of the Independent Police Oversight Review

Association of Ontario. This arrangement 38. Municipal police services board


allows the local association to focus on members recruit and appoint the munic-
local issues, and the provincial association ipal chief of police and deputy police
to focus on provincial issues. A notable chiefs.33 They direct the chief and monitor
exception is the Toronto Police Asso- their performance, and they appoint the
ciation, which is not affiliated with the members of the municipal police force.34
provincial association. 39. opp police services board members
34. opp officers have their own associa- do not directly hire their detachment
tion as well, the Ontario Provincial Police commander or officers, but they do par-
Association. ticipate in the selection of the detach-
35. There is also a separate police asso- ment commander and monitor their
ciation for senior officers the Ontario performance.35
Senior Officers Police Association. And 40. Police services boards also have an
there is an association for chiefs of police important role in the public complaints
the Ontario Association of Chiefs of system. Municipal police services boards
Police. These associations aim to serve the establish guidelines for dealing with both
specific needs of their members. public and internal complaints, and
review the police chief s administration
of the complaints system.36
3.270 Police services boards
41. Municipal police services boards also
36. Police services boards work in
consider complaints against municipal
municipalities that have a municipal
police chiefs and deputy police chiefs,37
police force, a joint police force with other
review the police chief s disposition of a
municipalities, or a contract with the opp
policy or service complaint at the com-
for the provision of police services.31
plainants request,38 and adjudicate requests
37. Board members have broad responsi- to serve a notice of a disciplinary hearing on
bility to oversee how policing is provided a police officer if more than six months have
in their communities. They determine passed since a complaint was initiated.39
objectives and priorities and set policies
42. For their part, opp police services
for police services after consulting with
boards review the detachment command-
the chief of police or opp detachment
ers administration of the complaints sys-
commander, as applicable.32
chapter 3 | Background 47

tem40 and their disposition of local policy known as the cabinet, can make laws by
complaints at a complainants request.41 regulation that provide additional details
not covered in a statute, but without the
need for parliamentary debate and a vote.
3.280 The Ontario government
48. For example, while the siu was cre-
43. Both the police services and boards
ated by a statute, the conduct and duties
are overseen in turn by the Minister of
for siu investigations have been further
Community Safety and Correctional
defined in a regulation.44
Services, formerly known as the Solicitor
General.42 That minister was designated 49. The Ontario legislature has declared
as the minister responsible for policing that policing in Ontario should be pro-
by the Legislative Assembly of Ontario. vided in accordance with the following
principles:
44. The Legislative Assembly of Ontario,
also known as the Ontario legislature, The need to ensure the safety and security
is made up of all members of provincial of all persons and property in Ontario;
parliament who are elected throughout The importance of safeguarding the
the province. fundamental rights guaranteed by the
45. Ultimately, the Ontario legislature Canadian Charter of Rights and Free-
has the power to make all the laws that doms and the Human Rights Code;
govern policing and police oversight in The need for cooperation between the
the province. Its power in that regard is providers of police services and the
absolute, so long as it does not conflict communities they serve;
with Canadas constitution.
The importance of respect for victims
46. The legislature exercises that power of crime and understanding their
by creating laws known as statutes, such needs;
as the Police Services Act.
The need for sensitivity to the plu-
47. For certain policing matters, the leg- ralistic, multiracial, and multicultural
islature has delegated authority to make character of Ontario society; and
regulations.43 This typically means that
The need to ensure that police forces
the Premier of Ontario, a minister, or the
are representative of the communities
Lieutenant Governor in Council, also
they serve.45
48 Report of the Independent Police Oversight Review

50. The Ontario legislature also has set 3.310 The siu
out the responsibilities of the Minister 54. Established in 1990, the siu is a
of Community Safety and Correctional civilian body, independent of the police.
Services in overseeing policing services. The siu is, in practice, an arms length
These include monitoring police forces agency of the Ministry of the Attorney
to ensure they provide adequate and General47 with jurisdiction extending to
effective police services, developing and all police officers in Ontario.48
promoting programs to enhance profes-
55. The siu is mandated to conduct
sional police standards and training, and
investigations into the circumstances
inspecting and reviewing police forces.46
of serious injuries and deaths that may
have resulted from criminal offences
3.300 How the current system of committed by police officers, including
civilian oversight operates allegations of sexual assault.49
51. My mandate for this Review is to 56. It has the power to investigate police
examine three civilian police oversight officers and lay criminal charges against
bodies in Ontario: the siu, oiprd, and them if there are reasonable grounds to
ocpc. do so.50
52. These three independent bodies, 57. The legislative framework for the
established under the Police Services Act, siu is set out in section 113 of the Police
share responsibility for civilian police Services Act. Ontario Regulation 267/10
oversight in the province. They play a (Conduct and Duties of Police Officers
critical role in overseeing the police and Respecting Investigations by the Special
promoting a positive relationship between Investigations Unit) further specifies the
the police and the public. responsibilities and duties of police offi-
53. The legislative framework and oper- cers during siu investigations.
ations of the siu, oiprd, and ocpc are 58. The siu is led by a director, who is
discussed below. appointed by the Lieutenant Governor
in Council and must never have been a
police officer.51
59. siu investigators may be former
chapter 3 | Background 49

police officers, but they cannot be current counsel or a representative of the police
police officers. They cannot participate association and to have counsel or a rep-
in investigations involving a member of resentative attend their interview with
their former police force.52 the siu.59 Subject officers need to have
60. When an incident that could rea- different counsel than witness officers.60
sonably fall within the sius investigative 65. The siu is not allowed to make public
mandate occurs, the siu must be notified statements about an investigation during
immediately.53 The scene of the incident the course of the investigation, unless the
is secured for the siu investigators.54 And statement is to preserve the investiga-
the officers involved are segregated from tions integrity.61 Police forces are similarly
one another until the siu has completed barred from disclosing any information
its interviews with them.55 about the incident or investigation, except
61. Members of police forces must to say the siu has been notified and is
cooperate fully with the siu in the conducting an investigation.62
conduct of investigations.56 66. Following the investigation, if the
62. The regulation distinguishes between siu director determines that there are
subject officers, whose conduct appears reasonable grounds to believe that an
to have caused the death or serious injury officer has committed a criminal offence,
under investigation, and witness officers, they will charge the officer.63 The case is
who are involved in the incident but not then transferred to Crown counsel for
a subject officer.57 prosecution. Crown counsel will screen
the charge to determine whether there
63. Both subject officers and witness
is a reasonable prospect of conviction
officers must complete their notes on the
and whether it is in the public interest
incident in accordance with their duties,
to proceed with the prosecution.64
but only witness officers have a duty to
provide their notes to and be interviewed
From 2002 to 2016, the
by the siu.58 Subject officers do not have
siu was involved in 3,932
the same obligation, but may voluntarily
provide their notes or be interviewed. incidents and laid charges in
64. Both subject officers and witness
129 cases.
officers have a right to consult with legal
50 Report of the Independent Police Oversight Review

67. The siu director must report the 3.320 The oiprd
results of all investigations to the Attor- 70. The oiprd has operated the public
ney General.65 When no charges are complaints systems against the police
laid, the siu director gives the Attorney since 2009. It is an independent, neutral,
General a written report describing all the arms length agency of the Ministry of
evidence and the rationale for their final the Attorney General.67
decision. Generally, only the Attorney
71. The legislative framework for the
General receives a copy of the report.
oiprd is set out in the Police Services
68. From its inception in late 1990 to Act and its regulations. Part II.1 of that
the end of 2016, the siu was involved in act establishes the oiprd and sets out
5,775 incidents:66 its investigative powers. Part V, which
142 incidents related to firearm deaths, was originally designed for disciplinary
or about 5 firearm-death incidents proceedings in an employment context,
each year; now addresses both public and internal
249 incidents involved firearm injuries; complaints and disciplinary proceedings.

527 incidents involved custody deaths; 72. Under the legislation, the oiprd is
led by the Independent Police Review
2,851 incidents involved custody
Director.68 The director is appointed by
injuries;
the Lieutenant Governor in Council and
210 incidents involved vehicle deaths; must never have been a police officer.69
1,054 incidents involved vehicle 73. oiprd staff cannot be current police
injuries; officers.70 That said, former police officers
591 incidents involved sexual assault can and do work at the agency.71
complaints; and 74. The oiprds oversight role begins
33 incidents involved other injuries or with the receipt of a public complaint.
deaths. Members of the public may complain to
the oiprd about a police officers conduct
69. From 2002 to 2016, the siu was
or a police forces policies or services.72
involved in 3,932 incidents and laid
charges in 129 cases. 75. Before a complaint is formally
screened, the oiprd will review it to
chapter 3 | Background 51

determine whether it is suitable for plaints may be retained by the oiprd,


customer service resolution. Customer referred to the chief of police of the police
service resolution is a voluntary process force to which the complaint relates, or
where the parties, aided by an experienced referred to the chief of police of a differ-
facilitator or mediator, discuss and try to ent police force.79
resolve the complaint.73 If a complaint is 79. Conduct complaints about a munic-
not suitable for resolution through cus- ipal chief of police or deputy chief of
tomer service resolution or if customer police are referred to the relevant police
service resolution is unsuccessful, the services board.80 Complaints about the
complaint enters the screening process. opp Commissioner or a deputy opp
76. Complaints are presumptively Commissioner are referred to the Min-
screened in and reasons must be given ister of Community Safety and Correc-
if the oiprd decides not to deal with a tional Services.81
complaint.74 Complaints may be screened 80. At any time during the investigation
out on a variety of grounds, such as being of a conduct complaint, the complaint
frivolous or vexatious, made more than six may be resolved informally. This requires
months after the event in question, not the consent of the complainant and police
in the public interest, or not within the officer, the oiprds approval, and that the
oiprds jurisdiction.75 During the course conduct not be of a serious nature.82
of an investigation, a complaint may be
81. In practice, the majority of com-
closed for the same reasons.76
plaints received and screened in by the
77. Policy and service complaints that oiprd are referred to the police chief
are screened in are referred back to the of the police force that the complaint is
relevant municipal chief of police, opp about.83 The police forces professional
Commissioner, or local opp detach- standards unit then investigates and
ment commander.77 The oiprd does provides a report to the police chief.84
not have the authority to investigate
82. If the chief determines that the
these complaints, but is notified of their
complaint is unsubstantiated, no further
disposition.78
action is taken except to notify the com-
78. For conduct complaints, the oiprd plainant, the police officer subject to the
has different options available. Com- complaint, and the oiprd.85
52 Report of the Independent Police Oversight Review

83. If the chief believes on reasonable 88. Following its investigation, the
grounds that the officers conduct consti- oiprd will provide a report to the chief
tutes misconduct or unsatisfactory work of police. The report must say whether
performance, the matter will proceed to or not the oiprd has substantiated the
a disciplinary hearing, unless the miscon- complaint.93 If the complaint is substanti-
duct or unsatisfactory work performance ated, the oiprd must indicate whether it
is deemed not to be of a serious nature.86 believes the misconduct or unsatisfactory
84. A complainant who disagrees with work performance was serious in nature.94
the determination that their complaint is 89. Matters that are not of a serious
unsubstantiated or that the misconduct nature may be informally resolved. Oth-
is not of a serious nature may request erwise, a substantiated complaint will
that the oiprd review the matter.87 If proceed to a disciplinary hearing.95
the oiprd agrees with the complainant, 90. Disciplinary proceedings are con-
it instructs the chief of police on how to ducted by police services and follow the
deal with the complaint. This may include same procedure whether they stem from
directing a hearing.88 a public complaint or an internal com-
85. Conduct complaints that are referred plaint. The proceedings are characterized
to another chief follow a similar process, primarily as employment matters and not
except that the investigation and report criminal or penal proceedings.96
are done by that other police force and 91. The parties to a disciplinary hearing
then provided to the officers chief for are the prosecutor, the involved police
further action.89 officer, and the complainant.97 The oiprd
86. The oiprd has the right, after refer- is not a party, even if it conducted the
ring a complaint to any chief of police investigation or directed the hearing.
and before a hearing, to direct the way The chief of police designates both the
the complaint is dealt with.90 prosecutor and the hearing officer.98
87. When the oiprd retains a conduct 92. A police officer is guilty of miscon-
complaint, it conducts its own investiga- duct if they commit an offence described
tion.91 The oiprd has various investiga- in the Code of Conduct or engage in
tive tools, including summons powers.92 an activity set out in the legislation.99
Misconduct or unsatisfactory work per-
chapter 3 | Background 53

formance may be found to have occurred retained 168 complaints;


only on clear and convincing evidence.100
referred 1,008 complaints to the
This is a higher standard than a balance same police service; and
of probabilities.101
referred 7 complaints to another
93. If a police officer has engaged in mis- police service.106
conduct, they may be dismissed, demoted,
96. Between April 1, 2014 and March 31,
suspended, required to forfeit pay or days
2015, 734 conduct complaint decisions
off, or any combination thereof.102 In
were issued involving 2,802 allegations:
addition, the officer may be reprimanded,
directed to undergo specified counsel- 620 complaints were found to be
ling or training, ordered to participate unsubstantiated;
in a specified program or activity, or any 77 complaints were found to have at
combination thereof.103 least one substantiated allegation of a
94. The police officer and complainant both less serious nature and no substantiated
have a right of appeal to the ocpc, but the allegations of a serious nature; and
chief of police and the oiprd do not.104 37 complaints were found to have at
95. Between April 1, 2014 and March least one substantiated allegation of a
31, 2015, the oiprd received 2,926 serious nature.107
complaints: 97. In addition, the oiprd has the power
143 complaints were successfully to examine and review systemic issues
resolved by customer service resolution; revealed by public complaints.108 Between
April 1, 2014 and March 31, 2015, the
1,440 complaints were screened out,
oiprd undertook further work on two
including 677 complaints determined
existing systemic reviews: the use of force
not to be in the public interest;
when dealing with people in crisis and
1,280 complaints were screened in, a now-completed systemic review on
including 1,183 conduct complaints, practices for dna canvasses.109
20 policy complaints, and 77 service
complaints;105 and
3.330 The ocpc
Of the 1,183 conduct complaints, the
oiprd 98. The ocpc is an independent, quasi-ju-
dicial oversight agency. Operational since
54 Report of the Independent Police Oversight Review

2009, it is the successor of the Ontario Adjudicating disciplinary appeals of


Civilian Commission on Police Services, hearings conducted by police services
which was created in the 1990s as the suc- that arise from public and internal
cessor of the Ontario Police Commission, complaints;116
founded in the early 1960s.110 Adjudicating appeals from employees
99. Since 2013, the ocpc has been clus- who have been discharged or retired
tered with other adjudicative tribunals due to disability;117
within the Safety, Licensing Appeals and Approving municipal detention
Standards Tribunals Ontario.111 It reports facilities;118
to the Ministry of the Attorney General.
Investigating, inquiring into, and
Its members are appointed by the Lieu-
reporting on certain policing matters,
tenant Governor in Council through a
including the conduct of police officers
competitive, merit-based process.112
and police services board members;119
100. The ocpc was established pursuant
Investigating, at the direction of the
to part II of the Police Services Act. Its
Lieutenant Governor in Council,
powers and duties are set out in various
any matter relating to crime or law
provisions of the legislation.
enforcement;120
101. Broadly speaking, the ocpc is given
Directing municipal police forces and
statutory authority to engage in a range
police services boards to comply with
of activities, including hearing appeals of
prescribed standards of police services
police disciplinary decisions,113 adjudi-
and imposing sanctions for failing to
cating budget disputes,114 and conduct-
comply with these standards;121
ing investigations and inquiries into the
conduct of police officers, chiefs of police, Directing internal complaints about
and members of police services boards.115 the conduct of a police officer;122

102. Subsection 22(1) of the Police Ser- Performing various administrative


vices Act provides a summary of some of functions involving the budgets
the ocpcs various statutory powers and and the structure of police services,
duties. The specific components of the including resolving certain budgetary
ocpcs statutory mandate include the disputes;123
following:
chapter 3 | Background 55

Performing certain specialized labour 106. Finally, the ocpcs investigative


relations functions involving police and inquiry powers also are used much
forces;124 less frequently than its authority to hear
Approving the appointment of and disciplinary appeals.
terminating and suspending First
Nations Constables;125 and
3.400 Civilian police oversight in
Reviewing public complaints relat- other jurisdictions
ing to matters that arose prior to the
107. Ontario is not the only jurisdiction
oiprds creation in 2009.
with civilian police oversight. As part of
103. The long and varied list shows that my review, I examined oversight systems
the ocpc has a multi-function statutory in other jurisdictions. I have included
mandate. short summaries of some of these systems
104. Notwithstanding this broad man- in appendix C.
date, the majority of the ocpcs activities
relate to hearing disciplinary appeals.
3.500 The history of civilian
Police officers and, in the case of pub-
police oversight in Ontario
lic complaints, complainants, have the
right to appeal the decision of a hearing 108. The establishment and evolution of
officer.126 At the appeal, the ocpc may the siu, oiprd, and ocpc are the result
confirm, vary, or revoke the hearing offi- of significant consultation, much debate,
cers decision, substitute its own decision, and a number of reviews over the last
or order a new hearing.127 several decades. In response, governments
have amended and built upon existing
105. The ocpcs powers to conduct
legislation. The result is a patchwork of
hearings about matters such as police
civilian police oversight in the province.
budgets, the structure of police services,
the accommodation of disabilities, 109. The siu, oiprd, and ocpc are a
membership in a bargaining unit, and product of this history. Their development
whether the standards of police services provides context for this Review and my
in a community have been met, occupy a recommendations going forward.
much smaller amount of the ocpcs time
compared to disciplinary appeals.
56 Report of the Independent Police Oversight Review

The establishment and duties trace their origin to the Ontario


evolution of the siu, oiprd, Police Commission.131

and ocpc are the result of 112. During the 1960s and 1970s, civil-
ian oversight of policing was the subject
significant consultation, much
of increased public interest. A series of
debate, and a number of
reviews at the time called in particular for
reviews over the last several a greater civilian component in the public
decades. In response, gov- complaints system against police.132
ernments have amended and 113. In 1977, the government responded
built upon existing legislation. by introducing a bill proposing a prov-
The result is a patchwork of ince-wide complaints system that
civilian police oversight in the included greater civilian involvement.
The bill, however, did not pass.133
province.
114. The following year, the Ontario
110. The ocpc has the deepest histor- Police Commission, working in con-
ical roots among the oversight bodies. sultation with police forces, was asked
Although the ocpc has only been opera- to develop voluntary procedures for the
tional since 2009, it is the successor of the handling of complaints.134 Those proce-
Ontario Civilian Commission on Police dures were adopted in whole or part by
Services, and before that, the Ontario many local boards of commissioners of
Police Commission.128 police (the predecessors to todays police
services boards).135
111. The Ontario Police Commis-
sion was created in 1962, before the 115. The changes, however, did not fully
establishment of the Ministry of the satisfy the concerns of some members of
Solicitor General (now the Ministry of the public. This was especially the case
Community Safety and Correctional in Toronto, where police shootings and
Services).129 The Ontario Police Com- allegations of police misconduct, particu-
missions original mandate was to play larly in Black communities, were causing
a general watch-dog role over law obser- the police-community relationship to
vance and enforcement in Ontario.130 deteriorate.136
Today, some of the ocpcs powers and
chapter 3 | Background 57

116. Further reports followed about the During the 1960s and 1970s,
need to include civilian participation in civilian oversight of policing
the public complaints process. In 1981,
was the subject of increased
the government responded by passing
legislation creating a pilot project for
public interest. A series of
handling public complaints in Toronto.137 reviews at the time called
The legislation established the Public in particular for a greater
Complaints Commissioner, a role made civilian component in the
permanent in 1984.138 public complaints system
117. The Office of the Public Com- against police.
plaints Commissioner monitored the
handling of complaints about the police 120. One of the recommendations was
in Toronto, performed initial investiga- the creation of an investigative team to
tions in limited circumstances, reviewed investigate police shootings in Ontario
certain decisions made by the police ser- comprised of both civilian members
vice, and referred cases to an independent drawn from government investigative
civilian board of inquiry for adjudication agencies and homicide investigators not
if doing so was in the public interest.139 from the force involved in the shooting.142
118. In 1988, after more deadly shoot- The task force further noted an ongoing
ings involving members of Black com- demand for mandatory, province-wide
munities, the government appointed independent civilian review of allegations
Justice Clare Lewis to chair a task force of police misconduct and the extension of
to address promptly the very serious con- the Public Complaints Commissioners
cerns of visible minorities respecting the jurisdiction beyond Toronto.143
interaction of the police community with 121. In 1990, the government responded
their own.140 to the recommendations by passing new
119. In its 1989 report, the task force legislation, the Police Services Act.144 Nota-
made a series of recommendations to bly, the new legislation set up a special
improve the relationship between the investigations unit to investigate police
police and Black and other racialized shootings. The units mandate was to
communities.141 conduct investigations into the circum-
58 Report of the Independent Police Oversight Review

stances of deaths and serious injuries that 125. The next year, the government
may have resulted from criminal offences commissioned Roderick M. McLeod
committed by police officers.145 to conduct a review of civilian oversight
122. In addition, the new legislation gave of policing in Ontario. His report made
province-wide authority to the Public several further recommendations to
Complaints Commissioner, now renamed change the oversight system, including
the Police Complaints Commissioner.146 streamlining the various civilian oversight
And it clarified the structure, powers, and agencies into a single body, clarifying the
duties of the Ontario Police Commission, sius mandate and officers duty to coop-
now renamed the Ontario Civilian Com- erate in siu investigations, and transfer-
mission on Police Services.147 ring greater power over public complaints
back to local police services.152
123. Shortly after, Stephen Lewis pub-
lished his 1992 report on race relations,
In 1995, Margaret Gittens
highlighting the pervasiveness of racism
and Justice David P. Cole
in Ontario, particularly anti-Black rac-
ism.148 A recommendation in the report published their report on
led the government to transfer admin- systemic racism in the
istrative responsibility for the newly-es- Ontario criminal justice
tablished siu from the Ministry of the system. The report concluded
Solicitor General to the Ministry of the
that the siu had not met
Attorney General in 1993 to reinforce
the publics expectation for
the sius independence.149
increased accountability. And
124. In 1995, Margaret Gittens and
Justice David P. Cole published their
it emphasized the need to
report on systemic racism in the Ontario develop an effective response to
criminal justice system.150 The report police shootings.
concluded that the siu had not met
the publics expectation for increased 126. Although most of these specific
accountability. And it emphasized the recommendations were not enacted, the
need to develop an effective response to government amended the legislation
police shootings.151 in 1997 to transfer responsibility and
chapter 3 | Background 59

authority for public complaints away from 130. In 2007, the government amended
the province and to local authorities. The the legislation to create a new public com-
Police Complaints Commissioner posting plaints process, establish the oiprd, and
was abolished and the Ontario Civilian change the name of the Ontario Civilian
Commission on Police Services was given Commission on Police Services to the
limited review powers.153 ocpc.160 The amendments came into
127. Some of the most significant force in 2009.161
changes to the legislation governing 131. That same year, the government
the siu came the next year following again asked Chief Justice LeSage to
the release of Justice George W. Adams review issues between the siu and the
first report on the siu.154 More specifi- police in siu investigations. These and
cally, the sius annual budget was greatly other issues had been well-documented in
increased, a regulation was passed on the a 2008 report from Ombudsman Andr
duty to cooperate in siu investigations, Marin on the sius effectiveness and
and the police officers Code of Conduct credibility.162
was changed to make failing to comply 132. Following the release in 2011 of
with the regulation a neglect of duty.155 Chief Justice LeSages report,163 the
128. In 2003, Justice Adams evaluated government amended the regulation gov-
the implementation of the siu reforms erning the conduct and duties of police
in a follow-up report.156 officers in siu investigations.164
129. On the public complaints side, by 133. Also in 2011, Ombudsman Andr
2004 there was a growing unease over the Marin published a second report, eval-
lack of oversight in the devolved, local- uating the progress made in imple-
ly-based public complaints system.157 As menting the recommendations from his
a result, the government appointed Chief 2008report.165
Justice Patrick J. LeSage to conduct a 134. Since that time, Ontarios system
review of the complaints system.158 A key of civilian police oversight has continued
recommendation in his 2005 report was to be a subject of much debate. Some
the creation of an independent civilian argue for further reform. It is within this
body to administer the public complaints context that I was tasked with conducting
system.159 this review of the siu, oiprd, and ocpc.
part iii
Discussion and Recommendations
CHAPTER 4

Composition of the Oversight Bodies

4.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

4.200 The legislation that governs the oversight bodies . . . . . . . . . . . . . . . . 65


4.210 Separate legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
4.220 The legal status of the oversight bodies . . . . . . . . . . . . . . . . . . . . . 67

4.300 Overview of the people that run the oversight bodies . . . . . . . . . . . . 68

4.400 Social and cultural competency programs . . . . . . . . . . . . . . . . . . . . . 69

4.500 The directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71


4.510 Security of tenure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
4.520 Appointment of the siu director . . . . . . . . . . . . . . . . . . . . . . . . . . 72

4.600 The people who fulfill the public accountability function


at the siu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
4.610 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
4.620 Public accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
4.630 Deputy directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
4.640 Public accountability office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
4.650 Services to affected persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
4.660 Community outreach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

4.700 The people who carry out the investigative function . . . . . . . . . . . . . 79


4.710 Deputy director of investigations for the siu . . . . . . . . . . . . . . . 79
4.720 Former police officers as investigators . . . . . . . . . . . . . . . . . . . . . . 80

63
64 Report of the Independent Police Oversight Review

4.721 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.722 Composition of former police officers as investigators
at the siu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
4.723 Past recommendations on employing former police
officers at thesiu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
4.724 Practices in other jurisdictions . . . . . . . . . . . . . . . . . . . . . . . 83
4.725 Discussion on former police officers at the siu . . . . . . . . . . . 85
4.726 Discussion on former police officers at the oiprd . . . . . . . . 89
4.730 Recruitment, education, training, and evaluation of oversight
investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

4.800 Oversight of the oversight bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . 93


chapter 4 | Composition of the Oversight Bodies 65

4.100 Introduction 9. In my view, former police officers


1. The police oversight bodies are created should not be excluded from either the
by laws, but they are run by people. siu or oiprd. Rather, as I will explain,
those bodies should focus on incorporat-
2. In the end, the oversight bodies are
ing anti-bias measures into their recruit-
only as good as the people running them,
ment, training, education, and evaluation
and as those laws allow them to be.
of investigators.
3. In this chapter I focus on the laws and
10. Finally, I address oversight of the
people that make up the oversight bodies.
police oversight bodies themselves.
4. I first touch briefly on the laws that There I recommend that the Ombuds-
establish those bodies, which are found man should have the ability to respond
in the Police Services Act. to complaints about all three oversight
5. In doing so, I answer the governments bodies.
question: should the oversight bodies
have their own set of laws, ones that are
4.200 The legislation that
separate from the Police Services Act?
governs the oversight bodies
6. I say that they should because it
11. In this section I explain why the
would make the oversight system easier
oversight bodies should have their own
to understand. And it would reassure
legislation. I also say that the siu should
the public that the oversight bodies are
be an agency in law, like the oiprd and
independent of the police.
ocpc.
7. Then I discuss the people who make
up the oversight bodies: the directors,
4.210 Separate legislation
the investigators, and so forth. This is
divided between the people who carry 12. Legislation is a law or series of laws.
out investigative functions and those Right now, all of the laws establishing the
who support public accountability and police oversight bodies are found in the
other functions. Police Services Act.166

8. This includes examining whether the 13. But would it make more sense for
oversight bodies should employ former the oversight bodies to have their own
police officers as investigators. legislation? In my opinion, it would.
66 Report of the Independent Police Oversight Review

14. While ultimately the content of the system, but instead deal with the internal
legislation is what is most important, sep- complaints system, the system a police
arate legislation offers two key benefits: it chief uses to discipline police officers.
would make it easier for people to under- 20. This should be fixed with new leg-
stand how the oversight bodies work and islation that is separate from the Police
it would confirm their independence. Services Act. And that legislation should
15. An interested person should be able be user-friendly and use language that is
to read the police oversight legislation easy to understand.
and understand how the oversight system
works. That person should be able to do so An interested person should
without too much difficulty and without be able to read the police
years of legal training. oversight legislation and
16. This is especially so for people who understand how the over-
have a complaint about police conduct. sight system works. That
17. Yet the laws on the oversight bodies person should be able to do so
in the Police Services Act are hard to find
without too much difficulty
in that act and hard to understand. That
and without years of legal
is largely because the Police Services Act
is mainly labour legislation. It deals with training.
the roles and responsibilities of munici-
palities, police officers, police chiefs, and 21. That way, when someone has a com-
police services boards. It addresses how plaint, that person is able to see how the
police officers negotiate collective agree- process works, know what they have to
ments, arbitrate disputes, and transfer do, and understand the roles and respon-
assets between pension plans. sibilities of the oversight bodies.

18. The laws about the oversight bodies 22. Separate legislation has another
are then scattered throughout the Police advantage. It would confirm to the public
Services Act. They are found mainly in that these oversight bodies are important
parts II, II.1, V, and VII of that legislation. and that they are independent from the
police.
19. In part V, they are mixed with laws
that are not about the civilian oversight
chapter 4 | Composition of the Oversight Bodies 67

23. Many people I spoke with said that Recommendation 4.1


mixing police oversight legislation with
policing legislation is not appropriate. The laws on the civilian police over-

The reason is that some people may get sight bodies should be set out in a

the impression that the oversight bodies statute, and regulations made under

are not independent of police. Because that statute, dedicated to civilian

of the legislative comingling, they may police oversight, and separate from

believe that the oversight bodies oper- the Police Services Act.

ate as part of the police services, like the


professional standards units that handle
internal discipline. 4.220 The legal status of the oversight
bodies
Separate legislation has 26. When it comes to their status within
another advantage. It would government, one of the three oversight
confirm to the public that these bodies is not like the others.
oversight bodies are important 27. While the oiprd and ocpc are
and that they are independent agencies, the siu is not. Instead, the
legislation establishes the siu as a unit
from the police.
under the Ministry of the Solicitor Gen-
eral.167 This should change.
24. This is a problem since oversight
bodies must not only be independent, 28. The siu should be legally recognized
but they must appear to be independent. as an arms length agency accountable to
the Ministry of the Attorney General.
25. Appearances matter. Police over-
sight depends on people being willing 29. Recognizing the siu as an agency
to engage with the oversight bodies. So would provide at least three benefits.
the public must be confident that the 30. First, it would make the siu more
oversight bodies are independent of the accountable. Agencies must post annual
police. Separate legislation would help reports to the public.168 They also must
build that confidence. produce business plans and are subject to
periodic mandate reviews.169
68 Report of the Independent Police Oversight Review

31. Second, it would improve and high- biggest stakeholders. As such, none of
light the sius independence. Agencies the oversight bodies should report to it.
carry out their public day-to-day work 36. Rather, they should report to the
without ministry involvement.170 Ministry of the Attorney General, the
32. In practice, the Attorney General ministry responsible for upholding the
allows the siu to operate like an arms rule of law.
length agency. But that, to me, is not 37. The legislation should explicitly
good enough. The sius level of indepen- recognize this.
dence should not be left to a ministers
discretion.
Recommendation 4.2
33. Third, if the siu were an agency, it
would improve the process for choos- The siu should be recognized as an
ing the siu director. Provincial agency arms length agency accountable to
appointees are recruited through an the Ministry of the Attorney General.
open and transparent process.171 They
also are subject to review by the Legis-
lative Assemblys Standing Committee
4.300 Overview of the people
on Government Agencies.172
that run the oversight bodies
34. In addition, the legislation should
38. The next sections look at the people
clarify that the siu is accountable to the
who make the oversight bodies operate.
Ministry of the Attorney General. It has
operated under that ministry since 1993, 39. I begin by discussing an important
following a recommendation by Stephen issue that applies to all of the oversight
Lewis.173 But the legislation still says that bodies, and all of the people at those over-
the siu is a unit under the Ministry of sight bodies. That is the issue of social
the Solicitor General (which is now the and cultural competency.
Ministry of Community Safety and Cor- 40. Then I focus on the investigative
rectional Services).174 oversight bodies, which are the siu and
35. That is problematic. That ministry oiprd. I start by addressing the people
is responsible for policing services in in charge of those bodies, the directors.
Ontario. And the police are one of its Then, I discuss the people needed to fulfill
chapter 4 | Composition of the Oversight Bodies 69

the public accountability function, which addressed. Still others felt that the over-
is mainly focused on the siu. Finally, I sight bodies were not sensitive to their
review the people who carry out the over- communities historical relationships with
sight bodies investigative functions. the police.

Social and cultural competency


4.400 Social and cultural
begins with understanding a
competency programs
communitys history and its
41. To provide all Ontarians with effec-
relationship with police and
tive oversight, the oversight bodies must
be both socially and culturally competent. police oversight.
42. This includes all individuals at the
45. All such concerns limit the effective-
oversight bodies: the directors, the inves-
ness of the oversight bodies.
tigators, the adjudicators, and the staff
dedicated towards outreach, communi- 46. In my view, the oversight bodies
cations, administration, affected persons should invest in developing greater social
services, and so forth. It also includes and cultural competency.
looking at each organization itself: its 47. Greater social and cultural com-
policies, programs, and operations. petency would allow members of the
43. During my consultations, I heard oversight bodies to navigate situations
from many different groups about the where social or cultural differences may
distinctive challenges they face when be a factor.
dealing with the police and police over- 48. Social and cultural competency
sight bodies. They said that, in some ways, begins with understanding a commu-
they did not feel valued or understood by nitys history and its relationship with
the oversight bodies. police and police oversight. It includes
44. Some, for example, said that the understanding, for example, that men and
oversight bodies did not understand women often are treated differently, as are
gender-based violence or issues relating those affected by mental health issues. It
to mental health. Others complained also includes recognizing that there are
that language barriers were not properly power imbalances in many relationships,
particularly in domestic relationships, but
70 Report of the Independent Police Oversight Review

also in other situations involving interac- accessibility, gender-based violence, and


tions between the police and the public. mental health.
And it includes recognizing the barriers 53. The programs should be developed in
to accessibility facing some communities, partnership with the communities served
such as persons with mental or physical by the oversight bodies and their support-
disabilities. ers, such as womens groups, race-based
49. Developing greater competency in organizations, and mental health orga-
these areas involves self-reflection on nizations. The should include extensive
ones own perceptions of certain com- courses on the communities served by
munities and social norms, and how those the oversight bodies, including, but not
perceptions may shape ones interactions limited to, Ontarios Black, South Asian,
with others. East Asian, Arab, Muslim, and lgbtq
50. Social and cultural competency communities, as well as women and per-
also includes developing techniques to sons with mental or physical disabilities.
work in a respectful and sensitive man- 54. The competency programs should be
ner with people from a broad range of consistent, comprehensive, and manda-
communities. tory for all staff. They should be a per-
51. Finally, for competency develop- manent and ongoing commitment within
ment to be truly successful, it will need each organization. Key performance indi-
to involve critically assessing organiza- cators should be developed to track the
tional policies, programs, operations, and programs outcomes and success.
general practices to ensure a socially and 55. In addition, I recommend that the
culturally respectful approach. oversight bodies make efforts to reflect
52. To accomplish greater overall com- the diversity of Ontario and the com-
petency, I therefore recommend that the munities they serve, through recruitment
oversight bodies implement ongoing and development of people from com-
training and evaluation programs that munities currently under-represented at
address social and cultural competency those organizations.
issues, anti-racism, diversity, inclusion,
chapter 4 | Composition of the Oversight Bodies 71

Recommendation 4.3 of diversity when making appointments


for the siu director.
The oversight bodies should develop
and deliver mandatory social and
cultural competency programs for 4.510 Security of tenure
their staff. These programs should 58. Independence is a key feature of
be developed and delivered in part- civilian oversight bodies.
nership with the communities they 59. Not only should the oversight bodies
serve and organizations supporting be independent of police, they also should
those communities. be free from political interference.
60. This applies to the leaders of the
oversight bodies too. They should not fear
Recommendation 4.4
that the government will dismiss them if
There should be ongoing recruitment it disagrees with a decision. Nor should
and development of people from those leaders fear dismissal just because
communities under-represented they have spoken out about civilian over-
within the oversight bodies, including sight concerns.
in senior and leadership positions. 61. Rather, a director should know that
their job is safe, so long as there is no
56. I elaborate on this topic in chapter good reason to dismiss them.
10, where I make recommendations that 62. To achieve greater independence, I
focus on enhancing the oversight bod- recommend that the directors should be
ies cultural competency with Indigenous appointed for a fixed term of five-years,
communities. renewable once, during which they can-
not be fired, unless for just cause.
4.500 The directors 63. This is the arrangement in place in
57. In this section I recommend that Manitoba and Nova Scotia.175 To me, it
directors of the siu and oiprd should strikes the right balance between main-
have terms of appointment that promote taining independence while allowing for
greater independence. I also address the periodic renewal and diversity.
need to promote a greater appreciation
72 Report of the Independent Police Oversight Review

Recommendation 4.5 of those lawyers were former prosecutors,


except one.
The siu director and the Indepen-
67. It is true that the siu director must
dent Police Review Director should
have an understanding of criminal inves-
be appointed for a five-year term of
tigations. And the director should appre-
office. A person may be re-appointed
ciate the importance of conducting fair,
as director for a second five-year
impartial investigations in accordance
term, but may not serve more than
with the law.
two terms. A directors appointment
may not be terminated, except for 68. But there is no reason why the direc-
cause. tor has to be a lawyer. Most leaders of
law enforcement agencies are not lawyers.
That is why many of them, including the
4.520 Appointment of the siu director siu and other civilian oversight bodies,
have access to advice from legal coun-
64. In its roughly twenty-seven year exis-
sel, including counsel with criminal law
tence, the siu has been led by thirteen
expertise.
siu directors.
69. Non-lawyers are more than capable
65. During that period, there has been
of running oversight bodies. Currently,
only one rule imposed by law about who
non-lawyers are leading oversight bod-
can be the siu director: that person can-
ies in other jurisdictions, such as British
not ever have been a police officer.176
Columbia and England and Wales.
66. Despite this being the only rule, the
70. Nor does the director need to be
siu directorship has displayed a lack of
a Crown Attorney or prosecutor. Like
diversity over the years. For one, the
former police officers, appointing such
former directors have not reflected the
individuals may raise concerns about bias
racial diversity of the province. And, out
since they could have spent their entire
of thirteen directors, all but two have
careers working with police officers. In
been men (and the two women only
addition, they would seem less likely to
served on an interim basis). In addition,
appreciate public relations.
the directors have lacked professional
diversity: all have been lawyers, and all
chapter 4 | Composition of the Oversight Bodies 73

Indeed, without a public example, people who come from different


accountability function, there backgrounds bring different skill sets to
a job. They see things in different ways.
would seem to be little reason
They have different ways of approach-
for the siu to investigate a ing similar problems. And they have a
police officer, as opposed to different appreciation of the needs and
enlisting an outside police concerns of the community of stakehold-
service. ers the siu serves.
76. In contrast, people from the exact
71. As I expand on later in section 4.600 same background tend to see things in the
and chapter 6, the siu has a critical public same way. If you consistently hire them
accountability function. Not only must as leaders, you risk developing organiza-
it investigate police effectively, but also tional blind spots. And you miss out on
it must account to the public in a trans- the innovative solutions that people with
parent way to assure the public that it different perspectives bring to the table.
has done so.
77. This is perhaps why the siu has con-
72. Indeed, without a public account- sistently struggled over the years with
ability function, there would seem to be understanding its public accountability
little reason for the siu to investigate a function.
police officer, as opposed to enlisting an
78. Accordingly, when recruiting and
outside police service.
selecting candidates for the siu direc-
73. Therefore, whoever is appointed as torship, the government should place
siu director must understand this critical greater value on cultural and professional
function. diversity.
74. In my opinion, the siu directorships
overall lack of cultural and professional Recommendation 4.6
diversity is problematic, especially for an
organization that serves such a diverse When appointing the siu director, the
community of stakeholders. following additional factors should be

75. Hiring people from diverse back- considered:

grounds has a number of advantages. For (a) The candidates understand-


74 Report of the Independent Police Oversight Review

ing of the sius dual functions of position to oversee operations and com-
effective investigations and public munications. Next, I discuss the need for
accountability; establishing an office dedicated to public
accountability. Finally, I touch on improv-
(b) The candidates understanding
ing services to people who are affected
of the needs and concerns of the
by the incidents investigated by the siu,
community of stakeholders the siu
as well as community outreach.
serves; and

(c) The added value that a candidates


4.620 Public accountability
work or cultural background would
bring to the organization. 82. The siu is different from other law
enforcement agencies in Ontario. Like
other law enforcement agencies, one of
its core functions is to effectively investi-
4.600 The people who fulfill the
gate possible crimes. But unlike other law
public accountability function at
enforcement agencies, it has an equally
the siu
important public accountability function.
83. That function ultimately aims to pro-
4.610 Overview mote public confidence in law enforce-
79. This section focuses on the siu, and ment. This is done by holding police
specifically the people dedicated to its accountable for any potential criminality,
public accountability function. I address and by showing the public that this has
public accountability at the oiprd in been done.
chapter 7.
84. The siu director is the one charged
80. In my opinion, the siu has neglected with leading the siu to fulfill these
this function for too long. Here I make functions.
recommendations on staffing that aim
85. In fact, the law concentrates the
to change that.
power and responsibility to do so in the
81. First, I review the current organi- director. It is the director alone who can
zational structure the siu has in place lay charges.177 And it is the director who
for public accountability. Then, I address must report the results of an investigation
the benefit of creating a deputy director to the Attorney General.178
chapter 4 | Composition of the Oversight Bodies 75

But unlike other law accountability. This is reflected in the


enforcement agencies, it has selection of a former police officer as the
current executive officer.
an equally important public
93. And it is reflected in the amount the
accountability function.
siu spends in these areas. In 2014-2015,
the siu spent about 4 percent of its total
86. This is in addition to the directors
expenditures on communications, out-
responsibility to oversee the sius training,
reach and affected persons ($352,584 out
outreach, policy, investigations, commu-
of $8,193,615), plus amounts expended
nications, administration, and services to
on training.179 In contrast, investigative
affected persons.
and identification services combined for
87. It is a lot for one person.
80 percent, although that also includes
88. Currently, the director has an admin- expenditures on transcribers, a central
istrative manager and executive officer registry clerk, and an administrative
who assist with these responsibilities. secretary.180
89. The administrative manager, as the 94. Its personnel reflect it too. The siu
title suggests, oversees the administration currently has one person that handles
of the siu. That involves managing things communications. One person does
such as the budget, secretarial services, outreach. And one person coordinates
and purchasing. services for affected persons, although
90. The executive officer then oversees she only works part-time. In contrast,
investigations, training, communications, it has about seventy people devoted to
outreach, and services to affected persons. investigations.

91. This, to me, is a problematic arrange- 95. This disparity between the two func-
ment. That is because the executive offi- tions should be addressed. And I say this
cer oversees activities that call upon very should be done by providing the siu
different skill sets. with more resources to fulfill its public
accountability function.
92. In reality, what seems to have hap-
pened is that investigations have been
prioritized to the neglect of public
76 Report of the Independent Police Oversight Review

4.630 Deputy directors 101. Public accountability is vital to the


96. Reducing the disparity between sius success. Yet the siu currently has
investigations and public accountability only one person responsible for public
starts at the leadership level. communications.

97. There should be one person who


Public accountability is vital
shares the siu directors responsibility for
to the sius success.
effective investigations. And there should
be another person who shares the respon-
102. This has not been enough to man-
sibility for public accountability and all
age the sius current communications
other aspects of the sius operations.
workload. In fact, the siu told me that
98. To reflect the dual nature of the siu, it is only able to report on one out of four
these two should have equal status within cases. One person will certainly not be
the organization. enough to handle the public reporting
99. In this way, there should be a strong that I recommend in section 6.300.
voice advocating for public accountability 103. What I propose is that the siu
at the top of the organization. should create a public accountability
office, which could be modelled after the
Recommendation 4.7 one at British Columbias Independent
Investigations Office.
The siu should have a deputy
104. There, an executive director over-
director of investigations and a
sees its public accountability operations,
deputy director of operations and
assisted by a manager of strategic com-
communications.
munications, and supported by a public
accountability team.
105. The individuals at that office should
4.640 Public accountability office
have expertise in public relations and
100. Reducing the disparity between communications. They also should be
the sius dual functions also requires socially and culturally competent and
providing adequate resources for public reflect the diversity of Ontario.
accountability.
chapter 4 | Composition of the Oversight Bodies 77

Recommendation 4.8 prising, given the amount of resources the


siu dedicates to that function.
The siu should create a public
accountability office responsible for Affected persons often deal
public communications and should
with stress, trauma, and
be provided with adequate resources
financial difficulty. This
for this function.
is especially so for family
members of a person who died
4.650 Services to affected persons in a police interaction.
106. Another thing the siu must
110. As noted earlier, the siu only has
improve is its services to persons affected
one part-time employee, the affected
by the acts under investigation.
persons coordinator, tasked with serving
107. Affected persons often deal with
affected persons.
stress, trauma, and financial difficulty. This
111. Despite this position being part-
is especially so for family members of a
time, the coordinator has a lot to do. After
person who died in a police interaction.
all, the siu investigates about 250 cases
108. Unfortunately, I heard that the
a year. The coordinator is then expected
siu tended to worsen, rather than ease, to support the affected persons in those
their problems. Affected family members
cases throughout the investigative process.
told me that there was a lack of com-
112. Such support includes referrals to
munication from the siu. They said that
counselling, liaising between investiga-
investigators were not sensitive enough.
tors and the affected persons, and helping
And they said that there were not enough
affected persons access victim support
victim supports made available to them.
programs.
In fairness to the siu on this last point
though, most affected persons are simply 113. Because of limited resources, the
unable to qualify for government financial coordinator is generally unable to make
assistance programs.181 first contact with affected persons. Instead
investigators do. But investigators are
109. Complaints about the sius services
generally not trained to deal with people
to affected persons are not all that sur-
experiencing grief and trauma. Instead
78 Report of the Independent Police Oversight Review

they are focused on gathering evidence. 117. These staff, rather than investiga-
114. Making things worse, some of these tors, should make initial contact with
investigators carry themselves like police affected persons, when possible.
officers. This can be quite distressing for 118. And they should maintain ongoing,
someone who is being told that their proactive communications about the case.
loved one just died at the hands of a This is especially important before the siu
police officer. It also undermines such a publishes any media release, including
persons confidence that an independent, the final report.
impartial investigation is taking place. 119. This staff also should aim to accom-
115. To me, it is clear that the siu needs pany investigators during any meetings
more staff and resources dedicated to that they have with affected persons. In
supporting affected persons. Such staff this way they can ease communication
should be socially and culturally com- and support affected persons during these
petent so that they can serve the diverse difficult conversations.
communities affected by siu incidents.
And they should have the skills and
Recommendation 4.10
experience that allow them to address
the following areas: trauma, counselling, Affected persons support staff should
crisis intervention, and mental health and make initial contact with affected
addictions. persons who are not witnesses. They
should maintain ongoing, proactive

Recommendation 4.9 communication with all affected per-


sons throughout an investigation.
The siu should enhance its services
to affected persons and should be
provided with adequate resources 4.660 Community outreach
for this function.
120. The oversight bodies also need to
improve their community outreach. Here
116. With more staff, the affected per-
I touch upon the siu alone, although I
sons services could serve as the window
address concerns about outreach at the
into the siu for all affected persons.
oiprd in section 7.210.
chapter 4 | Composition of the Oversight Bodies 79

121. Improving community outreach is meaningfully engage in community


an important part of the sius renewed outreach.
public accountability focus.
122. Outreach supports the sius man- Recommendation 4.11
date by enhancing transparency and
building trust in the community. The siu should enhance its commu-
nity outreach and should be provided
123. In my consultations, I found a lack
with adequate resources for this
of trust existed between the siu and many
function.
of the communities that it serves.
124. This was especially true for Black
and Indigenous communities, and for
4.700 The people who carry out
persons with mental health challenges.
the investigative function
These communities have been dispropor-
tionately impacted by incidents investi- 129. In this section I discuss the people
gated by the siu. who carry out the investigative func-
tions for the oversight bodies. While
125. To me, better community outreach
this mainly focuses on the investigators
could improve trust between such com-
at the siu and oiprd, I also touch on
munities and the siu.
the benefit of having a deputy director
126. Currently, the siu has one person of investigations at the siu.
dedicated to community outreach, the
outreach coordinator. The coordinator
is tasked with meeting with the diverse 4.710 Deputy director of
community of stakeholders across the investigations for the siu
province to increase awareness of the siu, 130. Although its public accountability
its mandate, and the investigative process. function needs the most attention, reor-
127. Just like communications and ser- ganizing the siu also would benefit its
vices to affected persons, it is a lot for one investigative function.
person to do. 131. In my view, a deputy director of
128. In my view, additional staff and investigations would be a key resource
resources are needed for the siu to in reducing investigative delay.
80 Report of the Independent Police Oversight Review

132. As noted earlier, the siu director (a) The director or deputy director of
is the only person at the siu who may investigations may lay charges;
lay charges. (b) The deputy director of investiga-
133. This does not mean that the direc- tions may not be a person who is a
tor must review every single piece of evi- police officer or former police officer;
dence in every single investigation. But it and
imposes a significant burden nonetheless.
(c) The deputy director of investiga-
134. Investigative delay has been a major tions may designate a person, other
complaint throughout my consultations. than a police officer or former police
Many suggested that it is partly because officer, as acting deputy director of
the legislation burdens the siu director investigations to exercise the powers
with the responsibility for all charging and perform the duties of that dep-
decisions. uty director if that deputy director is
135. A deputy director of investigations absent or unable to act.
could ease that burden significantly,
allowing the siu director to attend to
the many other responsibilities of the job. 4.720 Former police officers as
136. This deputy director should be investigators
given the same power, and face the same 4.721 Overview
restrictions as the siu director. That is, 137. An ideal police oversight investi-
the deputy should be able to lay charges gator would be someone who is a skilled
and delegate authority. Because of that investigator of crime or police miscon-
responsibility though, the person named duct, whether by past experience or
as deputy director should not have ever through further training.
been a police officer.
138. At the same time though, that
investigator should not be someone who
Recommendation 4.12 is biased in favour of or against the police.
Nor should that investigator be someone
The legislation should be amended
who even appears to be biased in favour
to provide the following:
of or against the police.
chapter 4 | Composition of the Oversight Bodies 81

139. As police oversight investigators, balance in the composition of their


former police officers pose a challenge. investigative teams. While the oversight
Nobody doubts their ability to investi- bodies should not exclude former police
gate. Yet many question whether they are officers, they should do more to attract
biased in favour of police officers, their and develop quality investigators that
former colleagues. do not have a background in policing.
140. For this review, the Ontario gov- This would enhance their appearance
ernment asked me whether the oversight of independence. It also would promote
bodies should employ former police offi- variety and balance in the perspectives
cers as investigators. and skills brought to bear by individual
investigators.
141. My answer is that they should con-
tinue to do so. 145. In this section, I first address the
siu, followed by a brief discussion of
142. In my opinion, eliminating former
the oiprd. In making my recommen-
police officers is not the solution to ensur-
dations, I review their current practices,
ing unbiased police oversight. Rather, a
what other jurisdictions do, and what
more promising approach would focus
other reviewers have recommended. In
on two things.
the next section, I elaborate on what I
143. First, the oversight bodies should say is the answer to the threat of biased
focus on selecting and developing indi- investigations: proper recruitment,
viduals that are best-suited to conducting training, education, and evaluation of
effective, unbiased oversight investiga- investigators.
tions. The goal, after all, is to prevent
biased oversight investigators, whether
4.722 Composition of former police
they were former police officers or not.
officers as investigators at the siu
This, to me, would be better achieved
through hiring practices that attract and 146. Unlike some other jurisdictions,
screen in quality candidates, and through investigators at the siu may not be cur-
education, training, and ongoing perfor- rent police officers.182
mance evaluation. 147. However, former police officers may
144. Second, the oversight bodies should still work as investigators. They may do so
attempt to attain a more appropriate with one restriction: they are not allowed
82 Report of the Independent Police Oversight Review

to investigate anyone from one of their has been recommended that they do so,
former police forces.183 because other jurisdictions do so, and
148. Other than the siu director, the siu because for its forensic investigation work
currently employs former police officers it would be very difficult to find anybody
in all investigative roles, though over time else with the required education, training,
it has become less reliant on them. and experience.

149. When Justice Adams reviewed 153. Previous reviewers of police over-
the siu in 1998, apparently all but three sight in Ontario have considered this
investigators were former police officers.184 issue. Yet none have recommended that
Ten years later, the siu had seven full-time the siu exclude former police officers.
investigators and six on-call investigators 154. Nor is Ontario distinct in employ-
who were not former police officers.185 ing former police officers as investigators.
Now the siu has over twenty investigators All other police oversight bodies in Can-
who are not former police officers. ada and the United Kingdom continue
150. The current composition of former to do so.
police officers in the investigative team 155. In addition, when it comes to foren-
at the siu is as follows: sic investigations, I have been told that,
Forensic managers: 2 of 2 at present, it would be almost impossible
to do without former police officers. That
Forensic investigators: 9 of 9
is because forensics expertise is generally
Investigations managers: 2 of 3 dependent upon police training, educa-
Full-time investigators: 3 of 15 tion, and experience.

On-call investigators: 31 of 41186


151. Thus, in total, forty-seven out of 4.723 Past recommendations on
seventy investigators are former police employing former police officers at
officers (about 67 percent). For non-fo- thesiu
rensic investigators, the total is thirty-six 156. No previous reviewer has recom-
out of fifty-nine (about 61 percent). mended that the siu exclude former
152. The siu has continued to employ police officers. At the same time though,
former police officers in part because it they have all stressed the importance of
including civilian investigators as well.
chapter 4 | Composition of the Oversight Bodies 83

157. That includes the Race Relations investigators of excellence, who would
and Policing Task Force led by Justice wish to join the Special Investigations
Clare Lewis, whose 1989 report led to Unit because they believe, above all, in
the creation of the siu. The task force said a fair, law-abiding and incorruptible
that police, given their expertise, must police force, and theyre prepared to
continue to play an integral role in such devote their careers to that end.188
investigations but that the process must 159. Far from excluding former police
also involve civilian oversight.187 officers, Justice Adams tried to reach
consensus on employing seconded police
No previous reviewer has officers at the siu (those would be current
recommended that the siu police officers transferred from their regu-
exclude former police officers. lar police posts to the siu for a temporary
At the same time though, they period).189

have all stressed the impor- 160. In the end, he made no such rec-
tance of including civilian ommendation. Instead he recommended
giving the siu more resources for training.
investigators as well.
He also encouraged the siu to recruit
qualified investigators from more cul-
158. Stephen Lewis felt that experienced
turally diverse backgrounds.
police officers would benefit the siu, even
though their independence would have to 161. Ontarios Ombudsmans 2008
be assured. In his 1992 report, he rejected report similarly focused its recommenda-
the idea of excluding former police offi- tions on diversifying the investigative staff
cers from the siu: and management, but without excluding
former police officers.190
I dont agree. Criminal investigation
takes years and years of experience to
acquire, and in the process of inves- 4.724 Practices in other jurisdictions
tigation, there is equally the need to 162. Civilian oversight bodies typically
be intimately familiar with police cul- employ a combination of people with no
ture. Independence must absolutely be police background, former police officers,
assured, but it should be possible to and seconded police officers.
find and attract skilled police criminal
84 Report of the Independent Police Oversight Review

In Canada and the United 168. In Qubec, the Bureau des enqutes
Kingdom, all civilian indpendantes now has twenty-two
investigators, half of whom are former
oversight bodies like the siu
police officers and half of whom have no
continue to employ former background in policing.195
police officers or seconded police
169. British Columbias Independent
officers. Investigations Office is the only oversight
body in Canada that aims to eventually
163. In Canada and the United King- be staffed entirely by investigators who
dom, all civilian oversight bodies like the have never been police officers.196 How-
siu continue to employ former police ever, there is no set deadline to meet this
officers or seconded police officers. goal.197 There, investigators must not be
164. In Canada, this includes Alberta, current police officers and must not have
Manitoba, Nova Scotia, Qubec, and served as police officers in the province
British Columbia. within the previous five years.198
165. The Alberta Serious Incident 170. The Independent Investigations
Response Team contains a blend of civilian Office appears to be the oversight body
investigators and investigators seconded least dependent on investigators with a
from various Alberta police services.191 policing background in Canada. Accord-
166. In Manitoba, investigators may be ing to its website, as of March 1, 2015,
current or former police officers, or they only about 40 percent of the investiga-
may have no policing background.192 tor positions are held by former police
However, currently serving officers must officers.199
be released from all other duties when 171. In Northern Ireland and England
they join the unit.193 and Wales, single oversight bodies inves-
167. In Nova Scotia, at present, their tigate both matters involving serious
Serious Incident Response Team only injury or death (like the siu), and public
employs investigators with policing expe- complaints (like the oiprd).
rience. It has two civilian investigators 172. In England and Wales, the Inde-
who were former police officers and two pendent Police Complaints Commis-
seconded police officers.194 sion employs a mix of former police
chapter 4 | Composition of the Oversight Bodies 85

officers and people with no policing limiting or excluding them from police
background.200 In 2012, the incoming oversight.
chair of that commission announced a 176. As mentioned earlier, many people
specific policy of targeting people with are concerned that a former police officer
non-policing backgrounds.201 At present, will investigate with a pro-police bias.
only about 25 percent of its investigators
177. Indeed, during my consultations,
are former police officers.202
members of the public and affected
173. In Northern Ireland, according to families consistently expressed concern
a 2011 study, 41 percent of the Police about whether the siu can ever be truly
Ombudsman of Northern Irelands independent of the police if it is staffed
investigative staff had a policing back- by former police officers.
ground.203 Yet complainants report a high
178. And these concerns have support.
level of satisfaction with the Ombuds-
A former siu director shared that he
mans oversight role nonetheless.204 The
thought the problem of bias was actual
Police Ombudsmans view is that ideal
and not just one of appearance. In his
oversight combines seconded and retired
experience, some former police officers
police officers in addition to civilians.205
tended to over-identify with the police.
179. This is troubling, of course. An
4.725 Discussion on former police
oversight body will fail to promote pub-
officers at the siu
lic trust if people think its investigators
174. To promote public trust, members are biased. But even worse, if the inves-
of the public must believe that police tigators are actually biased, then police
oversight investigations are both effective officers may not be held accountable for
and unbiased. committing criminal acts.
175. The employment of former police 180. Still, in my view, excluding all for-
officers is a challenging issue to resolve. mer police officers would be misguided.
That is because a former police officers
181. To exclude such candidates would
education, training, and experience point
place too much emphasis on where those
towards them being an effective investi-
people used to work rather than who
gator. Yet the publics concern that such
theyare.
investigators may be biased points toward
86 Report of the Independent Police Oversight Review

The better solution would be to They need less additional investigative


incorporate anti-bias measures training, which saves limited resources;

into hiring, training, educa- They are more likely to have specialized
skills in areas such as witness inter-
tion, and evaluation.
viewing, managing complex investiga-
tions, scene preservation, and forensics;
182. The better solution would be to
incorporate anti-bias measures into hir- They have an insiders understanding of
ing, training, education, and evaluation. police culture and informal practices; and
I expand on this in section 4.730. Police witnesses may be more forth-
183. After all, someone who has never coming if speaking to an investigator
worked as a police officer could still be who was a former police officer.206
strongly biased in favour of the police, 188. In some ways, siu investigations
and thus make a poor civilian oversight may be simpler than ones by police. For
investigator. example, the identity of the subject officer
184. In contrast, a former police officer is usually known from the start. This means
could be unbiased and make an excellent, that investigators may focus on whether
objective civilian oversight investigator, one a police officers use of force was justified.
whom it would be unfortunate to pass over. 189. Yet this more limited focus does
185. What is crucial therefore, is a care- not lessen the need for investigative
ful examination of a candidates disposi- expertise to ensure fair and effective
tion as an individual. siu investigations. These are, after all,
investigations into potential criminality.
186. In that way, the siu need not
Because of that, there are many rules of
exclude candidates whose wealth of
evidence and procedure that investiga-
criminal investigative experience and
tors must follow. Indeed, an investiga-
knowledge would be hard to replace.
tors improper questioning or handling
187. As potential investigators, former
of evidence could jeopardize the integrity
police officers offer many advantages:
of an entire investigation.
They arrive with investigative skills and
190. In all, former police officers serve
knowledge of the internal policies and
as a valuable resource for the siu.
procedures of the police;
chapter 4 | Composition of the Oversight Bodies 87

191. This is particularly so with respect 198. Still, while I appreciate the value
to part-time investigators. Low, unsta- that former police officers offer the siu,
ble pay and demanding job requirements I do believe the siu should be less reliant
strongly favour employing retired police on them.
officers as on-call investigators.
192. The siu relies heavily on these Including more investigators
on-call investigators to handle unpre- from different backgrounds
dictable, as-needed investigative work for also helps diversify the skill
the many cases from outside the Greater set and perspectives of the
Toronto Area. investigative team.
193. That is because the sius only office is
in Mississauga. According to the siu, there 199. As mentioned earlier, investigators
is not enough investigative work outside who do not have a background in policing
of the Greater Toronto Area to sustain enhance the sius appearance of indepen-
full-time staffing in satellite offices. dence and impartiality. Including more
194. When an incident occurs outside of investigators from different backgrounds
that area, the siu sends on-call investi- also helps diversify the skill set and per-
gators who live nearby to quickly secure spectives of the investigative team.
the scene and interview witnesses. 200. In my view, to increase the sius
195. Though a full-time investigator composition of investigators who are not
will usually join the investigation, these former police officers, it should offer more
on-call investigators play a critical role in competitive pay.
reducing delay and ensuring an effective 201. siu investigators do the same work
investigation. as police investigators. Yet, despite this
196. Many civilians, concerned about critical role, they are not paid at a com-
financial stability, are unable to commit petitive rate.
to this unstable work. 202. Offering more competitive pay for
197. Retired police officers, on the other investigators may make part-time investi-
hand, are seen as ideal candidates. That gative work financially viable to a broader
is because their siu salary generally sup- group of potential candidates.
plements their pension earnings.
88 Report of the Independent Police Oversight Review

203. It also may attract more 205. Consistent with being less reliant
high-quality civilian recruits for full- on former police officers, the siu should
time investigator positions. Because of ensure that at least half of the investi-
the similarity to police work, the siu gators on an investigative team have no
is attempting to compete with police background in policing.
services for quality recruits with sim- 206. A review of the literature and prac-
ilar aptitudes and abilities. Without tices in other jurisdictions shows that a
competitive pay, however, its chances team approach is best for criminal over-
of successfully doing so are lower. sight investigations.207 The investigative
204. In conjunction with providing more team should consist of both investigators
competitive pay, the siu also should with no police background and those with
actively recruit civilian investigators policing experience.
with relevant experience who were not 207. Each would bring different skills
former police officers. This may include and perspectives that would benefit the
investigators with backgrounds in child investigation.
welfare, regulatory investigations, and the
208. For example, civilian witnesses
insurance industry.
might respond better to investigators
with no police background. And police
Recommendation 4.13 officers might respond better to investi-
gators who do.
Salaries paid to siu investigators
should be comparable to those paid 209. By ensuring that at least half of the
to other investigators. criminal investigators assigned to each
case are from a purely civilian back-
ground, I believe the siu would promote
greater confidence in its ability to conduct
Recommendation 4.14
effective and impartial investigations.
The siu should actively recruit civil-
ian investigators with relevant expe-
rience who were not former police
officers.
chapter 4 | Composition of the Oversight Bodies 89

Recommendation 4.15 216. However, as with the siu, I do not


think that the oiprd should completely
At least 50 percent of the non-foren-
exclude former police officers. Includ-
sic investigators on an investigative
ing some former police officers would
team at the siu should be investiga-
allow the oiprd to benefit from their
tors with no background in policing.
specialized knowledge of police culture,
practices, and procedures.
4.726 Discussion on former police
217. And the key again is to incorporate
officers at the oiprd
anti-bias measures into their recruitment,
210. Like the siu, the oiprd may
training, education, and evaluation.
employ former, but not current police
218. At the same time, I do not think
officers.208
that half of the oiprds investigators
211. Chief Justice LeSage, whose report
should come from a policing background.
led to the creation of the oiprd, recom-
That is too great a proportion for the
mended that no more than half of its
type of investigations being conducted,
investigators be former police officers.209
and may unnecessarily undermine the
212. Currently, the oiprd employs the oiprds appearance of independence
maximum amount of former police offi- and impartiality.
cers so recommended. Half of its inves-
219. In addition, investigators without
tigators have a background in policing.
a police background offer their own
213. Unlike the siu, oiprd investigators advantages. The oiprd deals with public
do not investigate the most serious of complaints. People who are complaining
criminal matters. They do not undertake about the police may feel intimidated by
criminal investigations at all. Rather, they former police officers. They may feel more
investigate conduct complaints against comfortable dealing with investigators
police officers. from civilian backgrounds. As well, such
214. In short, the stakes are lower and investigators would add greater diversity
the rules are simpler. to the organizational culture of the oiprd
investigative team.
215. Accordingly, there is less to gain
from a former police officers knowledge 220. In my view, to better promote its
and experience in criminal investigations. independence and impartiality, both real
90 Report of the Independent Police Oversight Review

and perceived, the oiprd should seek to for the oversight bodies to carefully screen
employ a greater proportion of investi- candidates for investigator positions.
gators who do not come from a policing 223. An ideal oversight investigator
background. would be open-minded, self-aware, and
embrace opportunities for learning and
Recommendation 4.16 personal development. And, of course, an
ideal investigator would need to be tem-
The oiprd should actively recruit civil- peramentally suited to performing truly
ian investigators with relevant expe- impartial and independent investigations.
rience who were not former police
224. When hiring, the oversight bod-
officers. No more than 25 percent of
ies should look for those qualities. They
the oiprds investigators should be
should look for people who, in the words
former police officers.
of Stephen Lewis, believe, above all, in a
fair, law-abiding and incorruptible police
force, and [who are] prepared to devote
4.730 Recruitment, education, their careers to that end.210
training, and evaluation of oversight
225. For greater certainty, the oversight
investigators
bodies also should conduct personal-
221. In this section I discuss how recruit- ity assessments to screen a candidates
ment, education, training, and evaluation personality for bias, including discrim-
can be used to address concerns about inatory biases, self-awareness, and any
biased investigators. I also discuss how behavioural or attitudinal issues.
education and training could lead to bet-
226. By understanding a candidates val-
ter, more respected oversight investiga-
ues, attitude, and motivation, the over-
tors. This is meant to be in addition to my
sight bodies will be better able to hire
recommendations to encourage greater
the best person for the job, regardless of
social and cultural competency for all
where that person used to work.
members of oversight bodies, including
investigators, discussed in section 4.400 227. The second measure I propose is
and chapter 10. for the oversight bodies to recruit more
broadly.
222. The first measure I recommend is
chapter 4 | Composition of the Oversight Bodies 91

228. Ideally, the oversight bodies should vulnerable to challenges about their
recruit university graduates, those pos- experience and reliability when they
sessing a high level degree in law, criminal testify as witnesses. With accreditation,
justice, criminology, or a related social they are able to rely on that assurance of
science. And they should prefer those investigative competence. This not only
individuals who have a demonstrated improves their own confidence, but also
commitment to social justice. As in promotes the confidence of any adjudi-
Manitoba, the required qualifications cator in them.
and experience of oversight investigators 233. Former police officers may benefit
could be set out in a regulation.211 in a similar manner. Such investigators
229. The oversight bodies also should are not necessarily equipped to conduct
consider recruiting people with investiga- the types of investigations that the siu
tive experience from outside of policing, and oiprd engage in. After all, the siu
such as investigators with backgrounds investigates only the most serious of cases,
in child welfare, the military, regulatory ones that are often limited to specialized
fields, and the insurance industry. Such police units within a police service. Thus,
candidates present a valuable hiring pool an accreditation could serve as an indica-
for the oversight bodies to draw from. tion of their demonstrated competence
230. The third measure I recommend is in an investigative area.
accreditation through a comprehensive 234. The fourth measure I recommend is
training program. Accreditation promotes that the training and accreditation pro-
more precise quality control. It helps to gram should be one that is dedicated to
ensure competency and suitability for civilian police oversight.
the position, regardless of whether the 235. Investigators for the siu currently
candidate comes from a policing or purely receive training at the Ontario Police
civilian background. College. Some oiprd investigators also
231. Indeed, accreditation offers advan- have received training from the Ontario
tages to both investigators with a policing Police College in the past. This is prob-
background and those without one. lematic for several reasons.
232. For example, investigators with 236. Police college training risks encul-
no policing background may be more turation into an organization and mindset
92 Report of the Independent Police Oversight Review

that is inconsistent with police oversight In my view, there should be


and accountability. a separate training program
237. In addition, the Ontario Police for oversight investigators at
College focuses primarily on the train-
an institution other than the
ing of police officers. Their training is
Ontario Police College.
prioritized.
238. Oversight investigators receive their 243. Such programs are already in place
training only when classroom space is in Northern Ireland and Qubec. Indeed,
available. Since space is frequently lim- I was very impressed by the comprehen-
ited, oversight investigators are some- siveness of these programs.
times placed on a standby list for training.
244. For example, all investigative staff
239. Police stakeholders claim that with the Police Ombudsman for North-
civilian investigators lack sufficient train- ern Ireland go through thorough devel-
ing. The current system reinforces that opment programs accredited by a local
concern. university. I was informed that these
240. Most importantly, the training and programs combine attendance at knowl-
accreditation program I am recommend- edge and skills development workshops,
ing should be separate because police knowledge assessments, and workplace
programs are not designed to meet the development and assessment.
distinct requirements of oversight bodies. 245. Similarly, in Qubec, the Bureau
241. In my view, there should be a sepa- des enqutes indpendantes has recently
rate training program for oversight inves- developed and offered a four hundred
tigators at an institution other than the hour training program for its investiga-
Ontario Police College. tors. This program, presented in partner-
242. That training program could then ship with three universities, was divided
be tailored to the specialized require- into several blocks aimed at providing
ments of the police oversight bodies. investigators with the knowledge, skills,
and practical experience necessary to be
effective investigators. All investigators,
including former police officers, under-
went the same training.
chapter 4 | Composition of the Oversight Bodies 93

246. In my view, a similar training and Recommendation 4.17


accreditation program in Ontario for siu
and oiprd investigators would greatly The siu and oiprd should incorporate

benefit these investigators, and, in turn, anti-bias measures into their recruit-

the people of Ontario that they serve. ment, training, education, and eval-
uation of investigators.
247. Such a program, developed in con-
sultation with one or more post-second-
ary institutions, should combine formal
Recommendation 4.18
classroom learning with practical on-the-
job training and mentorship. It should There should be a standardized edu-
cover the roles, purposes, standards, and cation program to accredit siu and
expectations of oversight investigators oiprd investigators.
and the oversight bodies. And it should
equip investigators with the investiga-
tive tools and techniques to succeed in
Recommendation 4.19
theirwork.
248. In addition, should Ontario develop The required qualifications and
such a program, it may be able to provide accreditation of an oversight investi-
training to investigators at other oversight gator should be set out in a regulation.
bodies in Canada, especially in provinces
where they may not have enough demand
to justify creating their own program. 4.800 Oversight of the oversight
Including other oversight bodies may bodies
make such a program more feasible for
250. Many people I consulted with,
Ontario as well.
both police and civilian, thought there
249. The final measure I propose is that should be some way to deal with com-
the oversight bodies should provide ongo- plaints about the police oversight bodies
ing training and evaluation of investiga- themselves.
tors. That training and evaluation should
251. Such an avenue already exists for
focus on ensuring that an investigator is
the siu. Both the public and the police
independent and objective.
94 Report of the Independent Police Oversight Review

are free to complain to the Ontario complaints. It does so about the adminis-
Ombudsman about the siu. trative conduct of more than a thousand
252. Yet the Ombudsman does not have public sector bodies, including adminis-
jurisdiction to deal with complaints about trative tribunals.
the public complaints or discipline pro- 257. To investigate such complaints, the
cess involving the oiprd or ocpc. Ombudsman has been granted broad
253. Despite that, the Ombudsman still investigative powers. And after com-
regularly receives complaints about those pleting an investigation, the Ombuds-
processes of these bodies. For example, man is able to issue reports and make
the Ombudsman receives complaints recommendations for reforms to policy,
about the quality of the oiprds investi- legislation, and practices and procedures.
gations, its dismissal of complaints, and 258. Such a change would enable the
its practice of referring matters back to Ombudsman to promote consistency
police services. in the oversight bodies practices and
254. Since the Ombudsman lacks juris- enhance public confidence in police
diction though, it is unable to do anything oversight. Such a change would allow for
about them. greater accountability in police oversight
in this province.
255. In my view this should change. The
Ombudsman is ideally placed to handle
complaints about all three police over- Recommendation 4.20
sight bodies.
The Ombudsman should have juris-
256. The Ombudsmans office has the diction over all three police oversight
mandate to independently and impar- bodies.
tially investigate individual and systemic
CHAPTER 5

Effective Criminal Investigations

5.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

5.200 Mandate and notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99


5.210 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
5.220 Definition of serious injuries . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
5.230 Discharge of firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
5.240 Discretion to investigate and lay charges . . . . . . . . . . . . . . . . . . . 103
5.250 Former police officers, special constables, and auxiliary
members of a police force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
5.260 Notification duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
5.300 Duty to cooperate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
5.310 Scope of the duty to cooperate . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
5.320 Other police personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
5.330 Sanctions for failing to cooperate . . . . . . . . . . . . . . . . . . . . . . . . 114
5.340 Recordings of witness officer interviews . . . . . . . . . . . . . . . . . . . 115
5.350 Witness officers entitlement to records of their interviews . . . . . 116
5.360 Subject officers notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
5.370 The Harnick Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

95
96 Report of the Independent Police Oversight Review

5.100 Introduction the public demand for impartiality and


1. The siu would not have come into that post-shooting police investigations
existence in 1990 were it not for the advo- will inevitably lead to a serious deteri-
cacy of Charles Roach, Dudley Laws, the oration of public confidence.215
Black Action Defence Committee, and 7. Having the police investigate the
others; the protests of many, especially police was no longer an option. As Alan
those from Black communities; and the Borovoy, then general counsel for the
deaths in 1988 of two Black men, Lester Canadian Civil Liberties Association, put
Donaldson and Michael Wade Lawson. it in his submission to the task force, if
2. Those two men were fatally shot by you have self-investigation it just cannot
police in the Greater Toronto Area. enjoy public confidence. I mean it is just
Donaldson, a forty-five year old with a as simple as that.216
history of mental health issues, was shot 8. The task force recommended a special
in his home after allegedly threatening investigations team for investigating police
an officer with a knife.212 shootings in Ontario.217 The task force
3. Wade Lawson, who was seventeen envisioned the team operating as follows:
years old, was shot multiple times after Its mandate would be to investigate
driving a stolen vehicle towards two the facts surrounding the shooting and
police officers. An autopsy revealed that to disclose appropriate information to
one of the bullets entered through the the public on an on-going basis. Such a
back of his head.213 process, by which the public would be
4. These deaths led to a sense of crisis provided with information on a contin-
and created an atmosphere of mutual uous basis from an early stage, would
mistrust and pessimism.214 Protests be invaluable in dissipating ignorance
ensued. People demanded change. of the event and resentment from the
public. The team would be charged
5. In response, the Ontario government
with deciding whether or not criminal
appointed Justice Clare Lewis to lead a
charges against the police officer are
task force on race relations and policing.
warranted. It would be required to con-
6. That task force concluded that police vey its findings to the public and, when
internal investigations no longer satisfy warranted, to lay criminal charges.218
chapter 5 | Effective Criminal Investigations 97

9. The Ontario government listened and, When the siu began its
in turn, created the Special Investigations
operations in 1990, it
Unit (siu).
promised to improve public
10. When the siu began its operations
confidence in policing. Over
in 1990, it promised to improve public
confidence in policing.
twenty-five years later,
however, many especially
11. Over twenty-five years later, however,
many especially those from Indigenous,
those from Indigenous, Black,
Black, and other racialized communities and other racialized commu-
question how much of that promise has nities question how much of
been fulfilled. that promise has been fulfilled.
12. In 2016, after the siu cleared police
of any criminal wrongdoing in the death 15. In the next chapter, I discuss how
of Andrew Loku, a forty-five year old the siu could be more transparent and
Black man with mental health issues accountable. That discussion focuses on
who was fatally shot in his home, protests public reporting.
ensued once again. The public, especially 16. In this chapter, I make recommen-
Black communities, and groups such as dations aimed at making the siu more
Black Lives Matter, made it clear that effective at investigating police.
they still lacked trust in the police and
17. This includes clarifying what inci-
police oversight. People demanded
dents the siu should investigate and how
change.
the police should cooperate with the siu
13. In response, the Ontario government during those investigations.
asked me to review the civilian police
18. Both categories of recommendations
oversight bodies in Ontario.
target the ultimate goal of civilian police
14. This is the first of two chapters that oversight: improving public confidence in
focus on improving the publics confi- policing. They do so, however, in different
dence in the sius investigations into ways.
potential criminality.
19. Public confidence is promoted when
justice is done and seen to be done.
98 Report of the Independent Police Oversight Review

20. By being transparent and account- reasonable, necessary, and proportionate


able, the siu allows the public to see that in the circumstances.219
justice has been done. 25. Second, they are different because
21. Yet effective investigations are the the members of a police service, other
starting point for promoting public con- than a police officer under investigation,
fidence. After all, without an effective must cooperate fully with the siu.220
investigation, justice may not be done That includes the police chief notifying
in the first place. Then, of course, jus- the siu about an incident, and witness
tice cannot be seen to have been done. officers providing it with their notes and
Transparent reporting would do little to attending to be interviewed.
improve the publics trust in police and 26. Such an arrangement sounds simple
police oversight if the investigation itself enough.
was flawed.
27. Throughout its history, however, the
siu has often reported that the police,
Effective investigations
who say they value its oversight, have
are the starting point for
been less than fully cooperative.
promoting public confidence.
28. It says that the police have taken
strict interpretations of when the siu is
22. To ensure justice is done, the siu
supposed to investigate an incident and
independently investigates the police. Its
how the police are required to cooperate.
investigations, however, are unlike those
generally conducted by the police in two 29. The police, on the other hand, com-
main ways. plain that the siu pushes the boundaries
of its investigative mandate and powers.
23. First, they are different because
police officers, the subjects of siu inves- 30. Such disputes, some more legitimate
tigations, are trained, equipped and, most than others, threaten to undermine the
distinctly, authorized by law to use force. sius promise of promoting public con-
fidence in policing.
24. This means that rather than trying
to identify who caused a serious injury or 31. To resolve these disputes and ensure
death, the siu is generally trying to inves- that the siu can conduct effective inves-
tigate whether an officers use of force was tigations, I have been asked to clarify its
chapter 5 | Effective Criminal Investigations 99

mandate and make other recommenda- the time of the conduct at issue.222 And
tions accordingly. that is so even if the conduct at issue took
32. I will first address the sius man- place before the siu came into existence.
date as well as the polices duty to notify 37. Still other questions continue to
the siu. Then I examine the polices cause problems, with the meaning of the
duty to cooperate with the siu during term serious injury remaining especially
investigations. controversial.

This mandate has led to much


5.200 Mandate and notification
debate over the years about
5.210 Overview
what is meant by such terms
33. A mandate is an order, charge, or as serious injury, resulted
commission to perform a task. The sius
from criminal offences, and
mandate therefore refers to what inci-
dents the unit has been charged with
committed by police officers.
investigating.
38. In this section I look at what inci-
34. In the legislation, the sius mandate dents should trigger the sius mandate.
is to investigate incidents involving seri- This involves clarifying what falls within
ous injury or death that may have resulted the current mandate, such as the meaning
from criminal offences committed by of serious injury. It also involves rec-
police officers.221 ommending changes to the mandate so
35. This mandate has led to much debate that the siu can more effectively fulfill
over the years about what is meant by its purpose of promoting public trust in
such terms as serious injury, resulted policing.
from criminal offences, and committed 39. To that end, I recommend that the
by police officers. mandate should include all discharges
36. Some of the questions about the of a firearm at a person. Also I say that
meaning of these terms have been clari- the mandate should apply to special con-
fied by the courts. For example, we now stables employed by a police force and
know that police officers includes former auxiliary members of a police force.
police officers who were police officers at
100 Report of the Independent Police Oversight Review

40. In addition, I recommend that the 5.220 Definition of serious injuries


siu should have the discretion to inves- 44. Over the years, the most controver-
tigate any matter when it is in the public sial part of the sius mandate has been
interest to do so. And I recommend that what is meant to be included in the term
the legislation clarify that the siu may serious injuries. This has led to disputes
lay charges for any criminal offence or over what types of police-involved civilian
provincial offence, including Highway injuries require an siu investigation.
Traffic Act offences, uncovered during
45. The legislation establishing the sius
an investigation.
mandate leaves the term serious injuries
41. I also examine when the police have undefined. That is, it does not explain
to notify the siu about potential incidents what exactly a serious injury is.
that call for an siu investigation.
46. To determine its own mandate, the
42. These two issues of mandate and siu uses a definition of serious injury
notification are directly linked. The that was adopted by its first director, Jus-
polices duty to notify the siu is engaged tice John Osler. The Osler definition,
immediately when an incident occurs as that definition is referred to, defines
that may reasonably be considered to serious injuries as follows:
fall within the investigative mandate of
Serious injuries shall include those
the siu.223 So having a clear mandate
that are likely to interfere with the
also will lead to a better notification pro-
health or comfort of the victim and
cess, a process critical to the sius ability
are more than merely transient or tri-
to effectively investigate police-civilian
fling in nature and will include serious
interactions resulting in serious injury
injury resulting from sexual assault.
or death.
47. The Osler definition also provides
43. I first review what incidents should
guidance on when a serious injury should
be included in the sius mandate, fol-
be presumed:
lowed by who should be included within
that mandate. Finally, I address the police Serious Injury shall initially be pre-
duty to notify the siu. sumed when the victim is admitted to
hospital, suffers a fracture to a limb,
rib or vertebrae or to the skull, suffers
chapter 5 | Effective Criminal Investigations 101

burns to a major portion of the body his report in 1996.225 So too did Chief
or loses any portion of the body or suf- Justice LeSage in his 2011 report.226
fers loss of vision or hearing, or alleges
sexual assault. Without a more detailed
48. That definition also addresses the definition, too much is left to
situation when the police are not able to each stakeholders subjective
determine if an injury is serious without interpretation of the term.
a likely prolonged delay:
Where a prolonged delay is likely 52. And some other provinces, when
before the seriousness of the injury subsequently establishing their own
can be assessed, the Unit should be oversight bodies, have included defini-
notified so that it can monitor the tions of the term serious injury in their
situation and decide on the extent of legislation.227
its involvement.224 53. In my view, it is time that the legis-
49. Although reluctant at first, most lation defines serious injuries.
police services now use the Osler defini- 54. Without a more detailed definition,
tion of serious injuries. Some, however, too much is left to each stakeholders
still apply more restrictive definitions. subjective interpretation of the term. As
50. When police services apply differ- noted above, that leads to inconsistent
ent definitions for a key element of the reporting, and, in some cases, under-
sius mandate, it results in inconsistent reporting of the very incidents that the
siu referral practices. And for those who siu is meant to investigate.
do not apply the well-accepted Osler 55. Defining serious injuries would
definition, it results in potential under- help to clarify when the sius mandate
reporting of incidents falling within the is triggered. This, in turn, would lead to
sius mandate. In turn, the sius import- better notification by police services,
ant oversight role is undermined. ensuring that the sius important over-
51. Recognizing this problem, past sight role is not undermined.
reviewers have recommended that the 56. It also would promote public aware-
term serious injury be defined in the ness of the sius mandate. By defining
legislation. Roderick McLeod did so in what serious injuries means, and listing
102 Report of the Independent Police Oversight Review

examples of when serious injury will be police officers are to use their firearms
presumed, the public will be more aware only if they have reasonable grounds
of the types of incidents that the siu is to believe that it is necessary to do so
expected to investigate, including allega- to protect against loss of life or serious
tions of sexual assault. In section 5.260, I bodily harm.228
list the types of incidents that should be 62. This reflects the fact that discharging
included, or presumed to be included, in a firearm is the most serious use of force
the sius mandate. that an officer can use.
63. And I note that any unjustified
Recommendation 5.1 discharge of a firearm, regardless of the
severity of any resulting injury, could
Serious injuries should be defined
constitute a serious criminal offence. For
in the legislation in accordance with
instance, even if a police officer shoots at
the Osler definition.
a person and misses, it could constitute
attempted murder.
64. In my view, the siu should be
5.230 Discharge of firearms
empowered to investigate whenever a
57. In addition to clarifying the mandate police officer has discharged their firearm
on serious injuries, I also recommend at a person, regardless of whether anyone
that the legislation provide that the siu has been seriously injured or dies.
is to investigate incidents in which a
65. As touched on earlier, monitoring
police officer has discharged a firearm
such uses of force in police-civilian
at a person.
interactions is at the heart of the sius
58. The siu was established because of oversight function.
public concern for the independent inves-
tigation of police shootings in particular.
Recommendation 5.2
59. Yet the sius mandate, as currently
cast, captures police firearm use only The mandate of the siu should include
when it results in death or serious injury. all incidents involving the discharge
60. Any use of a firearm is serious. of a firearm by a police officer at a
person.
61. Under their use of force regulations,
chapter 5 | Effective Criminal Investigations 103

66. For greater certainty, I wish to point 70. During my consultations, many
out that I am not recommending that stakeholders said that the sius mandate
the siu investigate the situations set out is too restrictive.
in sections 9.1 and 10 of the use of force 71. Other forms of potential criminal
regulation.229 conduct raise the same concerns about the
67. Those excluded situations include police policing themselves that led to the
when a police officer shoots a firearm as sius creation. Such conduct may call for
part of a training exercise, target practice, independent civilian oversight because of
or ordinary weapon maintenance in accor- the strong public interests that are at stake.
dance with the rules of the police force. 72. Other provinces have recognized this
68. They also include when an officer as well.
discharges a firearm to call for assistance
in a critical situation if there is no rea- Other forms of potential
sonable alternative, and when an officer criminal conduct raise the
discharges a firearm to destroy an animal same concerns about the police
that is potentially dangerous or is so badly
policing themselves that led to
injured that humanity dictates that its
suffering be ended.
the sius creation.

73. For example, the Alberta Serious


5.240 Discretion to investigate and Incident Response Team has a mandate
lay charges to investigate any matter of a serious or
69. Finally, in addition to investigating sensitive nature related to the actions of
incidents involving serious injury, death, a police officer.230
or the discharge of a firearm at a person, 74. By convention, those matters of a
I also recommend that the siu should serious or sensitive nature include, but
have the power to investigate any matter are not limited to the following:
when it is in the public interest for it to
Allegations involving criminal fraud-
do so. And I say that the siu should be
ulent activities by a police officer;
able to lay charges for any criminal or
provincial offence uncovered during an Allegations of serious breach of trust
investigation. by a police officer;
104 Report of the Independent Police Oversight Review

Allegations together constituting a serious injury, death, or discharge of


potential systemic racism or discrim- firearm occurred.
ination; and 78. I note that similar practices take
Allegations together constituting sys- place in Alberta, British Columbia, Man-
temic fraud or corruption.231 itoba, Nova Scotia, and Qubec.232
75. To that list I also would add allega- 79. In my view, the legislation should
tions of crimes against the administration provide that the siu may investigate
of justice, such as perjury or obstruction matters when it is in the public interest
of justice. to do so.
76. I also heard of another sensitive sit- 80. Along the same lines, I also say that
uation during my consultations: when the siu should be able to lay charges
police officers wish to report incidents of for any criminal or provincial offence it
potential criminality by police colleagues. uncovers during any of its investigations.
Those officers may be unwilling to report 81. Currently, it is unclear whether the
such conduct to their own police service, siu may do so or not. The legislation says
which may include the subject officers that the siu director is to lay charges
themselves. Yet at the present time, if the against police officers in connection with
conduct in question does not fall within the matters investigated.233 It should be
the sius mandate, the complaint must explicitly set out that this includes any
be brought to the police. It may be in the criminal or provincial offence uncovered
public interest for the siu to investigate during an investigation.
such matters, since they may otherwise
82. For example, if a police officer
go unreported.
commits perjury or attempts to obstruct
77. In addition, there may be matters justice during an investigation, the siu
that, in the opinion of the police chief, should be able to lay charges against that
police services board, Attorney General, officer. It should not have to refer such
or Minister of Community Safety and serious conduct back to the officers police
Correctional Services, would be in the service, or another police service.
public interest to have investigated by the
83. Nor should it have to refer matters
siu. For such matters, they should be able
back to a police service when its investi-
to refer them to the siu, whether or not
gation uncovers other criminal offences
chapter 5 | Effective Criminal Investigations 105

or provincial offences, including offences In any event, it hardly makes


under the Highway Traffic Act.234 Indeed, sense to refer a matter for a
some police stakeholders pointed out that
second investigation when the
unfairness resulted from this potential
lack of jurisdiction. They suggested that
first one has already deter-
the siu may sometimes be laying more mined that reasonable grounds
serious criminal charges than are appro- to charge exist.
priate because of its inability to lay less
serious provincial offence charges. 88. Second, there is no reason why investi-
84. In any event, it hardly makes sense to gators that may lack the credentials to inves-
refer a matter for a second investigation tigate such matters could not be trained to
when the first one has already determined do so.This is especially so if they are working
that reasonable grounds to charge exist. together with former police officers that are
experienced with such matters.
85. Some police stakeholders were con-
cerned that the siu would not have the 89. Third, my recommendation is that
investigative expertise for investigating conducting such investigations and laying
and charging such a broad range of such charges would be at the discretion
offences. After all, they noted, investi- of the siu. That means that there would
gating other types of offences requires be nothing stopping it from declining
knowledge of the specific elements to investigate, or referring a matter to a
involved and may call for specialized police service, if, in its opinion, any inves-
investigative techniques. tigation was beyond its capacity.

86. Those concerns, however, do not 90. Therefore I do not believe that such
dissuade me for three reasons. a discretionary expansion of what the
siu may investigate and lay charges for
87. First, as discussed in section 4.720,
would lead to low quality investigations
the siu employs former police officers,
or inappropriate charges.
and most likely will continue to do so.
One of the justifications for employing 91. In my view, such additional discre-
former police officers is that they already tionary authority would allow the siu
have the skills and knowledge required to to deliver better, more efficient police
investigate a broad range of criminality. oversight to the people of Ontario.
106 Report of the Independent Police Oversight Review

Recommendation 5.3 5.250 Former police officers, special


constables, and auxiliary members of a
The siu should have the discretion
police force
to conduct an investigation into any
92. Currently, the siu is limited by its
criminal matter when such an investi-
mandate to investigating police officers.
gation is in the public interest. When
deciding whether an investigation is 93. The term police officer, however,
in the public interest, the siu should does not include special constables or
consider the following: auxiliary members of a police force.

(a) If there is a request to investigate 94. In my view, the siu also should be
from a chief of police, a police ser- able to investigate auxiliary members of a
vices board, the Attorney General, or police force and special constables when
the Minister of Community Safety and they are employed by a police force.
Correctional Services; 95. After all, these special constables and
(b) If the conduct in question involves
auxiliary members may have significant
allegations of criminal fraud, breach
interactions with the public. And they
of trust, corruption, obstruction of
perform duties that may make them, in
justice, perjury, or another serious
the eyes of the public, indistinguishable
criminal offence; or
from police. Finally, they work with the
police and, as such, investigations by the
(c) If the matter is potentially aggra- police into their conduct may raise similar
vated by systemic racism or by concerns about independence and bias.
discrimination.
96. Thus, the rationale for independent
police oversight applies to them, and they
should be included in the sius mandate
Recommendation 5.4
as well.
The siu should have the discretion to
lay charges for any criminal or pro-
vincial offence uncovered during an
investigation.
chapter 5 | Effective Criminal Investigations 107

Recommendation 5.5 5.260 Notification duty


99. In most cases, the siu depends
The sius mandate should include
on the police notifying it of incidents
investigations of auxiliary members
within its mandate. Prompt, thorough
of a police force and special consta-
police notification is the starting point
bles employed by a police force.
for effective, efficient siu investigations.
If the police take too long to notify the
97. In addition, the legislation should
siu of an incident, or fail to do so at all,
clarify that the siu may conduct inves-
any investigation may be compromised
tigations into conduct by former police
and justice may not ever be done.
officers. As noted in section 5.210, the
courts have held that the sius mandate 100. As noted earlier, the sius mandate
currently includes former police officers and the polices duty to notify are strongly
who were police officers at the time of the linked. The polices duty to notify the siu
conduct at issue.235 This applies equally if is engaged immediately when an incident
the conduct at issue pre-dates the sius occurs that may reasonably be considered
existence. And this is even though the to fall within the investigative mandate
legislation does not explicitly say so. of the siu.236

98. For the sake of clarity, however, I 101. The publics strong interest in com-
think that the legislation should specify prehensive fulfilment of the sius man-
this. date is best protected when the police err
on the side of over-reporting.

Recommendation 5.6 102. It should be for the siu, and not


the police, to make the ultimate deter-
The legislation should explicitly state mination about whether its investigative
that the sius mandate includes the mandate has been triggered. As Justice
investigation of former police officers Adams noted in his report, transparency
and matters that pre-date the estab- is better achieved when the civilian over-
lishment of the siu. sight body makes the judgment call about
whether or not the incident falls within
its mandate, rather than someone within
a police service.237
108 Report of the Independent Police Oversight Review

The publics strong interest out in the legislation will discourage the
in comprehensive fulfilment police from narrowly interpreting what
types of incidents fall within the sius
of the sius mandate is best
mandate, a practice which I heard some
protected when the police err police services engage in.
on the side of over-reporting.
107. During consultations with police
stakeholders, I also heard about situations
103. Setting out specific kinds of injuries
in which police felt compelled to notify
that are presumed to be serious will assist
the siu even though the possibility of
the police in identifying when the siu
criminality seemed remote.
must be notified.
108. This was a recurring theme in rela-
104. As noted earlier, the Osler defini-
tion to suicide attempts that involved
tion provides examples of injuries that
the attendance of police. For example,
shall initially be presumed to be serious.
in one situation an individual commit-
This language suggests that such injuries
ted suicide by jumping from a balcony
may ultimately be found not to engage
before the arrival of the police. When
the sius jurisdiction. Again, this is a
the suicide occurred, the officers were in
decision that is best left with the siu in
the apartment building but had yet to
keeping with its oversight role.
enter the deceaseds apartment. Because
105. The legislation should stipulate the incident involved a death, the siu
that the injuries specifically mentioned was notified.
in the Osler definition are non-exhaustive
109. The stakeholder suggested that the
examples. Any injury that may reasonably
mandate of the siu should be invoked
be considered to interfere with the health
only if the police have actually engaged
or comfort of the victim and is more than
with the person who was seriously injured
merely transient or trifling in nature will
or killed; not simply because the police
qualify.
were in the same area.
106. The legislation also should specify
110. In my view, such cases are still
that the siu has sole responsibility for
best referred to the siu. The siu should
assessing the criminality of incidents
be the one deciding when there is no
involving death or serious injury as a
need to investigate. After all, the siu
result of contact with police. Spelling this
chapter 5 | Effective Criminal Investigations 109

exists because of a lack of public trust (c) Without limiting the generality of
in thepolice. the foregoing, serious injury will be

111. In such cases, however, the siu presumed when the victim:

should quickly determine whether there i. is admitted to hospital;


is any possibility the matter is within its ii. suffers a fracture to a limb, rib,
mandate, and if not, close its file by way or vertebrae or the skull;
of short memorandum. And I note that it
iii. suffers a dislocation;
generally does so. Of the 253 cases closed
by the siu in 2014-2015, 100 concluded iv. suffers burns to the body;

this way.238 v. loses any portion of the body;

112. In the end, over-notification leads vi. suffers temporary or permanent


to more effective and transparent over- loss of vision or hearing; or
sight. Over-notification, rather than vii. suffers serious soft tissue
under-notification, should be encouraged. injuries;

(d) The siu must be notified of all inci-


Recommendation 5.7 dents involving allegations of sexual
assault against police officers;
The requirements for police notifi-
(e) The siu must be notified of all
cation of the siu should be set out
incidents involving the discharge of a
in legislation which should provide
firearm by a police officer at another
the following:
person; and
(a) The siu must be notified of all inci-
(f) Where a prolonged delay is likely
dents in which death or serious injury
before the seriousness of the injury
to a person may have resulted from
can be assessed, the siu must be
the conduct of a police officer;
notified so that it can monitor the
(b) Serious injuries include any situation and decide on the extent
injury that is likely to interfere with of its involvement.
the health or comfort of the victim
and is more than merely transient or
trifling in nature, including injuries
resulting from sexual assault;
110 Report of the Independent Police Oversight Review

5.300 Duty to cooperate 117. Five years later, Justice Adams 2003
113. The siu must be equipped with the report noted that, although progress had
tools to effectively conduct its investiga- been made, the duty to cooperate some-
tions. At the same time, these tools must times remained an issue.243
protect police officers fundamental legal 118. Recent police oversight stakeholder
rights. consultations indicate that some police
114. During my consultations, sev- resistance against the duty to cooperate
eral stakeholders commented that the persists. One siu investigator remarked
police generally support the idea of a that it is rare for a police service to per-
special investigations unit, but may with- form its duty to cooperate, 100 percent.
hold assistance if it is not technically 119. This observation, however, is not
required. an indictment against all police services
115. The legislation has always required and members. Many strive admirably to
members of police forces to cooperate fulfil their essential role in assisting with
fully with the siu in the conduct of inves- siu investigations. Police attitudes toward
tigations.239 This broad requirement of full the siu have generally improved over the
police cooperation which seems plain years. Initial skepticism has diminished
enough in meaning was the subject and confidence has increased. Moreover,
of debate after the siu was established. police resistance in the past has some-
This led to government action, with times been based on uncertainty about
the appointment of Justice Adams to the legal parameters of their responsi-
make recommendations to resolve the bilities. The duty to cooperate sometimes
conflict.240 raises complex issues that are entangled
with the legal rights of police officers.
116. Justice Adams 1998 report was
based on negotiations to reach a workable 120. It is within this context that I make
compromise between the investigative my recommendations concerning the
interests of the siu and the legal interests duty to cooperate and the sius investi-
of individual police officers.241 Its recom- gative tools. In my view, there is a need
mendations were given effect through a for further legislative refinement of the
new regulation on the conduct and duties meaning of the duty to cooperate and
of police officers in siu investigations.242 correlative police rights. In particular, the
chapter 5 | Effective Criminal Investigations 111

legislation should clarify the following: 124. I also was told about frequent police
the scope of the duty to cooperate; who is delays in responding to siu requests for
bound by it; the sanctions for non-com- information. In some cases, police officers
pliance; and the scope of the legal pro- have resisted or refused cooperation on
tections provided to police officers in the basis that the information being asked
relation to siu investigations. for is not relevant to the matter being
investigated.

5.310 Scope of the duty to cooperate


In my view, the conflict
121. Police force members must cooper-
between the siu and police
ate fully with siu investigations.244 That
resulting from debate about
duty is clarified further in a regulation.245
Nevertheless, gaps in the legislation the duty to cooperate could
have proven problematic and should be be addressed by more clearly
addressed. defining the duty in the
122. During my consultations, both legislation.
policing stakeholders and the siu raised
a number of concerns about the duty 125. Unfounded delays and baseless
to cooperate. When does the duty to refusals to cooperate with the siu should
cooperate begin? What information or not be tolerated. They jeopardize the
records is the siu entitled to receive? Can integrity of siu investigations. Equally
evidence be withheld on the ground that troubling, they erode public confidence
it is not relevant? in the police and civilian police oversight.

123. siu investigators, for instance, 126. In my view, the conflict between
recounted incidents of police notifying the siu and police resulting from debate
the siu, but then withholding coopera- about the duty to cooperate could be
tion pending determination of whether addressed by more clearly defining the
its mandate was engaged. Usually this duty in the legislation. This would help
occurred after a hospital admission, while better equip the siu with the tools it
awaiting medical information about the needs to conduct effective investigations
extent of the injury sustained. while protecting officers rights.
112 Report of the Independent Police Oversight Review

127. As a starting point, the current notes written by a police officer during
regulation should be strengthened. It an siu investigation. This means that only
was never meant to be exhaustive.246 It a subject officers notes written during
sets out certain aspects of police officers an siu investigation are automatically
responsibilities and procedures in an siu non-producible to the siu.249 Other types
investigation, but does not comprehen- of notes, records, and reports are gener-
sively list every component of the duty ally producible at the request of the siu.
cooperate. For example, the siu should generally
128. For example, the regulation clarifies have access to occurrence reports, arrest
issues about police officers notes on the reports, use of force reports, duty reports,
incident and siu interviews. It does not scribe notes, warrant cards, canine train-
and should not be interpreted as qualify- ing records or logs, duty notes unrelated
ing the duty of the police to comply with to the incident being investigated by
requests from siu investigators for the the siu, communication recordings and
production of other kinds of information. electronic messages, and audio or video
recordings.
129. Notably, the regulation requires that
witness officers notes on an incident be 131. The police should not be with-
given to the siu, but not the notes of a holding information based on their own
subject officer.247 Although the regulation relevance assessments. In their own inves-
does not claim to be a complete rulebook tigations, the police routinely gather all
for what the police must produce or not kinds of information that may or may
produce to the siu, police practices have not be useful in terms of advancing the
been uneven.248 siu investigators report investigation. Ultimately, if the matter
that requests for the production of records proceeds to a trial, it is for the judge to
in the possession of the police are some- decide on the relevance and admissibility
times met with resistance. In one case, of evidence.
for instance, a police service refused to 132. Simply put, the scope of the duty
comply with a request from the siu for to cooperate should be clarified in the
canine training records. legislation. There should be detailed guid-
130. The legislation should clarify that ance on the kinds of information and evi-
notes on the incident means the duty dence that the police must produce at the
request of the siu. The legislation should
chapter 5 | Effective Criminal Investigations 113

further require that the police cooperate Recommendation 5.10


immediately upon siu involvement and
respond to siu directions and requests The legislation should clarify that

forthwith. notes on the incident means the


duty notes written by a police officer
during an siu investigation.
Recommendation 5.8

The general requirements of the duty


to cooperate with the siu, as well 5.320 Other police personnel
as the timing of that requirement, 133. The duty to cooperate should not
should be set out in the legislation. be restricted to police officers. Currently,
In particular, the legislation should the duty extends to members of police
stipulate the following: forces, which includes employees of a
police force.250
(a) The duty to cooperate arises
immediately upon siu involvement; 134. As a result, civilian employees of a
and police force and employed special con-
stables are already required to cooperate
(b) The duty to cooperate requires
in siu investigations. I was told, how-
the police to comply forthwith with
ever, that in practice, this has not always
directions and requests from the siu.
occurred because some employees believe
that the duty to cooperate only applies
to police officers.
Recommendation 5.9
135. Moreover, there appears to be
The general types of information or some confusion about whether auxiliary
evidence that the siu is normally enti- members of a police force are required to
tled to receive, as well as any restric- cooperate with the siu. These members
tions on the information or evidence of a police service are appointed by the
the siu can request, should be set out police service, wear uniforms, and work
in the legislation. with police officers.
136. The legislation should make clear
that all civilian employees, special con-
114 Report of the Independent Police Oversight Review

stables employed by the police service, the siu should be able to charge any
and auxiliary members of a police force member of a police service with a pro-
must cooperate with the siu. vincial offence if they fail to cooperate.
This should be in addition to their ability
to refer misconduct complaints to the
Recommendation 5.11
oiprd, as I recommend in section 9.241.
The legislation should explicitly spec- 140. Other public investigators have a
ify that the duty to cooperate with similar sanction at their disposal.
the siu applies to civilian members
141. The oiprd currently does, for one.
of a police force, special constables
Any person commits an offence if they
employed by a police force, and aux-
obstruct an oiprd investigator or provide
iliary members of a police force.
them false information.252 The maximum
punishment for such an offence is one
year of imprisonment and a $2,000 fine.253
5.330 Sanctions for failing to
142. So too does the Ombudsman. The
cooperate
Ombudsmans legislation has the follow-
137. Even though the police are under ing sanction:
a duty to cooperate with the siu, there
Every person who,
is little that the siu can do when they
fail to do so. (a) without lawful justification or
excuse, wilfully obstructs, hinders or
138. Currently, if police officers do not
resists the Ombudsman or any other
cooperate with the siu, they may be
person in the performance of his or her
charged with neglect of duty, a form
functions under this Act; or
of misconduct under their Code of Con-
duct.251 But it is up to the police chief, (b) without lawful justification or
and not the siu, to lay such a charge. The excuse, refuses or wilfully fails to
siu is limited to asking the police chief comply with any lawful requirement of
to do so. the Ombudsman or any other person
under this Act; or
139. To me, this arrangement is incon-
sistent with the sius function as an inde- (c) wilfully makes any false statement
pendent police oversight body. Instead, to or misleads or attempts to mislead
chapter 5 | Effective Criminal Investigations 115

the Ombudsman or any other person Recommendation 5.12


in the exercise of his or her functions
under this Act, The legislation should include a pro-
vincial offence for failing to cooperate
is guilty of an offence and liable on
with an siu investigation punishable
conviction to a fine of not more than
by fine, imprisonment, or both.
$500 or to imprisonment for a term
of not more than three months, or to
both.254
5.340 Recordings of witness officer
The siu should be able to interviews

charge any member of a police 145. The legislation currently requires a


witness officers consent before the siu
service with a provincial
can audio or video record their inter-
offence if they fail to cooperate.
view.255 This requirement reflects one of
the many compromises reached through
143. In my view, if a member of a police
Justice Adams stakeholder consultations
service breaches their duty to cooperate
in 1998.256
with the siu, then there should be an
offence similar to that provided for failing 146. In his 2003 review, however, Justice
to cooperate with the Ombudsman. This Adams stated that the manual recording
would apply, for example, to a witness of siu interviews no longer made sense
officer who fails to answer a question from legal and policy perspectives. He
during an siu interview or to a member recommended that appropriate techno-
of a police service who refuses to pro- logical recording should be required.257
vide documents that the siu is entitled 147. The use of audio and video technol-
to onrequest. ogy ensures that interviews are recorded
144. Consistent with the sius indepen- accurately, comprehensively, and quickly.
dence, the decision to lay such a charge Police officers are well-aware that an
should be at the discretion of the siu. To audio or video recording is better than
be clear, laying that charge should not a handwritten recording. From time to
require consent from the Attorney Gen- time, however, I was informed that wit-
eral, a chief of police, or any other person. ness officers refuse to consent to having
116 Report of the Independent Police Oversight Review

their interviews audio or video recorded. of the record of their interviews. Wit-
148. The legislation should be amended nesses in a regular criminal investigation
to require that witness officer interviews are not, as a matter of course, provided
be audio or video recorded unless the with copies of their police statements. siu
siu believes it would be impracticable investigators raised legitimate concerns
to doso. that providing witness officers with cop-
ies of their statements could taint their
evidence if they are improperly shared.
Recommendation 5.13
151. As a result, I recommend that the
siu interviews of witness officers legislation be amended to more accurately
should be audio or video recorded reflect Justice Adams recommendation.
unless, in the sius opinion, it would
be impracticable to do so. Recommendation 5.14

The legislation should provide that


5.350 Witness officers entitlement to the siu may provide a copy of the
records of their interviews record of a witness officers interview
to the witness officer if, in the sius
149. The legislation requires that the siu
opinion, it is appropriate to do so and
provide witness officers with a copy of the
on conditions that the siu deems to
record of their interviews.258 This require-
be appropriate.
ment reflects a recommendation made
in Justice Adams 1998 report.259 Impor-
tantly, Justice Adams recommended that
a copy be provided on appropriate con- 5.360 Subject officers notes
ditions and suggested that the siu may 152. All police officers make notes on
want to impose reasonable conditions events that occur during their shift. This
when providing the copy.260 This caveat includes an incident giving rise to an siu
did not make its way into the legislation. investigation.
150. During my consultations, siu inves- 153. The legislation currently requires
tigators rightly questioned why police that subject officers complete their notes
witnesses should be provided with a copy at the end of their shift, but protects these
chapter 5 | Effective Criminal Investigations 117

notes from being disclosed to the siu.261 interpretation because it is an exceptional


154. The rationale for this protection is protection. In ordinary criminal investi-
the principle against self-incrimination.262 gations, the police often obtain evidence
It is the result of a recommendation at the investigative stage that is ultimately
in Justice Adams 1998 report.263 It is inadmissible at trial. Moreover, I was told
grounded on the premise that a subject that in non-siu criminal investigations
officers duty to make notes arises after involving a police officer, police investi-
an incident when the siu has invoked its gators have access to the officers notes.
mandate and the officer is in an adversar- 158. As a result, when a subject officer
ial relationship with the state.264 prepares notes on an incident before siu
155. There is a question, however, about involvement, the notes should be pro-
how far the protection extends. Criminal vided to siu investigators. While the
acts may evade prompt detection. The notes are unlikely to contain an admission
victim of a sexual assault committed by of criminality, they may have important
a police officer may not make a complaint corroborative value. They should be
until days or even years after the incident. produced.
Should the officers notes of the incident
written days or years earlier before any Recommendation 5.15
siu involvement be produced to the siu?
A subject officers notes on an inci-
156. In my view, the answer is yes. First,
dent prepared before siu involvement
the context is materially different if notes
should be produced to siu investiga-
are made at a time when a criminal
tors upon request.
investigation is not pending. In those
cases, there is no adversarial relation-
ship between the police officer and the
state. The factors underlying the principle 5.370 The Harnick Directive
against self-incrimination do not weigh 159. There is a policy directing Crown
in favour of applying the principle.265 counsel in siu prosecutions to refrain
157. Second, the prohibition on pro- from adducing notes or statements made
viding a subject officers notes to the by subject officers that were compelled
siu should not be given an overbroad during an siu investigation.266 Known as
118 Report of the Independent Police Oversight Review

the Harnick Directive,267 the policy was developments in the case law.270 With-
the result of a recommendation in Justice out weighing in on this issue, I believe it
Adams 1998 report.268 Relying again on should be re-examined.
the principle against self-incrimination,
Justice Adams recommended that this
Recommendation 5.16
evidence not be used in a criminal pro-
ceeding to incriminate officers or impeach The Attorney Generals directive
their credibility.269 granting immunity for subject offi-
160. Questions have arisen, however, cers notes and statements in siu
about whether the Harnick Directive prosecutions should be re-assessed
has fallen out of step with subsequent in light of subsequent jurisprudential
developments.
CHAPTER 6

Transparent and Accountable Criminal


Investigations

6.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

6.200 Release of names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122


6.210 Subject officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
6.220 Witness officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
6.230 Civilian witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

6.300 Public reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126


6.310 Current public reporting practices . . . . . . . . . . . . . . . . . . . . . . . . 127
6.320 Final reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
6.330 Initial and intermediate reports . . . . . . . . . . . . . . . . . . . . . . . . . . 134

6.400 Past reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

6.500 Investigative timelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

6.600 Coroners inquests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

119
120 Report of the Independent Police Oversight Review

6.100 Introduction also worry that the siu may not be all
1. Is the siu transparent and account- that good at investigating police officers.
able enough? To answer that question, 7. In my consultations, there was a gen-
you have to look at why the siu came eral public perception of the following:
into being in the first place. The siu almost never charges officers;
2. The siu was created after a public Almost all of the siu investigators are
outcry for independent, impartial inves- former police officers;271
tigations of police officers. Its purpose
Some siu investigators appear to be
was to ensure that police officers were
biased because they wear police rings
accountable for their actions, and in so
or other items that display their affili-
doing, to promote public trust in policing.
ation with being former police officers;
3. The public got an independent inves- and
tigation unit. Although not all Ontarians
The siu is secretive and unaccountable
are aware of it, the siu operates inde-
to the public.
pendently of police.
8. Of course, the sius charge rate
4. The siu does not answer to a police
which in 2014-2015 was 5 percent of
chief or to the opp Commissioner. And
investigations closed does not nec-
its leader, the siu director, cannot have
essarily prove that the siu is biased or
ever been a police officer.
otherwise ineffective.272
5. In addition, investigators cannot be
9. After all, the siu investigates incidents
current police officers. That is, they can-
that are not necessarily crimes. For exam-
not be police officers who are temporarily
ple, they investigate car accidents and
transferred to the unit, which is done in
apparent suicides in which it is not even
other provinces such as Alberta and Nova
clear that a police officer contributed in
Scotia (see section 4.724).
any way to an injury or death. And police
6. Yet despite this independence, mem- officers are justified in using as much
bers of the public question whether their force as is necessary for law enforcement
independent investigation unit is impar- purposes.273
tial. That is, people worry that the siu
10. Also, just because someone used to
may have a pro-police bias. Some people
be a police officer, it does not mean that
chapter 6 | Transparent and Accountable Criminal Investigations 121

they cannot possibly investigate a current 18. For the siu to fulfill its purposes
police officer without bias. then, it is crucial that it shares what it
11. The problem, however, is that the has done and how it has made decisions.
public is unable to closely examine Transparency and accountability are not
whether the siu is doing its job properly. just good goals for the siu, but features
To many of them, it feels like the siu is essential to its success.
telling them to just trust us.
The problem, however, is
12. Without the siu sharing more
information, the public is left to wonder
that the public is unable to
whether each investigation was effective closely examine whether the
and unbiased or not. siu is doing its job properly.

13. As the Ombudsman put it in 2008, To many of them, it feels like


such secrecy only breeds suspicion.274 the siu is telling them to just
14. This is no small problem. It goes to trust us.
one of the main purposes for which the
siu was created: to promote public trust 19. Later in this section I explore three
in policing. specific questions that the government
asked me about the transparency and
15. If the public is suspicious of the
accountability of the siu. I will answer
police, whether rightly or wrongly, the
these in brief now before expanding on
relationship between the police and the
them later.
public will be damaged.
20. First, should more information
16. Thus, the siu must not only be
be released to the public about siu
effective at holding police accountable,
investigations?
but it also must be seen to be effective
at doingso. 21. My short answer is yes. The siu
needs to release more information so that
17. And if it is not effective, the public
members of the public can scrutinize the
must be able to hold the siu accountable.
results of investigations. I provide guide-
The public needs to know whether the
lines for how it should do so.
siu is doing the job it is supposed to be
doing.
122 Report of the Independent Police Oversight Review

22. Second, should the names of subject 28. I will first address the release of
officers be released? names issue. Next, I discuss public
23. In my opinion, a subject officers reporting, including interim reporting
name should be released in the same and the release of the directors final
circumstances that the name of a civilian report. Then, I explain my recommen-
under investigation would be released. dations on the release of past reports.
Finally, I touch on two other issues
24. That is, at the end of an investiga-
related to transparency and accountabil-
tion, it should be released if the officer
ity: the timeliness of siu investigations
is charged.
and coroners inquests.
25. As I will touch upon later, releasing
an officers name does not make a com-
pleted investigation any better. Nor does 6.200 Release of names
it do much to help people understand the 29. The Ontario government asked me
charging decision. whether the names of subject officers,
26. Third, in cases where no police offi- witness officers, or civilian witnesses
cer was charged, should past reports be should be released to the public.
released? 30. Answering this question involves bal-
27. I recommend that past reports be ancing those individuals privacy interests
released, subject to the privacy consid- against the public interest in transparent
erations of affected persons and families, investigations and police accountability.
in the following cases: 31. I will answer the question first for
In every case involving a death; subject officers, followed by witness offi-
cers, and then civilian witnesses.
In any case, when requested by the
affected person, or if that person is
deceased, a family member of the 6.210 Subject officer
affected person; and 32. In my opinion, if an officer has been
In any other case, when requested by charged, then that officers name should
any individual, if there is a significant be released to the public by the siu.
public interest. 33. When police officers are charged by
the siu they formally become accused
chapter 6 | Transparent and Accountable Criminal Investigations 123

persons before the court. Like any other also properly the subject matter of a siu
person, they remain presumed innocent. press release since it is the charging body.
That presumption of innocence stays with The charge is the culmination of the sius
them until the very end of the criminal investigation. The siu should communi-
proceedings. They are only found guilty cate the results of its investigation to the
if the Crown can prove the case beyond public when charges are laid by releasing
a reasonable doubt and a finding of guilt the name of the officer and the charges
is entered by the court. laid against them.
34. The court system in Canada has 39. In short, the name goes out.
always recognized the open court prin-
ciple as a hallmark of a democratic soci- An accused police officer before
ety and the cornerstone of the common the court does not enjoy any
law.275 special status or privileges.
35. This means that, with limited excep- Like almost every other
tions, everything that happens in a court
accused person, the officers
is public and can be published by the
name and their charges are
media. This includes the accuseds name,
their charges, evidence entered as exhibits, matters of public record.
and the testimony heard in court.
40. But should an officers name be
36. An accused police officer before the
released when they are not charged? In
court does not enjoy any special status
my opinion, the answer is no.
or privileges. Like almost every other
accused person, the officers name and 41. Views on this issue are highly
their charges are matters of public record. polarized.

37. When the siu charges an officer, 42. The police strongly oppose the
the name of the officer will inevitably be release of subject officers names when
made public in court. There is no reason the siu determines that there has been
to withhold the officers name and their no criminal wrongdoing. They point out
charges from the public when it is, as a that the police do not generally release
matter of law, a public fact. the names of citizens who are the subject
of investigations unless and until charges
38. The officers name and charges are
124 Report of the Independent Police Oversight Review

are laid. The police say that it would be the line of duty. They point out that police
unfair to impose a different standard on officers are not like ordinary citizens. That
police officers. is because they have been granted special
43. The police are also concerned about authority by the state. They also point out
protecting the privacy interests of subject that the use of force by a police officer on
officers and their families. They submit a citizen is a very public event, committed
that despite being cleared of criminal by a public servant. It is unreasonable for
wrongdoing, officers may still be publicly the officer to expect anonymity.
stigmatized, particularly when they live 46. Those who support the release of
in small communities. names also emphasize the importance
44. The police are also concerned about of permitting the public to probe the
the risk of retaliatory action by persons officers past. They argue that this is a
who do not accept the sius decision, valuable safeguard against the danger of
not only to themselves, but also to their repeated misbehaviour passing unnoticed.
families. 47. I am sympathetic to the situation
of police officers who must resort to the
This issue is the by-product necessary use of force against civilians in
of a larger problem: a crisis the line of duty. In addition to the strain
of public confidence in siu of a criminal investigation, and other
related employment investigations, they
charging decisions. The cause
must grapple with the emotional fall-out
of that problem is a lack of of a traumatic event.
information shared with the
48. Still, if releasing subject officers
public about those decisions. names was necessary to uphold import-
ant public interests, then the personal
45. In contrast, many members of the interests of officers would have to yield
public strongly support the public release to overriding concerns. It would be an
of subject officers names even when they unpleasant but unavoidable consequence
are not charged after siu investigations. of their chosen livelihood. But in my view,
They say that the public has the right to this is not the case.
know the name of a police officer who
has seriously injured or killed a civilian in
chapter 6 | Transparent and Accountable Criminal Investigations 125

49. This issue is the by-product of a 53. Those forms of transparency make dis-
larger problem: a crisis of public con- closure of the officers name unnecessary.
fidence in siu charging decisions. The 54. As to the publics ability to probe
cause of that problem is a lack of infor- the officers history, in my view, it is the
mation shared with the public about siu, and not the public, who should be
those decisions. the one to investigate that.
50. It is a problem that has become 55. After all, it is the siu that is tasked
deeply entrenched, particularly among with laying criminal charges, not the
members of marginalized communities. public. In fact, by the time the public
The experience of these communities would uncover such information, it would
leaves little room for blind optimism already be too late. And the siu has more
about the fairness and efficacy of police tools than the public to investigate any
oversight. They need solid evidence. But relevant past conduct.
providing officers names would do little
56. This is yet another concern that is
to advance that objective.
best addressed through thorough inves-
51. Releasing the officers name would tigations and more transparent reporting,
not make the siu investigation any better. which would include reporting about
And it would not improve transparency any investigation into the officers past
in a meaningful way. That is, it would not conduct.
make it any easier to understand what the
siu did to investigate, or why the siu did
Recommendation 6.1
not lay charges.
52. In the next section, I make rec- At the end of an investigation, the siu
ommendations that would provide for should release the name of a subject
greater transparency. For example, I officer if the officer is charged.
recommend that the siu share with the
public the investigative steps taken, all
relevant evidence, explanations of legal 6.220 Witness officer
standards applied, and reasons for the
57. The public interest in the names of
directors conclusion.
witness officers is lower than that for
subject officers.
126 Report of the Independent Police Oversight Review

58. Unlike a subject officer, a wit- Recommendation 6.3


ness officer is not under any criminal
investigation. The names of civilian witnesses
should not be released.
59. Releasing a witness officers name
would add little to the publics under-
standing of the sius investigation.
6.300 Public reporting
60. Accordingly, I do not think they
should be released. 64. The siu must be more open, candid,
and communicative than it is now.
65. I will first briefly set out the sius
Recommendation 6.2
current reporting practices. Then I will
The names of witness officers should discuss how the siu should report at the
not be released. end of an investigation, followed by initial
and intermediary reporting.
66. For final reports, I say that the siu
6.230 Civilian witness needs to release them to the public
61. No one argued that the names of in every case in which it does not lay
civilian witnesses should be released. charges.

62. I do not see any reason why they 67. Those reports must allow the public
should be. Releasing a civilian witness to closely examine the directors decision.
name may be an unjustified invasion of That means they should contain sum-
their privacy. maries of all relevant evidence, including
witness statements, unless there is a good
63. In addition, if the siu regularly
reason not to include such evidence. They
released the names of its witnesses, with-
also need to explain the relevant legal
out their consent, it may make people
standards applied and how the director
less likely to speak to its investigators in
made the decision.
the future.
68. For interim and intermediary
reporting, I say that the siu needs to
provide more context in those reports.
This is to ensure that the public appreci-
chapter 6 | Transparent and Accountable Criminal Investigations 127

ates what is going on, and is not unnec- cases, major vehicle incidents, or cases
essarily alarmed. that have a lot of public interest.
73. The siu puts out three different types
6.310 Current public reporting of news releases: initial news releases,
practices intermediary news releases, and final
news releases.
69. Despite how important it is for the
siu to communicate with the public 74. In initial news releases, the siu alerts
about its investigations, the siu is not the public that it is investigating a matter.
required by law to do so. Subsection It provides details such as the number of
113(8) of the Police Services Act only investigators assigned, the time and loca-
requires the siu director to report the tion of the incident being investigated,
results of investigations to the Attorney the police service involved, and a short
General. Instead the siu reports to the summary of the incident.
public as a matter of policy. 75. In intermediary news releases, the
70. The siu currently reports to the pub- siu updates the public on details such as
lic in two main ways. the number of officers designated as sub-
jects of the investigation and any change
71. First, it generally releases annual
in the condition of the affected person.
reports. These annual reports detail
These news releases are sometimes used
things such as how many incidents it
to ask for witnesses to come forward as
investigated, what types of incidents it
well.
investigated, how many of those inves-
tigations resulted in criminal charges, 76. In final news releases, the siu pro-
and how long investigations took on vides the public with a summary of its
average. completed investigation.

72. Second, the siu provides news 77. This summary is based on the direc-
releases for specific investigations. But tors final report, which is generally not
it only does so in about one out of four shared with anyone outside the siu other
cases. The siu told me that it cannot than the Attorney General.
report on more cases because of a lack 78. If the officer is charged, the final
of resources. Instead it focuses on issuing news release is brief and includes the
news releases in all firearm cases, death officers name, the offence for which
128 Report of the Independent Police Oversight Review

they were charged, and their next court 6.320 Final reports
appearance. 84. There is an overwhelming need for
79. If the officer is not charged, the final greater transparency in cases where the
news release is more extensive. It will gen- siu decides not to lay a charge.
erally include details such as how many 85. The public demands it. Members of
investigators were deployed, the number the public want to be able to decide for
of civilian witnesses interviewed, the themselves whether the siu conducted a
number of witness officers interviewed, thorough investigation, made appropriate
and whether the subject officer was inter- findings of fact, and impartially deter-
viewed or provided their notes. mined that charges should not be laid.
80. In these final news releases, the siu
reports on the facts found by the direc- There is an overwhelming
tor, but not the evidence on which those need for greater transparency
findings of fact were made. For example, in cases where the siu decides
it does not provide summaries of witness
not to lay a charge.
interviews.
81. Sometimes the final news release will 86. The current news release style of
then paraphrase the directors reasons for reporting does not allow them to do so.
not laying a charge. Other times it quotes
87. The current style of reporting tells
parts of the directors reasons from the
the public that a pellet gun looked like
report.
a real gun, rather than showing them a
82. All three news releases conclude with picture of it. The current style reports
a general description of the siu. what the director saw in a video of the
83. The siu also uses social media to incident, rather than sharing the video.
notify the public that it has issued a news 88. And the current style of reporting
release, and at times to respond to issues tells the public what the director thinks
that have generated significant public happened, but without sharing any wit-
interest. ness statements that may support or
contradict the director.
89. The current news release style of
chapter 6 | Transparent and Accountable Criminal Investigations 129

reporting is not good enough. The public subject to the directors discretion to
wants the directors report. withhold information on the basis that
90. The police support releasing the disclosure would involve a serious risk
directors report too. In fact, they have of harm.282
been saying so since at least as far back 94. The Ombudsman warned that the
as 1998, when Justice Adams did his first absence of publicly available explanations
review of the siu.276 And they said it for the siu directors decisions only helps
again for Justice Adams follow-up report, feed conspiracy theories by critics who
published in 2003, noting that releasing believe the siu favours or is [in] collusion
the final report could clear the air in with police.283
respect of their involvement.277 95. Given this broad support, why
91. For his part, Justice Adams recom- doesnt the siu already release its final
mended that the siu release its reports report in cases in which it does not lay
to the public.278 In his 1998 report, he charges?
said that [a] public report seems central 96. The siu says that its main reason for
to providing accountability and com- not doing so is that it believes it will hurt
munity confidence, and he noted that the units ability to effectively investigate
[c]oncerns about personal information police. The siu fears that witnesses will be
can be accommodated by judicious edit- reluctant to come forward if they know
ing of the written report.279 that what they tell investigators will be
92. Justice Adams recommended that reported.
[t]he written report of the siu should be 97. And it notes that the release of wit-
made public where no charges are laid.280 ness evidence would conflict with the
93. Ontarios Ombudsman made a sim- confidentiality assurance that it provides
ilar recommendation in 2008, which was to witnesses. That assurance currently
repeated in 2011.281 The Ombudsman provides that [a]nything you tell us will
recommended the following: be kept confidential by the siu, unless you
The Special Investigations Unit should consent to its release or unless we have to
be legislatively required to publicly release it by operation of law.
disclose directors reports in cases 98. Other concerns about releasing more
involving decisions not to charge, information include the following:
130 Report of the Independent Police Oversight Review

If people are identified or identifiable, 101. Otherwise, the public will remain
the Freedom of Information and Pro- suspicious of both the siu and the police,
tection of Privacy Act may restrict the whether investigations are effective or not.
release of information about them or
the information they provided to the In my view, these concerns do
siu; not outweigh the strong public
It would be too time-intensive to interest in releasing the final
prepare public reports, given the sius report when no charges are laid.
resources; The public needs more informa-
The affected person, or another wit- tion about investigations.
ness, may be the subject of a criminal
investigation and reporting what they 102. The siu could prepare its reports in
said may compromise their right to such a way that minimizes many of the
silence; and concerns listed above.
The release of the report may otherwise 103. For example, in jurisdictions such
jeopardize the fairness of other legal as Manitoba and British Columbia, they
proceedings that arise out of the same summarize what witnesses said. They then
incident. draft the final reports without informa-
99. In my view, these concerns do not tion that would identify the witnesses or
outweigh the strong public interest in other persons involved.284
releasing the final report when no charges 104. This avoids running into personal
are laid. The public needs more informa- privacy concerns. Such concerns can gen-
tion about investigations. erally be avoided so long as the persons
100. To fulfill its purpose, the siu must involved in the incident are not identified
provide the public with enough infor- or identifiable.285 And when drafted in
mation so that members of the public such a fashion, the anonymous summaries
can know the relevant evidence, assess would not appear to threaten the fairness
whether it was properly analyzed, and of other proceedings.
closely examine whether the directors 105. The siu says that if it releases sum-
conclusions are sound. maries of witness statements, even ano-
chapter 6 | Transparent and Accountable Criminal Investigations 131

nymized ones, witnesses will be reluctant Recommendation 6.4


to come forward in the future.
The legislation should provide that
106. I disagree. This fear appears to be
the siu reports to the public on every
completely speculative. I was informed
investigation.
that it has not been the case in Manitoba
and British Columbia, jurisdictions where
111. However, the form and the extent
the oversight bodies generally summa-
of the report to the public at the con-
rize each witness evidence in their final
clusion of the case would depend on the
reports.
category of case at issue.
107. After all, these are witnesses to
112. The siu closes cases in three dif-
criminal investigations. They are under
ferent ways:
no illusion that what they say will never
be shared. Rather, they know that if the By withdrawing from the case after
officer is charged they would be expected a preliminary investigation that
to testify in open court. And they know determined that its mandate was not
that the information may be released by engaged (see recommendation 6.5);
operation of law. By fully investigating and laying crim-
108. Of course, there may be extenuating inal charges against the officer (see
circumstances. If there is a risk of serious recommendation 6.6); and
harm to a witness, the director should By fully investigating and determining
retain discretion to exclude information. charges are not appropriate (see rec-
But such a risk would seem to be rare. ommendations 6.7 to 6.10).
109. What I propose then is that the 113. First, for cases where the siu with-
siu report to the public in the following draws after a preliminary investigation,
manner, which I have modelled in part the public has an interest in the release
after the practice of British Columbias of the reasons why the siu determined
Independent Investigations Office. not to investigate. But that interest is not
110. The siu should report to the public acute or urgent.
in all cases. 114. These are cases where the siu is
notified of an incident by a police force
and begins to investigate, only to deter-
132 Report of the Independent Police Oversight Review

mine that its mandate is not invoked. The officers name;


This may be because the injury at issue The offence charged and when
does not meet the definition of serious charged; and
injury. It also may be because there is
Details about the officers next court
not a sufficient connection between the
appearance.
injury or death and the officers actions.
118. If the officer is charged, public
115. In these cases, the siu closes the
reporting should be minimal. This is to
case by memorandum and does not issue
avoid interfering with the integrity of the
a final directors report. The memorandum
criminal proceeding.
will specify why it is the siu mandate was
not invoked or was withdrawn.
Recommendation 6.6
116. For these cases, the siu should still
report to the public. But it should do so
For cases that result in a criminal
in its annual report by providing a list
charge, the siu should release the
of the cases where it was notified and
following information:
then either did not invoke or withdrew
its mandate. In doing so, it also should (a) The officers name;

specify the reason for its decision. (b) The offence charged and when
charged; and

Recommendation 6.5 (c) Details about the officers next


court appearance.
For cases where the siu is notified
but does not invoke or withdraws
119. Third, if the siu does not lay
its mandate, the siu should report in
charges, the siu should issue the directors
summary the reasons for its decisions
report to the public.
as part of its annual report.

117. Second, if the siu lays charges, it Recommendation 6.7


should continue its current practice and
For cases that do not result in a crimi-
issue a brief bulletin that includes the
nal charge, the siu should release the
following:
directors report to the public.
chapter 6 | Transparent and Accountable Criminal Investigations 133

120. While this report may be prepared (d) Any relevant video, audio, or pho-
by a communications team member, to tographic evidence of the incident
ensure accountability, it should be signed in question, modified to the extent
by the ultimate decision-maker, which necessary to remove identifying
would be the director or deputy director information;
of investigations.
(e) An explanation for why any of
121. It should include enough informa- the evidence listed above was not
tion to allow members of the public to included in the report;
closely examine the investigation and the
(f) A detailed narrative of the event;
directors decision.
(g) The reasons for the directors
decision, including (i) the reasons for
Recommendation 6.8
preferring some evidence over other

For cases that do not result in a contradictory evidence, (ii) an expla-

criminal charge, the directors nation of any relevant legal standard,

report should include the following and (iii) an explanation why the con-

elements: duct did not meet the standard for


laying charges; and
(a) An explanation why the incident
falls under the sius mandate; (h) A statement on whether the mat-
ter has been referred to the oiprd
(b) A summary of the investigative
as well as whether there were any
process, including an investigative
issues with cooperation relating to
timeline;
the investigation.
(c) A summary of the relevant evi-
dence considered, including (i) phys- 122. Every item of evidence would not
ical evidence, (ii) forensic evidence, necessarily have to be shared or summa-
(iii) expert evidence, and (iv) witness rized in every case. Rather, what evidence
evidence, which would include any is relevant would depend on the circum-
evidence obtained from the subject stances of each investigation.
officer; 123. Also, in light of this recommenda-
tion, the siu should update the confi-
134 Report of the Independent Police Oversight Review

dentiality assurance it provides witnesses. (d) Any information whose release is


Investigators should tell them that an otherwise prohibited or restricted by
anonymized summary of their evidence law; and
will be released to the public.
(e) Any information that could iden-
124. However, the directors report tify a victim of sexual assault.
should not contain certain types of infor-
mation whose inclusion would do more 125. Finally, the siu should adopt a
harm than good. That includes informa- release procedure that is accessible to the
tion whose release could lead to a risk of public and sensitive to the reports impact
serious harm, an unnecessary invasion of on persons or organizations affected by
privacy, or a violation of a legal restriction. its release.

Recommendation 6.9 Recommendation 6.10

For cases that do not result in a For cases that do not result in a
criminal charge, the directors report criminal charge, the directors report
should not include the following should be published online on the siu
information: website. Copies of the report should

(a) Names of subject officers, witness be provided to (i) the affected person

officers, affected persons, or civilian or their next of kin, (ii) any subject

witnesses (or any other evidence or officer, (iii) the chief of any involved

information identifying them to the police service, and (iv) the Attorney

public); General.

(b) Any information that, in the dis-


cretion of the director, could lead to
6.330 Initial and intermediate
a risk of serious harm;
reports
(c) Any information disclosing con-
126. For initial and intermediate report-
fidential police investigative tech-
ing, the main concern raised is that the
niques and procedures;
public is not provided with enough infor-
mation to understand what is happening.
chapter 6 | Transparent and Accountable Criminal Investigations 135

Without context, some cases sound much the siu and police are restricted by
worse than they actually are. law from reporting on incidents under
127. For example, the police often investigation.286
respond to calls when someone is suicidal. 133. Generally speaking, the police may
Sadly, sometimes they do commit suicide. only say that the siu has been notified
Because there has been a police-civilian about an incident and is investigating.
interaction resulting in a civilian death, The police are not to disclose any further
the siu is notified and investigates. information about the investigation or
128. The siu initial news release then the incident.
typically reads something like this: 134. And the siu is generally not
The police responded to a call at an allowed to make any public statement
apartment building at 150 Main Street. about an ongoing investigation either. It
Officers attended a unit on the 14th may only make a public statement if it is
floor. A short time later, a man fell aimed at preserving the integrity of the
from the 14th floor balcony to the investigation.
ground. He was pronounced dead at 135. The main reason for these restric-
the scene. tions is to avoid tainting witnesses evi-
129. The news release then specifies how dence, which is a legitimate concern.
many investigators have been assigned, 136. In my opinion though, the siu also
urges witnesses to contact the siu, and should be allowed to provide information
describes the general role of the siu. to the public to maintain public confi-
130. What is missing is the right amount dence, especially when to do so does not
of contextual information for readers. threaten the integrity of the investigation.
The siu should not be under-reporting
131. Instead there is a void created that
in such a way that it unnecessarily shakes
is all too often filled with public or media
public confidence.
speculation did an officer throw some-
one off a balcony? Sometimes the lack of 137. In some cases, fixing this could
context makes that speculative conclusion be as simple as explaining that the siu
seem the more likely one. investigates incidents to see if there is any
connection between an officers conduct
132. Part of the problem is that both
and the death or serious injury sustained.
136 Report of the Independent Police Oversight Review

In others, it may involve summarizing should be released. And, if so, what form
the nature of the call that the police were they should take.
allegedly responding to. 143. This is a complicated question for
three reasons.
Recommendation 6.11 144. The first reason is that the past
reports were not drafted for public con-
The legislation should be amended
sumption. That is, they often contain
to allow the siu to make public state-
information that should not be shared
ments during an investigation when
with the public. This includes information
the statement is aimed at preserving
that, if released, could endanger some-
public confidence, and the benefit of
ones safety, or information whose public
preserving public confidence clearly
release is prohibited by law.
outweighs any detriment to the integ-
rity of the investigation. 145. In short, they contain some of the
types of information I earlier concluded
should not be included (see recommen-
dation 6.9). This means that some careful
6.400 Past reports
screening and editing of the past reports
138. Ideally, the siu directors report would be required.
would have been released at the conclu-
146. The second reason is that the siu
sion of every investigation in the past
has given witnesses various confidentiality
when no charges were laid.
assurances over the years. Releasing the
139. Of course, with very few exceptions, reports may conflict with those confiden-
they were not. tiality assurances.
140. Instead those reports, often lengthy 147. These confidentiality assurances are
and detailed, were sent to the Attorney meant to make witnesses feel comfort-
General. able enough to speak to the siu. Some
141. Those reports still exist. Both the witnesses worry that speaking to the siu
siu and the Attorney General have a set. could lead to retaliation against them.
Others worry that the information they
142. The Ontario government has now
give might incriminate them or otherwise
asked me whether those past reports
get them in trouble with the law.
chapter 6 | Transparent and Accountable Criminal Investigations 137

148. To comfort those witnesses, the siu And it is fair to ask the Attorney Gen-
assures them that your information will erals ministry to do it, as the Attorney
be treated as confidential, and only shared General has been the minister responsible
in limited circumstances. Public reporting for the siu for over twenty years.
is not one of the limited circumstances 154. I am not prepared to say that past
under which witnesses are informed their reports need to be released in every case.
statements may be shared. Given the significant backlog and the
149. Thus, if past reports are released, the careful review that each report would
government will have to be very careful require, it would be very time-consum-
not to include any information that may ing to release each one. Yet there may
reveal the identity of those witnesses. be little interest in many of those past
150. The third reason releasing past reports. Preparing reports of little inter-
reports is complicated is that there is a est would delay the release of reports of
significant backlog of unreleased ones. greater interest.
After all, the siu has concluded over 155. Instead, past reports should be
five thousand investigations in the more released in every case in which there is
than twenty-five years that it has been in a significant public or private interest,
operation. With few exceptions, reports subject to the privacy interests of the
have not been publicly released. affected person or of surviving family
151. This backlog would not be a prob- members, in cases where the affected
lem if the reports were already in a for- person is deceased.
mat suitable for public release. But, as
indicated, they are not. This means that
I think the person who
it would take a lot of time and a lot of was seriously injured, or a
work to prepare all of the past reports for surviving family member,
public release. always has a significant
152. So what should be done? private interest in knowing
153. I say that the Ministry of the Attor- why the circumstances of their
ney General, and not the siu, should pre- significant injury did not
pare the reports for release. Such a job warrant a criminal charge.
would place too big a burden on the siu.
138 Report of the Independent Police Oversight Review

156. First, in my view, there is a signif- Recommendation 6.12


icant public interest in any siu investi-
gation into a persons death. While the The Attorney General should

public interest is significant in such cases, release past reports in the following

it should not outweigh all other inter- circumstances:

ests. Rather, that public interest should (a) In all incidents in which a per-
be balanced against the privacy interests son died, prioritizing cases in which
of the affected families. In addition, in there was no coroners inquest, sub-
some of these cases the public interest ject to the privacy interests of the
may be lower because a coroners inquest deceaseds family;
may have been held. Such cases should
(b) In any incident on request of the
not have the same priority as other ones
affected person, or if the affected per-
where many of the facts remain unknown.
son is deceased, a family member of
157. Second, I think the person who was the affected person; and
seriously injured, or a surviving family
(c) On request of any individual, when
member, always has a significant private
there is significant public interest in
interest in knowing why the circum-
the incident reported on, subject to
stances of their significant injury did not
the privacy interests of the affected
warrant a criminal charge.
person, or if the affected person is
158. Third, there are other cases in which deceased, the privacy interests of
the public has a significant interest in that persons family.
knowing about the investigation, but
which may not fall into the first two 159. For the reasons set out earlier, past
categories. Those cases affect public reports will need to be edited to pro-
confidence in policing and police over- tect sensitive information. Since these
sight. The Attorney General should reports were not originally drafted for
thus exercise discretion to release those public release, substantial redaction of
reports on request of any individual, after their contents may sometimes be nec-
considering any privacy interests of the essary. This unavoidable reality may give
affected person or, if the affected person rise to bad optics. People may question
is deceased, that persons family.
chapter 6 | Transparent and Accountable Criminal Investigations 139

whether relevant information was with- 163. Long delays benefit nobody. They
held unnecessarily. are particularly hard on affected persons
160. We saw this happen recently when and the police officers under investigation.
the Attorney General released the siu 164. Anecdotally, I heard that the
directors report in the Andrew Loku siu would often take twelve to sixteen
case. months to close a file, even for simple
161. The best way to address this prob- investigations.
lem is to assist the readers understanding 165. To reduce delay, I earlier recom-
of why certain information was removed. mended that the siu should have a deputy
This could be accomplished by inserting director of investigations (see recommen-
explanatory editorial notes in the body dation 4.7). That person would share the
of the report. These notes could describe siu directors power and responsibility
the nature of the information that was for laying charges.
removed and explain why it was necessary 166. I also recommended that a pub-
to do so. lic accountability office could share the
responsibility for drafting reports (see
Recommendation 6.13 recommendation 4.8). And I said that
the siu should hire more staff for affected
Past reports should exclude the infor- persons services, which staff would keep
mation set out in recommendation affected persons up to date on the prog-
6.9. Whenever possible, editorial ress of the case (see recommendations
notes should provide a summary of 4.9 and 4.10).
what the excluded information was
167. But in addition, I think there
about and an explanation for why it
should be a public accountability feature
was necessary to remove it.
for investigative timeliness.
168. Based on past practice and my dis-
cussions with criminal investigators, the
6.500 Investigative timelines
siu should generally be able to close a
162. As noted earlier in section 4.710, case within 120 days, including making
investigative delay was a major complaint any final report to the public.
throughout my consultations.
140 Report of the Independent Police Oversight Review

169. If it is unable to do so, then it ners inquests. In short, they want them to
should have to report to the public on the take place more often for deaths involv-
status of the investigation. The siu also ing police interactions. And they want to
should provide public updates every sixty ensure that affected families are able to
days thereafter until the investigation has meaningfully participate in the inquest
closed. This could include updating the process.
public that the reports public release is 172. For families of people who have
being withheld pending the conclusion died in police interactions, a coroners
of a parallel criminal investigation or trial. inquest provides a level of transparency
170. This accountability feature should and human interaction that is missing
motivate the siu to conclude investiga- from the siu process.
tions in a timely manner, but without 173. At coroners inquests, a coroner
forcing it to do so in an irresponsible way. runs a public hearing to inquire about
the circumstances of a persons death.287
Recommendation 6.14 Witnesses testify. Expert evidence may
be presented.
The siu should aim to conclude inves-
174. Affected family members are thus
tigations, including any final reporting
able to hear directly from witnesses to
to the public, within 120 days. If the
the event, including the officers involved.
siu has not concluded an investiga-
And they are generally able to participate
tion within 120 days, it should report
in them too. Sometimes they are repre-
to the public on the status of the
sented by lawyers who question witnesses
investigation. The siu should further
on their behalf.
report on the status of the investiga-
tion every 60 days thereafter, until 175. At the end of an inquest, a jury
the investigation has concluded. determines the circumstances of the
death, and, when appropriate, makes
recommendations on how to prevent
such deaths.
6.600 Coroners inquests
176. But coroners inquests are not
171. Many of the people I spoke to
required in all police-involved deaths.
about police oversight brought up coro-
Instead the law only requires the coroner
chapter 6 | Transparent and Accountable Criminal Investigations 141

to call an inquest in those cases when a responsibly. This is much like how the
person has died in police custody or while public trusts police to take care of peo-
detained.288 And this terminology can be ple under their custody, a situation which
challenging for the coroner to interpret already calls for a mandatory inquest.
and apply to specific circumstances, 180. That trust is tested when an officers
resulting in a lack of consistency when use of force is a direct contributor to a
determining if an inquest is mandatory. civilians death. In such cases, the public
177. In all other police-civilian inter- desire for a thorough, public examination
actions that result in death, the coroner of the event is strong. So too is the public
decides whether an inquest would be in interest in exploring whether such deaths
the publics interest.289 When making that could be prevented in the future.
decision, the coroner must consider the
following: By allowing police officers to
Whether an inquest would help deter- have access to firearms and to
mine the circumstances of the death; use force when carrying out
Whether it is desirable to fully inform their duties, the public entrusts
the public about the circumstances of police to use these special
the death through an inquest; and powers responsibly.
How likely it is that the jury might
make recommendations that could pre-
vent deaths in similar circumstances. Recommendation 6.15

178. In my opinion, it is always in the


The Coroners Act should be amended
publics interest to hold an inquest for
to require that the coroner hold an
deaths involving a police officers use of
inquest when a police officers use of
force, including the use of restraint or
force, including use of restraint or use
use of a firearm. The legislation should
of a firearm, is a direct contributor to
reflect this.
the death of an individual.
179. By allowing police officers to have
access to firearms and to use force when 181. There is, of course, a heightened
carrying out their duties, the public public interest in knowing more about
entrusts police to use these special powers
142 Report of the Independent Police Oversight Review

all civilian deaths where there is police 185. Finally, when I spoke to affected
involvement. But I do not think that families, I often heard that they did not
police-involved deaths that occur with- feel adequately supported at coroners
out use of force, such as deaths arising inquests. Some family members pointed
out of motor vehicle accidents, call for out that the police have their own law-
mandatory inquests. yers, yet they are generally expected to
182. Rather, those cases should continue pay out of their own pocket if they want
to be evaluated on a case-by-case basis. one. Many of these family members are
simply unable to do so.
183. However, because of the height-
ened public interest in those cases, the 186. That is unfortunate since families
coroner should explain to the public why have a special interest in obtaining a com-
an inquest is not needed. In providing plete understanding of the circumstances
reasons, the coroner should take care to of the death. Without legal assistance or
respect the privacy interests of the people representation, they may not ask the right
involved in the incident. questions, know what arguments to make
when issues arise, or understand how the
184. For greater certainty, this discretion
inquest procedures work.
is not meant to extend to cases in which
an inquest is already mandatory under 187. To me, those families should be
the Coroners Act. provided with some state-funded legal
assistance so that they can meaningfully
participate in the inquest.
Recommendation 6.16

The coroner should retain discretion Recommendation 6.17


to hold an inquest in cases where a
police officer is involved in an individ- The government should provide fund-

uals death, but that police officers ing for legal assistance to represent

use of force was not a direct contrib- the interests of the spouse, parent,

utor to the death. For those cases, child, brother, sister, or personal rep-

the coroner should provide written resentative of the deceased person

reasons to the public if the coroner at the coroners inquest in siu cases.

decides not to hold an inquest.


CHAPTER 7

Public Complaint Investigations

7.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

7.200 Accessibility of the complaints process . . . . . . . . . . . . . . . . . . . . . . 146


7.210 Public awareness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
7.220 Complainant assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

7.300 The complaints process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152


7.310 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
7.311 Excluded officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
7.312 Ineligible complainants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
7.313 Investigations without public complainants . . . . . . . . . . . . 156
7.320 Alternative dispute resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
7.330 Screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
7.340 Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
7.341 Investigative responsibility . . . . . . . . . . . . . . . . . . . . . . . . . 166
7.342 Disciplinary charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
7.343 Duty to cooperate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
7.344 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

143
144 Report of the Independent Police Oversight Review

7.400 Transparency and accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . 177


7.410 Results of investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
7.420 Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

7.500 Systemic review and monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . 181


7.510 Systemic reviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
7.520 Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
chapter 7 | Public Complaint Investigations 145

7.100 Introduction 4. The oversight regime in Ontario


1. The Office of the Independent Police depends in large measure on individual
Review Director, or oiprd, is a civilian members of the public making com-
oversight body intended to provide plaints against police officers. Any agency
impartial, independent, and transparent set up to receive and investigate com-
civilian oversight of public complaints plaints against police will not be effective
about the police. It receives, manages, if potential complainants against police
and oversees those complaints to ensure do not come forward.
they are heard and properly investigated. 5. In a complaint-based model of police
Through this process, the oiprd aims to oversight, the onus is placed on the indi-
foster and maintain public trust in the vidual complainant who has witnessed
police. police misconduct or takes issue with
2. The oiprd works in conjunction with a police policy or service to decide to
the broader police disciplinary system. complain, engage the complaints regime,
This system is intended to remediate and follow through with the process to
behaviour, provide public accountability, completion. This is no easy feat.
and ensure police officers act in compli- 6. Over the course of my consultations,
ance with professional standards. I heard over and over again from many
3. The dual purpose of the oiprd, both people who say they experienced or
in overseeing public complaints and witnessed police officer misconduct but
contributing to the remediation of police never made a formal complaint about the
misconduct, must be considered when matter.
making recommendations to improve the 7. The failure of the current regime to
public complaints process. encourage and draw out meritorious com-
plaints from the community impacts the
I heard over and over again legitimacy of the entire system. The public
from many people who say complaints process must be easily acces-
they experienced or witnessed sible so that misconduct surfaces and is
investigated, challenged, and remediated.
police officer misconduct
8. The public complaints process also
but never made a formal
must be efficient and effective. This
complaint about the matter.
146 Report of the Independent Police Oversight Review

includes having fair and impartial 14. I next make a series of recommen-
investigations. dations aimed at making the public
9. During my consultations, I heard complaints process more efficient and
numerous concerns about the current effective, including with respect to how
process for receiving and investigating complaints are received and investigated.
complaints. 15. Finally, I address ways to improve the
10. At present, the oiprd faces signif- oiprds transparency and accountability
icant resource constraints that hamper and its systemic review and monitoring
its ability to fairly and effectively admin- capabilities.
ister the public complaints system. This
undermines the trust and confidence of 7.200 Accessibility of the
both members of the public and policing complaints process
stakeholders. Going forward, it must be
16. The complaint process must be easily
ameliorated.
accessible to all members of the public.
11. Furthermore, the public complaints In a complaint-based system of police
process must be more transparent and oversight, the effectiveness of the system
accountable. This includes sharing infor- depends largely upon drawing out meri-
mation about the oiprd and investi- torious complaints.
gations with affected parties and the
17. During my consultations, however,
public. And it requires improving the
I repeatedly heard from people who had
agencys systemic review and monitoring
seen or experienced police misconduct,
capabilities.
but never filed a complaint with the
12. In this chapter, I touch on these oiprd. These conversations revealed that
issues and make recommendations to there are a number of inherent barriers to
improve public complaints investigations. making complaints against police officers.
13. I begin by discussing how to make 18. First, a substantial number of people
the public complaints process more acces- with whom I spoke had never heard of
sible so that complainants bring forward the oiprd and did not realize they could
complaints and are better supported make a complaint wholly independently
throughout the process. of the police.
chapter 7 | Public Complaint Investigations 147

19. Second, there was a deep mistrust 22. Finally, many members of the public
of the public complaints process. Sig- told me the lack of strong supports for
nificantly, the fact that most complaints complainants serves as a deterrent to
are referred back to the police service filing a complaint.
for investigation was seen as a major 23. These concerns and barriers were
impediment to a good faith and impartial shared by many members of the public
investigation and were particularly acute for certain
20. Third, some members of the public communities.
told me they would never complain about 24. For example, given historical events
the police because they were genuinely and present realties, some members of
afraid of reprisals. For example, people Indigenous, Black, and other racialized
living or working at shelters or with peo- communities saw voluntarily engaging
ple struggling with mental illness worried the state by making a police complaint
that if they complained, then their next as a very difficult and unattractive option.
call for service to the police would go
25. Moreover, many of the most vulner-
unanswered or be met with abuse, or
able members of our community, such
worse, violence.
as children, the homeless, persons with
21. Fourth, many people did not believe mental health issues, and newcomers, face
making a complaint was worth the effort. significant barriers to making complaints
For some, the likely penalties imposed and have no meaningful supports to assist
on an officer found guilty of misconduct them.
were often seen as trivial. Others noted
26. My recommendations for making the
that, out of the thousands of complaints
public complaints process more accessible
the oiprd receives each year, about half
are informed by what I heard through my
are screened out without investigation
broad consultations. As explained below,
and only a handful result in a formal
I recommend ensuring that people know
disciplinary hearing.290 Importantly,
about their right to complain to an inde-
even legal professionals who had expe-
pendent body and that they are provided
riences with the oiprd were reluctant
with assistance to navigate that process.
to complain, believing that the process is
often rigged and rarely leads to a positive
outcome.
148 Report of the Independent Police Oversight Review

7.210 Public awareness 32. First, consideration should be given


27. Throughout my consultations, I met to renaming the oiprd to better reflect
with many people who did not know the agencys functions.
about the oiprds existence or the process 33. The Office of the Independent
for lodging a complaint. Police Review Director is an opaque
28. Some people, for example, did not name that is not easily remembered.
realize that they could make a complaint Despite the oiprds efforts to advertise
online and did not have to do so in per- its existence and functions, it appears that
son at the police station. Others found the public remains largely unaware of the
the name of the oiprd confusing and agency.
did not know that the agency operates 34. The oiprds name is long, confusing,
independently of the police. Still more and unduly complex. It is not conducive
concerning, a number of people with to a public understanding of what the
legitimate complaints had not even heard oiprd does. This may impede public
of the oiprd. accessibility to the complaints system as
29. Some of the barriers that impede members of the public are unsure of the
access to the public complaints system agencys functions.
have to do with larger social issues that 35. I think the oiprd should be renamed
are beyond my mandate. something simpler, easier to remember,
30. Having said that, reforms to the and more consistent with its functions,
system must be aimed at improving the such as the Police Complaints Office.
systems accessibility so that meritorious
complaints are encouraged and brought Recommendation 7.1
forward into the light. Encouraging
complaints benefits the entire policing The oiprd should be renamed. The
structure in Ontario by enhancing its name should be easily understood
accountability and credibility. and better reflect the oiprds core
functions.
31. In this vein, I have two recommenda-
tions aimed at improving awareness about
36. Second, the fact that so many
the oiprd and the complaints process.
members of the public remain unaware
chapter 7 | Public Complaint Investigations 149

of the oiprd and what it does must be 39. However, most members of the pub-
remedied. lic still do not know about the oiprd.
And even people that know of the agency
Most members of the public are often operating with misinformation,
still do not know about the such as a mistaken belief that complaints
oiprd. And even people that have to be made at a police station.

know of the agency are often 40. This serves as a deterrent to filing a
complaint. For example, some members
operating with misinforma-
of Black and Indigenous communities
tion, such as a mistaken belief
told me that they experienced racism
that complaints have to be when dealing with the police. As a result,
made at a police station. they do not believe a complaint will be
taken seriously or actively processed. And
37. Currently, the oiprd is required they do not make a complaint, even when
by statute to provide publicly accessible a complaint could, and should, be made.
information about the public complaints
41. Going forward, the oiprd should
system.291 Outreach and education support
engage in a sweeping public education
the public complaints process by building
campaign across the province. This pub-
awareness and trust in the system.
lic education campaign may include
38. Consistent with its obligation, the advertisement online, in newspapers, on
oiprd has made efforts to educate the radio, through social media, and on public
public about its existence and functions. transit.
I was informed that the oiprd has
42. The campaign also should include
hired three outreach advisors who give
targeted education and training sessions
presentations and workshops to com-
for workers and volunteers in community
munity organizations and police groups.
organizations who regularly meet with
It also maintains a website and Twitter
and serve vulnerable people. Social work-
account, has resource committees aimed
ers, community organizers, clinic lawyers,
at outreach and education activities, and
and community volunteers are often the
publishes brochures in eight languages
first to hear about police abuse, discour-
available in police stations, courthouses,
tesy, and violence. The oiprd should
and many Service Ontario locations.
150 Report of the Independent Police Oversight Review

build linkages with these individuals and Recommendation 7.2


community organizations so that they
are aware of the oiprd and can share The oiprd should expand its public

this knowledge with and assist potential outreach program. The program

complainants in the complaints process. should target both the general pub-
lic and community organizations that

Going forward, the oiprd serve vulnerable people.

should engage in a sweeping


public education campaign
7.220 Complainant assistance
across the province.
46. Navigating the complaints system is
43. Also, the oiprd should reach out to often a complex endeavour.
youth in secondary schools and post-sec- 47. Many people, particularly those from
ondary institutions. The oiprd should vulnerable communities, face significant
develop educational resources for teachers hurdles when pursuing a complaint.
and youth, with organizations such as the 48. Although the oiprd is required to
Ontario Justice Education Network. arrange for the provision of assistance
44. I recognize that this approach will to members of the public in making a
require resources, time, and effort. It also complaint, the methods of providing
may result in a bit of a funding dilemma. assistance are not identified.292
If an oversight agency barely able to afford 49. During my consultations, I heard
to advertise its existence is given slightly from a number of potential complain-
better funding to run an advertising cam- ants about the obstacles they faced when
paign, how will it provide the services launching a complaint. In addition to
resulting from additional demand? the barriers mentioned in section 7.200,
45. That said, I believe that it is essential many potential complainants also have
to adequately fund the oiprd to engage to overcome practical obstacles.
in this outreach and meet this increased 50. For example, some complainants
demand. The accountability, transparency, may be illiterate, unsophisticated with
and effectiveness of the oiprd depend regard to filling out forms, or unable to
on the public being aware of its existence. speak English or French. In addition, a
chapter 7 | Public Complaint Investigations 151

number of Ontarians live in rural areas the oiprd, educating complainants about
or do not have ready access to computers the complaints process, and assisting
and internet. them to fill out complaints.
51. These barriers may impede a person 56. After a complaint is received, the
both from filing a complaint and seeing it oiprd should review it to ensure that it
through to its conclusion. The complaint is complete. If it is not, the oiprd should
process, however, must be easily accessible reach out to the complainant to obtain
to members of the public, no matter what any missing information. Intake staff
barriers they face or where they live. should be prepared to offer complain-
52. Those considering making a com- ants additional assistance to complete
plaint should be assisted and advised unfinished complaints and to point them
during the initial stages of a complaint. to community resources and support. A
complaint should not be screened out or
53. Intake staff over the phone, on the
ignored simply because it is incomplete.
internet, and in person should be carefully
trained to provide information to poten- 57. Once a complaint is complete,
tial complainants about the complaints assistance and support for complainants
process and to assist with the filing of should continue. oiprd staff should keep
the complaint. complainants apprised of developments
in their matter and remain available to
54. Intake staff also should have a list of
answer questions about the complaints
local social agencies around the province
process. Community groups and organi-
that are prepared to provide additional
zations should remain engaged to provide
assistance and support to complainants.
further support.
If, as I recommend above, the oiprd
engages in targeted outreach to commu- 58. In rural and remote areas of the prov-
nity groups and organizations, it should ince, the support of community groups
be able to leverage these relationships to and organizations may be especially crit-
assist complainants. ical. The Police Services Act provides that
the oiprd may set up regional offices.293
55. These groups and organizations ide-
But, to date, the oiprd has not had the
ally will be able to offer support to com-
resources to establish a regional presence
plainants, provided they are adequately
outside of the Toronto area, either by
resourced. They will act as a window to
152 Report of the Independent Police Oversight Review

launching independent offices or working Recommendation 7.3


out of existing government offices such
as Service Ontario locations. The complaint process should be
easily accessible to all members of
59. During my consultations, particularly
the public wherever they reside in
in northern Ontario, many people did
Ontario.
not know about the oiprd or felt that
it was inaccessible to them. To remedy
this problem, the oiprd should seriously
Recommendation 7.4
consider establishing one or more satellite
offices, especially in a community such as The oiprd, together with commu-
Thunder Bay. nity groups and organizations,
60. Even in the absence of regional should provide assistance to public
offices, however, the oiprd can still complainants to help navigate the
engage with local communities across complaints process. This assistance
the province. It should develop connec- should be offered from the initial
tions with local community groups and intake through to final disposition
organizations. And it should equip them of the complaint.
with the tools to assist complainants nav-
igating the complaints process.
61. Making the complaints process nav- Recommendation 7.5
igable is key to ensuring that the process
Resources should be designated and
is accessible and effective. The oiprd, in
made available to community groups
concert with community groups and
and organizations to assist complain-
organizations, should provide assistance
ants through the complaints process.
to complainants to facilitate their navi-
gation of the complaints system.

7.300 The complaints process


62. An efficient and effective public com-
plaints process is a prerequisite to public
and police confidence in civilian police
chapter 7 | Public Complaint Investigations 153

oversight. It begins with clearly defining police in Ontario. This recommendation,


the jurisdiction of the body charged with however, should not be seen as a critique
overseeing complaints. And it requires that of the oiprd as it currently operates. The
the body be adequately resourced to oversee oiprd was never intended to be the sole
a complaint through to its final disposition. investigative agency for public complaints
against the police.
An efficient and effective
public complaints process is 7.310 Jurisdiction
a prerequisite to public and
66. In order to be efficient and effective,
police confidence in civilian the oiprds jurisdiction must be clearly
police oversight. defined.
67. The Police Services Act currently pro-
63. In some cases, a public complaint
vides that, subject to certain exceptions,
may be expeditiously resolved without
any member of the public may complain
the need for an investigation or formal
to the oiprd about the conduct of a
hearing. When there is an investigation,
police officer or the policies or services
however, an efficient and effective pro-
of a police force.294
cess requires that investigations be fair,
68. The oiprds jurisdictional mandate
impartial, and timely.
is fairly straightforward, but several prob-
64. In this section, I make a series of
lems were identified during my consul-
recommendations aimed at making the
tations that should be remedied.
public complaint process more efficient
69. As I explain in the next sections, I
and effective. This includes recommenda-
recommend the following:
tions to redefine the oiprds jurisdiction,
to promote early resolution in appropriate Giving the oiprd jurisdiction over
cases, and to tailor the oiprds intake certain excluded police personnel;
procedures. Clarifying who can and cannot make
65. I conclude this section by recom- a complaint; and
mending that, over time, the oiprd Allowing the oiprd in limited cir-
assume sole investigative responsibility cumstances to initiate an investigation
for all public conduct complaints against without a public complainant.
154 Report of the Independent Police Oversight Review

7.311 Excluded officers Similarly, the oiprd should assume the


70. Any expansion of the oiprds juris- ocpcs investigative powers over auxiliary
diction must be handled with caution members of a police force. This will leave
given the resource constraints the agency the oiprd to focus on investigations as
faces. its area of expertise.

71. As noted above, the oiprd already 75. Moreover, to the extent special con-
has a broad statutory mandate to receive stables employed by a police force and
and manage complaints about a police auxiliary members of a police force are
forces policies or services or about a increasingly used to provide traditional
police officers conduct.295 police services, allowing the oiprd to
investigate complaints against them is
72. The term police officer is defined
consistent with the oiprds mandate
in the Police Services Act, and specifically
to investigate police misconduct. These
excludes special constables, auxiliary
officers often have significant interactions
members of a police force, and First
with the public and perform duties that
Nations Constables.296 As a result, the
make them, in the eyes of the public,
oiprd is not empowered to receive com-
indistinguishable from regular police
plaints about these officers, even though
officers.
they perform policing functions.
73. Currently, the ocpc has the author-
Recommendation 7.6
ity to investigate special constables and
auxiliary members of a police force.297 The oiprd should receive and inves-
This is confusing and unduly complicates tigate public complaints concerning
the oiprds and the ocpcs respective special constables employed by a
mandates. police force and auxiliary members
74. As I explain in section 9.310, the of a police force.
ocpc is primarily an adjudicative body
and should focus on its adjudicative 76. Jurisdiction over First Nations
mandate. Its investigative powers over Constables will be discussed in section
special constables employed by a police 10.500.
force should be transferred to the oiprd.
chapter 7 | Public Complaint Investigations 155

7.312 Ineligible complainants Recommendation 7.8

77. Subsection 58(2) of the Police Ser-


Police associations should be pro-
vices Act lists persons who cannot make
hibited from making complaints
a complaint to the oiprd.
regarding a police force or member of
78. To be consistent with the intent of a police force within the jurisdiction
that provision, the legislation also should of the police association.
prohibit a person from acting simply as a
proxy for a person otherwise prohibited 81. During my consultations, several
from making a complaint. members of the policing community
questioned the effectiveness of the inter-
Recommendation 7.7 nal mechanisms available to an officer
who raises concerns about the actions of
A person should be prohibited from their co-workers. A member of a police
making a complaint if it appears that force who complains to their chief about
the person is acting as a proxy for their fellow members misconduct may
a person otherwise prohibited from be afraid of potential reprisals.
making a complaint. 82. To address this situation, the Min-
istry of Community Safety and Correc-
79. Notably, the Police Services Act bars tional Services should review the process
members of a police force from filing a for making internal complaints to ensure
complaint if it concerns the members there are effective whistleblower protec-
police force or another member of that tions so that complaints can be made
force.298 This is because members of a within the chain of command without
police force have alternative mechanisms fear of reprisal.
to resolve workplace-related disputes.
80. This bar, however, does not currently
Recommendation 7.9
extend to police associations. It should.
Police associations should be prohibited The Ministry of Community Safety
from making a complaint regarding a and Correctional Services should
police force or member of a police force review the process for members of
within the associations jurisdiction. a police service to make internal com-
156 Report of the Independent Police Oversight Review

plaints to ensure there are effective rectional Services, a municipal council, or


whistleblower protections. a police services board.301 As I explain in
section 9.323, this rarely invoked power
is inconsistent with the ocpcs adjudica-
7.313 Investigations without public tive mandate. Rather, the crucial work of
complainants investigating police misconduct on behalf
of the public should be housed at the
83. There are some limited circumstances
oiprd, an expert investigative body.
when it is desirable for the oiprd to
conduct an investigation even without 86. In section 9.240, I address the issue
a member of the public making a com- of cross-referrals between the oversight
plaint. In such circumstances, the oiprd agencies and recommend that the siu
should have the jurisdiction to initiate an director have the authority to refer con-
investigation in the absence of a formal duct concerns to the oiprd and policy
complaint. and service concerns to the chief of police.

84. Several other jurisdictions allow their 87. There are, however, other situations
public complaints body to launch an where it may be beneficial for the oiprd
investigation without a formal complaint. to conduct an investigation in the absence
For example, in British Columbia, the of a formal public complaint.
Office of the Police Complaint Commis- 88. First, there may be cases where
sioner can order an investigation if infor- a chief of police considers it advisable
mation comes to its attention concerning for the oiprd to investigate an internal
conduct that, if substantiated, would complaint rather than having an officer
constitute misconduct.299 Similarly, the from the forces own professional stan-
Civilian Review and Complaints Com- dards unit conduct the investigation. The
mission for the rcmp can initiate its own legislation already allows a chief of police,
complaint if there are reasonable grounds with board approval, to request that
to investigate a members conduct.300 another forces chief conduct an investi-
85. In Ontario, the ocpc can investigate gation.302 Chiefs of police also should be
the conduct of a police officer on its own able to request that the oiprd intervene
motion or at the request of the oiprd, the to investigate.
Minister of Community Safety and Cor-
chapter 7 | Public Complaint Investigations 157

89. Second, a police services board may to exercise its discretion to conduct an
wish to refer a matter directly to the investigation.
oiprd for investigation. This may be
especially true if, for instance, the board
Recommendation 7.10
suspects that the chief or deputy chief
has engaged in misconduct. The oiprd A chief of police should be able to
should have the power to conduct an request that the oiprd investigate a
investigation into such cases without a complaint, without the approval of
formal complaint. the police services board.
90. Third, in some cases the oiprd may
investigate a complaint and uncover issues
that go beyond the original complaint. In Recommendation 7.11
other cases, the complainant may decide
The oiprd should have the discretion
to withdraw a complaint even where it
to conduct an investigation without
appears that the officer committed seri-
a public complaint in any of the fol-
ous misconduct. In such circumstances,
lowing circumstances:
the oiprd should be authorized to con-
duct or continue an investigation in the (a) If the siu, a chief of police, or a
absence of a complaint. police services board has referred a

91. Finally, there may be matters where matter to the oiprd for investigation;

there is a public interest requiring an (b) If a public complaint has been


investigation into an officers conduct. made, and the oiprd investigation
Information may come to the oiprds reveals potential misconduct or pol-
attention from court proceedings, news icy or service issues other than those
reports and, in some cases, community raised by the complaint itself;
tips, that raises serious concerns war-
(c) If the complainant has withdrawn
ranting investigation. If there is a public
a complaint but there is a public inter-
interest in launching an investigation,
est in continuing the investigation; or
the oiprd should be authorized to
initiate it. For instance, if misconduct (d) If there is a public interest in ini-
is motivated by systemic racism or by tiating an investigation.
discrimination, the oiprd may wish
158 Report of the Independent Police Oversight Review

7.320 Alternative dispute resolution 96. Mediation is available as part of


92. Early resolution of complaints either customer service resolution or
through alternative dispute resolu- informal resolution. If customer service
tion should be encouraged whenever resolution is unsuccessful but the par-
appropriate. ties are still interested in resolving the
complaint before it is formally screened,
93. Currently, the oiprd supports public
they can request mediation. Similarly, if
complaint alternative dispute resolution
informal resolution without mediation
through its customer service resolution,
would likely fail, informal resolution with
informal resolution, and mediation
mediation may be proposed. It also may
programs.
occur if there are concerns about power
94. The oiprd implemented its cus- imbalances or the complainant is reluc-
tomer service resolution program in 2013. tant to accept a process being led by the
It allows the parties to voluntarily resolve police service.
less serious complaints before they are
97. The oiprds mediation program
even formally screened under the Police
began in 2013. It is a voluntary process
Services Act. In customer service reso-
that provides an opportunity for com-
lution, an experienced facilitator helps
plainants and respondent officers to meet
the parties discuss their concerns and
with the assistance of a neutral, third-
exchange their perspectives.
party mediator to discuss their concerns
95. Informal resolution occurs after and reach a mutually agreeable resolution.
a complaint is screened in. It may be
98. From April 1, 2014 to March 31,
attempted any time during the investi-
2015, 143 complaints were successfully
gation or at the investigations conclusion
resolved through customer service reso-
if the complaint is substantiated as less
lution and 233 complaints were resolved
serious. Most commonly, a member of
through informal resolution. There were
a police services professional standards
six requests for mediation between
unit or a senior officer designated by the
November 6, 2013 (when the program
police chief is the facilitator. If the oiprd
was launched) and March 31, 2015. As of
investigates the complaint, however, the
April 1, 2015, mediation was successful in
oiprd investigator facilitates the infor-
three of those cases and was still ongoing
mal resolution process.
in one other.303
chapter 7 | Public Complaint Investigations 159

Alternative dispute resolu- careful attention to avoiding replication


tion has proven to be a very of power imbalances.

effective way to resolve some 102. Alternative dispute resolution


provides an opportunity to satisfy and
complaints. And it often leads
educate both officers and complainants.
to a high degree of satisfaction
Many members of the public I met who
for all of those involved. As had negative interactions with the police
one stakeholder commented, explained that they were more interested
alternative dispute resolution in hearing an explanation and apology
is where the healing begins. from the officers than punishing them. By
opening up a dialogue, alternative dispute
99. In his 2005 report, Chief Justice resolution can help resolve these sorts of
LeSage strongly supported alternative cases.
dispute resolution mechanisms. He rec- 103. Moreover, several policing stake-
ommended that the oiprd review com- holders indicated to me that officers who
plaints to determine whether they may had been through an alternative dispute
be suitably resolved through informal resolution process were much less likely to
mediative type resolution, bearing in be the subject of further complaints. This is
mind the gravity of the allegation, the a positive result that should be encouraged
effect of the alleged conduct on the com- through support for alternative dispute
plainant, and the public interest.304 resolution in the complaints process.
100. Alternative dispute resolution
has proven to be a very effective way to Recommendation 7.12
resolve some complaints. And it often
leads to a high degree of satisfaction for Early resolution of complaints should
all of those involved. As one stakeholder be encouraged through the develop-
commented, alternative dispute resolu- ment and operation of alternative
tion is where the healing begins. dispute resolution programs.

101. To be successful, alternative dispute


104. The availability of alternative dis-
resolution requires neutral and impartial
pute resolution after a disciplinary charge
mediators or facilitators. And it requires
has been laid is discussed in section 8.310.
160 Report of the Independent Police Oversight Review

7.330 Screening aimed at addressing these concerns.


105. After the oiprd receives a com- 108. First, the public interest ground
plaint, it reviews the complaint to deter- for screening out a complaint should be
mine whether it should be screened in for eliminated or better defined.
investigation or screened out. Complaints 109. Currently, approximately half of all
are presumptively screened in.305 But the complaints are screened out, the most
Police Services Act enumerates a number common reason being that it is not in
of grounds for screening them out.306 the public interest to deal with the par-
106. According to oiprd statistics, ticular complaint.309
approximately half of all complaints are 110. As a result, many Ontarians who inter-
screened out. Some of the most common act with the oiprd receive a letter inform-
reasons for screening out complaints are ing them that their complaint will not be
that they are not in the public interest, investigated because, in the oiprds view,
that they are better dealt with under dealing with it is not in the public interest.
another act or law, or that they are friv- In these cases, complainants may reasonably
olous.307 When a complaint is screened believe that the interests of the police have
out, the oiprd must provide reasons.308 outweighed their interest in having a com-
plaint investigated. This can cause them to
A number of stakeholders lose faith in the complaints process.
expressed dissatisfaction with 111. While the oiprd has established
the current screening process. rules to help define the public interest
considerations that apply when determin-
107. Throughout my consultations, a ing whether or not to deal with a com-
number of stakeholders expressed dis- plaint,310 the term is especially vague.311
satisfaction with the current screening This leaves complainants questioning the
process. Common concerns related to fairness and impartiality of the oiprd
the vagueness of some of the grounds and the transparency of the complaints
for screening out complaints and certain process more broadly.
legislative anomalies and omissions in the
112. Notably, a number of other prov-
screening process. My recommendations
inces do not have such a broad, undefined
to tailor the intake screening process are
ground for screening out a complaint.312
chapter 7 | Public Complaint Investigations 161

113. Consideration should be given to 116. Sometimes a complainant abandons


removing the public interest ground for a complaint after it is filed. Sometimes a
screening out a complaint or, at the very complainant makes the same complaint
least, incorporating some of the factors for the same incident twice or alleges
in the oiprds rules into the legislation. conduct that, even if proven, would not
114. Public confidence in the oiprd may constitute misconduct.
be undermined if reasons for screening 117. And sometimes a complaint files a
out a complaint are not transparent and complaint that is incomplete. From time
persuasive. to time, the oiprd may be unable to get
the necessary information to appropri-
ately evaluate the complaint, even after
Recommendation 7.13
several attempts to follow-up with the
The legislative grounds allowing complainant.
the oiprd to screen out complaints 118. In these sorts of cases, the oiprd
should be updated to reflect the fact should have the discretion to screen out
that complaints are presumptively a complaint.
screened in, and that sufficient rea-
119. The National Defence Act, for exam-
sons need to be provided where they
ple, allows the Provost Marshal to not
are screened out.
initiate or to terminate an investigation
of a conduct complaint against a military
police officer if, having regard to all the
Recommendation 7.14
circumstances, investigation or further
investigation is not necessary or reason-
The public interest ground for
ably practicable.313
screening out complaints should be
removed or, if retained, legislatively 120. Similarly, the Police Complaint
defined. Commissioner in British Columbia can
discontinue an investigation if they deter-
115. Second, the oiprd should have the mine that further investigation is neither
discretion to screen out complaints if an necessary nor reasonably practicable.314
investigation is not necessary or reason- 121. A similar provision should be
ably practicable. adopted in Ontario. Indeed, if appro-
162 Report of the Independent Police Oversight Review

priate cases are screened out at an early decide not to deal with a conduct com-
stage, the oiprd can focus its funding plaint if the complainant is not one of
and resources on those remaining cases the following:
that are most worthy of investigation. A person at whom the conduct was
directed;
Recommendation 7.15 A person who saw or heard the con-
duct or its effects by being physically
The oiprd should be given discretion
present at the time;
to screen out complaints, or termi-
nate the investigation of complaints, A person who was in a personal rela-
when investigation or further investi- tionship with the person at whom the
gation is not necessary or reasonably conduct was directed and suffered loss,
practicable. damage, distress, danger, or inconve-
nience; or
122. Third, the legislation should allow A person who has knowledge of the
for third party complaints. conduct or controls or possesses com-
123. Currently, the screening process has pelling evidence that the conduct con-
the potential to unduly limit third party stitutes misconduct.316
complaints. This is particularly true with
respect to policy and service complaints. There may be times when
third parties have valid
124. More specifically, although the
Police Services Act allows a complaint to conduct, policy, or service com-
be made by any member of the public, it plaints. For example, a legal
also provides that the oiprd may screen clinic or community group
out a policy or service complaint if the may hear from multiple clients
policy or service did not have a direct
about a particularly troubling
effect on the complainant.315
police practice.
125. The oiprds power to screen out a
third party complaint about the conduct 126. There may be times when third par-
of a police officer is narrower. The Police ties have valid conduct, policy, or service
Services Act provides that the oiprd may complaints. For example, a legal clinic or
chapter 7 | Public Complaint Investigations 163

community group may hear from multi- 130. Fourth, the process for screening
ple clients about a particularly troubling complaints against municipal chiefs, dep-
police practice. It should be encouraged uty chiefs, the opp Commissioner, and
to file a complaint about that practice, opp Deputy Commissioners should be
even though it is not directly affected by simplified.
the impugned policy or service. 131. Currently, complaints about the
127. These complaints promote effective opp Commissioner or an opp Deputy
and accountable policing. They should Commissioner must be referred to the
not be screened out simply because the Minister of Community Safety and
complainant is not directly affected. Correctional Services. The Minister deals
128. Misconduct is misconduct, no mat- with the complaint as they see fit, with no
ter who reports it. And a policy or service further involvement from the oiprd and
concern should not be minimized simply no obligation to report back to the oiprd
because the person reporting it was not as to how the complaint was addressed.318
directly affected by it. 132. If a complaint concerns a municipal
129. In his 2005 report, Chief Justice chief or deputy chief, the oiprd cannot
LeSage supported allowing third party simply undertake an investigation as
complaints.317 I agree with his recommen- would be the case with other officers.
dation. Third party individuals or orga- Instead, the oiprd must first forward
nizations may bring valuable insight and the complaint to the relevant police ser-
resources into a consideration of police vices board for its review and determi-
conduct and practices. nation as to whether the oiprd should
investigate.319
133. The rationale for having boards
Recommendation 7.16
effectively screen a complaint against a
Third party complainants should be municipal chief or deputy chief a second
allowed to file complaints. The oiprds time is unclear and leads to the possibility
discretionary grounds for not dealing of opposing conclusions.
with a third party complaint should 134. For example, if the oiprd thinks a
be narrow. complaint should be investigated but the
board disagrees, the board can essentially
164 Report of the Independent Police Oversight Review

overrule the oiprd. Given the close rela- plaints process and weakens the oiprds
tionship between many boards and chiefs independence.
and deputy chiefs, public confidence may 138. The oiprds role in screening com-
be undermined when a board, rather than plaints should be the same for all police
an independent oversight agency, decides officers, including municipal police chiefs
whether a complaint warrants further and deputy chiefs and the opp Commis-
investigation. sioner and opp Deputy Commissioners.
135. Moreover, some police services 139. Furthermore, as explained in sec-
boards do not meet regularly. This can tion 7.341, once screened in, complaints
delay the decision-making process. against these officers should be investi-
136. In addition, during my consulta- gated in the same manner as complaints
tions, a number of boards indicated that against all other officers.
they would prefer that the oiprd have
sole responsibility for this function.
Recommendation 7.17

The different treatment The oiprd should have sole responsi-


afforded to the highest ranking bility for screening complaints against
members of police services may a municipal chief of police or a munic-
ipal deputy chief of police, and should
undermine public trust in the
notify the police services board of its
fairness of the system. It also
decision.
adds unnecessary complexity
to the complaints process
and weakens the oiprds Recommendation 7.18
independence.
The oiprd should have sole responsi-
bility for screening complaints made
137. The different treatment afforded to
against the opp Commissioner and
the highest ranking members of police
opp Deputy Commissioners, and
services may undermine public trust in
should notify the Minister of Commu-
the fairness of the system. It also adds
nity Safety and Correctional Services
unnecessary complexity to the com-
of its decision.
chapter 7 | Public Complaint Investigations 165

140. Finally, the intake and screening Recommendation 7.19


process must properly track complaints
so the oiprd can easily identify officers The oiprd should track complaints to

who are the subject of recurrent com- identify officers who are the subject

plaints and people who repeatedly file of multiple complaints and complain-

complaints with no merit. ants who file multiple complaints


without merit.
141. During my consultations, a num-
ber of stakeholders expressed concern
about so-called frequent flyers. These
7.340 Investigations
are officers who are the subject of a much
higher level of complaints than other 143. There is broad consensus among
officers in the same police department members of the public and policing
performing similar functions. A common stakeholders that an effective public
concern was that such officers may slip complaints system depends in part on
under the radar if complaints against the integrity of the investigative process.
them are frequently screened out or Public and policing confidence requires
resolved informally. thorough and competent investigations,
conducted with fairness and impartiality.
142. I was informed by the oiprd that
its current intake software tracks both
There is broad consensus
the names of complainants and police
officers. This software should allow the among members of the public
oiprd to flag officers who are the subject and policing stakeholders that
of repeated complaints to help identify an effective public complaints
potential systemic issues or patterns of system depends in part on the
misbehaviour. Similarly, it should indicate
integrity of the investigative
to the oiprd whether a particular com-
process.
plainant has made numerous complaints
that had no merit.
144. As I explain below, I recommend
that, over time, the oiprd investigate all
public conduct complaints against police
in Ontario. This will require ensuring that
166 Report of the Independent Police Oversight Review

the oiprd has strong evidence collection 7.341 Investigative responsibility


tools and capacity to conduct investiga- 147. Currently, when a conduct com-
tions in a timely manner. Following its plaint involves a police officer other than
investigation, the oiprd should determine a municipal chief, the opp Commissioner,
whether or not to lay disciplinary charges. or their deputies, the oiprd may retain
145. Expanding the oiprds investigative the complaint and conduct its own inves-
responsibilities will undoubtedly require tigation, or refer the matter to the officers
time and a significant infusion of resources. police service or a different police service
That said, I believe that independent inves- for investigation.320
tigation will help foster trust and support 148. In practice, the oiprd refers the
in the public complaints process. vast majority of public complaints to the
146. Moreover, there are numerous officers police service for investigation.
practical benefits to having a high-qual- By way of example, from April 1, 2014
ity public complaints system, including to March 31, 2015, the oiprd referred
high-quality investigations. If problem- 950 conduct complaints to the officers
atic officers and behaviours are identified police service, 7 to another police service,
early, they can be addressed before they and retained 161.321
become a bigger and more costly issue. 149. The fact that so few complaints
This will help to avoid more police com- are independently investigated by the
plaints, civil litigation, and human rights oiprd erodes public confidence in the
complaints. complaints process. During my consul-
tations, many members of the public
If problematic officers and were surprised to learn that a complaint
behaviours are identified made to an independent body about a
early, they can be addressed police officers conduct could be referred
before they become a bigger back to that same officers police force for
investigation.
and more costly issue. This will
help to avoid more police com- 150. A commonly expressed view at my
consultations was that the police should
plaints, civil litigation, and
not be investigating police. Nonetheless
human rights complaints.
that is the current state of affairs. The
chapter 7 | Public Complaint Investigations 167

oiprd is largely a screening body and of actual bias, they noted the potential for
not an investigative one. a perception of bias when police officers
151. As I indicated in my introductory investigate other police officers in their
comments to section 7.300, this is not a same force.
failure of the function of the oiprd, but 155. I recognize that having the oiprd
a failure of its form. The oiprd was not conduct all public conduct complaint
created to be the sole investigative agency investigations will require a commitment
for public complaints against police, but of time and resources. Nonetheless, I
rather to review complaints and oversee believe it is an achievable goal toward
the complaints process. which the oiprd can work over time.
152. The oiprd, as currently consti- 156. Beginning immediately, the oiprd
tuted, is not adequately resourced to should be infused with sufficient resources
investigate all public conduct com- to hire and train competent investigators.
plaints. Fiscal and geographical con- The selection of these investigators and
straints compel the oiprd to refer many the skills they should develop are dis-
complaints back to police services even cussed in section 4.730. Like the siu,
when the circumstances of a particu- the oiprd may wish to explore hiring
lar complaint may justify independent some part-time and on-call investigators,
investigation. particularly to service rural or remote
153. In my view, the preferred approach locations. The increased workload may
is for all public conduct complaints to be necessitate the creation of a new senior-
received, reviewed, and investigated by level position, such as a deputy director
the oiprd. Independent and impartial of investigations.
investigation of complaints will help fos- 157. Within five years, the oiprd should
ter public trust in not only the complaints have built enough capacity to independently
system, but policing more generally. investigate all public conduct complaints.
154. Many of the people with whom I In the interim, the oiprd should retain its
spoke expressed a strong desire to have discretion to refer some cases back to police
an independent, civilian body investigat- services for investigation.
ing police misconduct rather than police 158. For referred cases, the service
services themselves. Irrespective of issues should investigate on the oiprds behalf
168 Report of the Independent Police Oversight Review

and submit the investigative report to the oiprd should be able to refer com-
oiprd. The oiprd should review the plaints to police forces for investiga-
report and make the charging decision. If tion. During this interim period, the
the oiprd believes that the investigative oiprd should be solely responsible for
report is incomplete or additional inves- laying disciplinary charges and should
tigation is otherwise needed, it should have the authority to order further
direct the service to further investigate or investigation or to take over an inves-
undertake its own investigation. Follow- tigation conducted by a police force.
ing that further investigation, the oiprd
should decide whether or not to lay any 159. Furthermore, as I alluded to in
charges. section 7.330, the oiprd s responsi-
bility to investigate all public conduct
Recommendation 7.20 complaints should extend to all police
officers, including a municipal chief,
Within five years, the oiprd should the opp Commissioner, and their
be the sole body to investigate public deputies.
conduct complaints. 160. Currently, the oiprd already con-
ducts all investigations involving munic-
ipal police chiefs and deputies.322 This
Recommendation 7.21 practice should continue.

The oiprd should receive funding 161. Complaints involving the opp
and resources commensurate with Commissioner and opp Deputy Com-
its new responsibility to investigate missioners are referred to the Minister
all public conduct complaints. of Community Safety and Correctional
Services.323 They should instead be inves-
tigated by the oiprd and treated like any
other conduct complaint involving any
Recommendation 7.22
other officer.
Over the next five years, until the
oiprd is able to conduct all public
conduct complaint investigations, the
chapter 7 | Public Complaint Investigations 169

Recommendation 7.23 but also policy or service issues. In such


cases, it may make little sense to have
The oiprd should be solely respon- the oiprd investigate the conduct of the
sible for investigating complaints officer while the police force conducts
against municipal chiefs of police, its own concurrent examination of the
the opp Commissioner, and their policy or service. Similarly, a policy or ser-
deputies. vice complaint may raise sensitive issues
about a police force better considered by
162. For the sake of clarity, I should note an independent, external body.
that the oiprds expanded mandate to
166. Provided the oiprd is properly
investigate all public conduct complaints
resourced, it should have the discretion
should not extend to all service and policy
to retain policy or service complaints in
complaints.
appropriate circumstances. As part of
163. Under the current legislation, com- its review of these complaints, it should
plaints involving the services and poli- work with the local professional standards
cies of a municipal police force or the unit to the extent doing so is feasible and
opp cannot be retained by the oiprd. advisable. Its report should be shared with
Rather, they must be referred to the the chief and police services board for
municipal chief of police, opp Commis- further action.
sioner, or opp detachment commander,
167. I anticipate that the oiprd will
as appropriate.324
continue to refer the vast majority of
164. These policy and service complaints policy and service complaints back to
make up a very small number of the total police forces. That said, I believe the abso-
number of complaints screened in each lute prohibition on the oiprd retaining
year.325 The oiprd does not currently have service or policy complaints should be
the capacity to deal with policy or service removed. This more measured and flexible
matters. That said, in some rare cases, the approach will help the oiprd to advance
oiprd may be well positioned to consider the goals of effective policing and policing
a policy or service complaint, if properly oversight.
resourced.
165. For example, sometimes a public
complaint raises not only conduct issues,
170 Report of the Independent Police Oversight Review

Recommendation 7.24 investigation referred to a police chief or


direct the chief to deal with the complaint
The oiprd should have the discretion as it specifies.328
to retain service or policy complaints
172. For oiprd-retained investigations,
in appropriate circumstances.
the oiprd determines whether to sub-
stantiate the complaint. If the complaint
is substantiated, the oiprd refers the
7.342 Disciplinary charges
matter to the chief indicating whether
168. The current scheme for laying dis- or not it believes that the misconduct or
ciplinary charges is unduly complex and unsatisfactory work performance is of
should be simplified. a serious nature. If the chief of police
169. Currently, when the oiprd refers a believes that the misconduct or unsat-
conduct complaint to the police chief for isfactory work performance is not of a
investigation, the chief may or may not serious nature, the matter may be resolved
substantiate it. If the chief substantiates informally. For serious misconduct or
the complaint but believes the misconduct unsatisfactory work performance, the
or unsatisfactory work performance is not chief will hold a hearing.329
of a serious nature, they may settle the 173. In the new complaints system,
matter informally without holding a hear- I have recommended that the oiprd
ing. If the misconduct or unsatisfactory conduct all investigations from conduct
work performance is serious, the matter complaints. Building on this, the oiprd
proceeds to a disciplinary hearing.326 also should have sole authority to lay
170. A complainant may request that the charges. This will ensure that the decision
oiprd review the chief s decision to not to charge or not to charge will be truly
substantiate a complaint or to determine independent, thereby enhancing public
that the misconduct or unsatisfactory confidence in the system.
work performance is not of a serious 174. Following its investigation, if the
nature. The oiprd will review the chief s oiprd has reasonable grounds to believe
decision and may reverse it.327 that the officers conduct constitutes
171. In addition, on its own initiative, misconduct or unsatisfactory work per-
the oiprd may at any time take over an formance, the oiprd should charge the
chapter 7 | Public Complaint Investigations 171

officer. As discussed more fully in section police. In others, it may want to launch
8.210, an independent public complaints a new investigation, consistent with my
prosecutor will then be given carriage of recommendation in section 7.313. Still
the file. in others, it may wish to proceed directly
175. The prosecutor will review the inves- with laying a disciplinary charge.
tigative report and may decide to settle the 179. Ultimately, the oiprd should have
complaint or withdraw the charge. Other- the authority to lay disciplinary charges.
wise, the prosecutor will serve a notice of This includes charges that come to
disciplinary hearing on the officer and the light during or in connection with its
matter will be heard before an independent investigation.
adjudicator, namely a renewed ocpc.
176. In deciding whether to charge an Recommendation 7.25
officer, the oiprd should not be confined
to laying charges as described in the com- The oiprd should be vested with the
plaint itself. power to lay disciplinary charges
against police officers.
177. The oiprd investigation may indi-
cate that an officers actions constitute
180. During my consultations, several
misconduct that was not specifically
stakeholders expressed concern that
alleged by the complainant. For example,
the Police Services Act currently contains
a complainant in a use of force incident
unfortunate wording with regard to those
may complain about alleged discreditable
complaints that will result in disciplinary
conduct because the officer used profane
charges and proceed to a hearing.
and abusive language, but the oiprd
investigation reveals that neglect of duty 181. First, the Police Services Act draws
charges are also appropriate because the a distinction between substantiated
officer failed to comply with an applicable and unsubstantiated complaints. This
order. Moreover, an officer may engage in language is essentially used to describe
misconduct during the oiprd investiga- whether there are reasonable grounds to
tion, such as intentionally obstructing it. believe the conduct of the officer consti-
tutes misconduct.
178. In some cases, the oiprd may
wish to refer a concern to the chief of
172 Report of the Independent Police Oversight Review

182. Unfortunately, when complainants 186. In my view, the substantiated/


are told at the conclusion of an inves- unsubstantiated and serious/not seri-
tigation that their complaint has been ous terminology should be removed from
substantiated, it creates a great deal of the legislation. Instead, the oiprd should
confusion. That language conveys a final- communicate the results of an investiga-
ity that is misleading. In reality, the mat- tion by indicating whether or not there
ter may be resolved informally or proceed were reasonable grounds to lay a charge.
to a disciplinary hearing where the officer 187. Under the new complaints model,
is cleared. officers should be charged in all cases
183. It is immensely dissatisfying to a where there are reasonable grounds to
complainant to be informed that their believe that they committed misconduct
complaint is substantiated, only to have or unsatisfactory work performance. As
the complaint dismissed at a disciplinary discussed in section 8.210, following that
hearing. The fact that the complaint was charge, the independent public com-
initially substantiated suggested that it plaints prosecutor will evaluate the case
was already proven. and may decide to settle or withdraw the
184. Second, the Police Services Act draws charge. If the case does not settle or the
a distinction between serious misconduct charge is not withdrawn, the officer will
and misconduct that is not of a serious be served with a notice of disciplinary
nature. It does not, however, explain the hearing.
basis upon which the distinction is made.
It is immensely dissatisfying to
185. Not only does this distinction add
a complainant to be informed
further complexity to an already complex
complaints process, but it undermines that their complaint is sub-
complainant confidence in and satisfac- stantiated, only to have the
tion with civilian police oversight. Some complaint dismissed at a disci-
complainants, for example, believe that plinary hearing. The fact that
the characterization of their complaint
the complaint was initially
as being not serious means that their
substantiated suggested that
complaint is not important.
it was already proven.
chapter 7 | Public Complaint Investigations 173

Recommendation 7.26 This is sometimes an awkward arrange-


ment, however, and can lead to significant
The serious/not serious and sub- delays in an investigation.
stantiated/unsubstantiated termi-
191. In my view, while these pow-
nology for public complaints should
ers should be maintained, the duty to
be abolished.
cooperate with the oiprd also should
be set out and specified in the legislation.
Consistent with my recommendations for
7.343 Duty to cooperate
the siu, this duty should extend beyond
188. To effectively investigate com- just police officers to include other police
plaints, the oiprd must be equipped employees.
with robust evidence collection tools. In
section 5.300, I discussed the need for
Recommendation 7.27
strong evidence collection tools in siu
investigations. The same is true for the The general requirements of the duty
oiprd. to cooperate with the oiprd, as well
189. Currently, there is no clear legislated as the timing of that requirement,
duty on police services, police officers, should be set out in the legislation.
and other police personnel to cooperate In particular, the legislation should
with an oiprd investigation. That said, stipulate the following:
I have been advised that, in practice, the
(a) The duty to cooperate arises
police and the oiprd generally have a
immediately upon oiprd involve-
good working relationship and manage
ment; and
to work together appropriately during the
course of an investigation. (b) The duty to cooperate requires the
police to comply forthwith with direc-
190. Under the Police Services Act, the
tions and requests from the oiprd.
oiprd has extensive regulatory search
and seizure powers.330 It also has all the
powers provided in section 33 of the Pub-
lic Inquiries Act, 2009, such as the power
to summons witnesses and evidence.331
174 Report of the Independent Police Oversight Review

Recommendation 7.28 discussed in section 5.330. The decision to


lay a charge should be at the discretion of
The general types of information or the oiprd and not require consent.
evidence that the oiprd is normally
entitled to receive, as well as any
Recommendation 7.30
restrictions on the information or evi-
dence the oiprd can request, should
The legislation should include a pro-
be set out in the legislation.
vincial offence for failing to cooperate
with the oiprd punishable by fine,
imprisonment, or both.
Recommendation 7.29

194. Finally, maintaining effective evi-


The duty to cooperate with the oiprd
dence collection tools in cases involving
should specifically extend to civilian
the siu or youth may create unique
members of a police force, special
challenges.
constables employed by a police
force, and auxiliary members of a 195. First, in some cases, an officers con-
police force. duct may attract the scrutiny of both the
siu and oiprd. In section 9.200, I discuss
192. As I suggested in section 5.330 with the issue of concurrent investigations and
respect to the siu, to be effective, the duty recommend that criminal investigations
to cooperate must be enforceable. Cur- have priority over civil complaints. I also
rently, section 79 of the Police Services Act recommend that the siu provide a copy
makes it an offence to harass, coerce, or of its investigative file to the oiprd at
intimidate a complainant; or to hinder, the end of the sius case, at the request
obstruct, or provide false information to of the oiprd, and subject to any privacy
the oiprd. The consent of the Attorney and confidentiality conditions.
General is required before a person can 196. Second, complaints to the oiprd
be prosecuted under the provision.332 are often made by, or on behalf of, a
193. This provision should be updated in young person. Often that young person
the new legislation to be consistent with the was involved in an interaction with the
offence for failing to cooperate with the siu, police. The police records of that inter-
action become youth records under the
chapter 7 | Public Complaint Investigations 175

Youth Criminal Justice Act.333 Recommendation 7.31

197. I was informed that, until May


The provincial government should
2016, the oiprd was required to apply
request that the federal government
to a youth court in order to access youth
amend the Youth Criminal Justice Act to
records for its investigations and reviews.
permit the oiprd to access records.
In May 2016, an Order-in-Council
granted the oiprd access to these records
in certain circumstances.334 Notably, those
7.344 Limitations
circumstances do not include retained
investigations regarding interactions with 200. A fair and effective complaints pro-
a young person that result in extrajudicial cess requires timely investigations.
measures. 201. At present, there is a six-month
198. Furthermore, if the complainant is limitation period for serving a notice
a victim of a crime committed by another of disciplinary hearing on a police offi-
young person, the Order-in-Council does cer. For rank and file officers, the clock
not allow production of the records of starts running from the day on which the
that other person without their consent. oiprd retains the investigation or refers
This consent is unlikely to be provided. it to the police force. For chiefs of police
and deputy chiefs of police, the clock
199. Records otherwise protected by
starts running when the oiprd refers the
the Youth Criminal Justice Act may be
complaint to the police services board.335
highly relevant to oiprd investigations.
For example, they may be pertinent to 202. If more than six months have
an examination of the underlying facts elapsed, subsection 83(17) of the Police
of a complaint or to the credibility of a Services Act provides that a notice of disci-
witness or complainant. Production of plinary hearing may not be served unless
these records to the oiprd, with proper the police services board (in the case of
restrictions, could assist with the admin- municipal officers) or the opp Commis-
istration of justice and the proper reso- sioner (in the case of members of the
lution of complaints. opp) believes the delay was reasonable.336
203. With respect to municipal officers,
the chief of police not the oiprd is
176 Report of the Independent Police Oversight Review

responsible for bringing the application differently from investigative delay in


before the board for permission to serve other professional misconduct contexts,
the notice of hearing beyond the six- where it may be raised at the hearing and
month limitation period. This is the case addressed in accordance with adminis-
even if the oiprd retained the investiga- trative law and natural justice principles.
tion. The oiprd does not have legislated 208. Eliminating the time limit for serv-
standing to be heard on the application, ing a notice of hearing will help stream-
even when the timeliness of its investiga- line the complaints process and reinforce
tion is under scrutiny. Rather, the oiprds the oiprds independence.
explanation for the delay is placed before
209. Moreover, as I noted in section
the board indirectly through the chief.
7.342 and explain more fully in section
204. In some cases, the chief of police 8.210, under the new complaints regime,
may be in a conflict of interest or poorly the public complaints prosecutor, not the
situated to explain the delay. For example, oiprd, will have responsibility for serving
the chief may be the subject of the com- the notice of hearing on the officer. After
plaint or an siu investigation may have the oiprd lays a disciplinary charge, the
delayed the oiprd investigation. public complaints prosecutor will be given
205. Finally, many police services carriage of the file. The prosecutor may
board members with whom I spoke also attempt to settle the case before serv-
acknowledged that they lack the knowl- ing the officer with a notice of hearing.
edge and training to effectively address Imposing a six-month deadline for serv-
these applications. ing a notice of hearing could hamper the
206. It is troublesome that a board or investigation or the prosecutors capacity
the opp Commissioner can effectively to settle a matter without the need for a
stay disciplinary charges if six months formal hearing.
have passed without holding an eviden-
tiary hearing or being restricted by the It is troublesome that a board
jurisprudence governing stays for unrea- or the opp Commissioner can
sonable delay or an abuse of process.337 effectively stay disciplinary
207. Investigative delay into police charges if six months have
misconduct should not be treated any passed.
chapter 7 | Public Complaint Investigations 177

210. Finally, I hasten to add that, if the 7.400 Transparency and


oiprd were properly funded, then it would accountability
rarely take longer than six months to com- 213. A transparent and accountable
plete a conduct investigation. The oiprd public complaints process is crucial to
should work towards improving its perfor- public and police confidence in civilian
mance targets to ensure timely completion police oversight.
of investigations. There should not, however,
214. In this section, I make recommen-
be an arbitrary six-month limitation period
dations to improve the transparency and
for completing an investigation and serving
accountability of the oiprd.
a notice of disciplinary hearing.
215. First, I make recommendations
211. I recommend the elimination of the
about how the oiprd should share the
six-month limitation period altogether.
results of its investigations with the
At a minimum, the public complaints
involved parties and the public at large.
prosecutor should not have to rely on
police chiefs, boards, and the opp Com- 216. Second, I discuss how the oiprd can
missioner for the extension. This inter- improve its transparency and accountabil-
mingling of roles and responsibilities ity by providing timely information about
hampers the appearance and actual inde- the status of complaints to public com-
pendence of the oiprd and the public plainants, police officers, and police forces.
complaints prosecutor.
212. Concerns regarding inordinately 7.410 Results of investigations
long or delayed investigations should be 217. Transparency and accountability in
addressed at the disciplinary hearing in oiprd decision-making depends in part
accordance with administrative law and on the oiprd sharing the results of its
natural justice principles. investigations.
218. What information should the
Recommendation 7.32 oiprd share about its investigations?
With whom should this information
The six-month limitation period for
be shared? These are important con-
serving a notice of hearing for disci-
siderations when assessing the agencys
plinary matters should be eliminated
transparency and accountability.
for public complaints.
178 Report of the Independent Police Oversight Review

219. Currently, when the oiprd screens For example, if a complaint proceeds
out a complaint, it must notify the to a hearing, the dissemination of the
complainant and chief of police of the investigative report prior to the hearing
police force to which the matter relates could taint witnesses.
in writing, with reasons.338 For conduct 224. In my view, oiprd decisions must
complaints, the chief of police, in turn, be transparent to complainants, police
informs the relevant officer.339 officers, and police chiefs.
220. When a conduct complaint is 225. When the oiprd screens out a
screened in but not substantiated, the complaint, it should provide reasons
investigative report is provided to the explaining its decision.
complainant, chief of police, and police
officer.340 In my view, oiprd decisions
221. For substantiated complaints, the must be transparent to com-
chief of police receives the investigative plainants, police officers, and
report.341 The Police Services Act is silent,
police chiefs.
however, about whether the complainant
and police officer also should receive the
226. When a complaint is screened
report.
in and investigated, the oiprd should
222. As a matter of practice, the explain whether it has decided to lay a
oiprd currently requires that the charge and, if not, why not. The oiprd
investigative report be provided to should generally share the investigative
complainants in both unsubstantiated report with the complainant, police offi-
and substantiated cases. It may, how- cer, and police chief. That report, how-
ever, minimally redact certain private ever, may need to be redacted in part. The
information, such as home addresses oiprd also may need to delay sharing
or telephone numbers. the report or require undertakings to
223. The oiprd noted that there may accommodate administration of justice
be circumstances where it should be concerns.
allowed to delay releasing the investi-
gative report or require undertakings to
be signed before the report is released.
chapter 7 | Public Complaint Investigations 179

Recommendation 7.33 could face potential prejudice if detailed


information about each public complaint
Decisions of the oiprd should be was widely available. They noted that, if a
transparent to complainants, police complaint is screened out or does not pro-
officers who are the subject of a com- ceed to a disciplinary hearing, the public
plaint, and police chiefs of the forces interest in having full details about the
to which the complaint relates. complaint is diminished.
232. I recognize that the need for public
227. Beyond the parties with an imme-
transparency and accountability must be
diate interest in a particular complaint,
balanced with the rights and interests of
there is also a broader public interest in
complainants and police officers.
complaints made to the oiprd and their
outcomes. 233. Currently, the oiprd publishes
yearly statistical information about the
228. On the one hand, the public wants
complaints it receives. This includes the
to make sure that the oiprd is account-
number of complaints that are screened in
able for the decisions it makes and that it
and screened out, including the number
is fulfilling its duty to oversee the public
of complaints screened out under each
complaints system fairly and effectively.
ground. It also includes the number of
229. On the other hand, complainants substantiated and unsubstantiated com-
and officers who are the subject of com- plaints. And it breaks down the number
plaints may want to maintain a certain of substantiated complaints that are seri-
level of privacy. ous and those that are not.
230. For example, complainants may be 234. In addition, the oiprd publishes
deterred from filing legitimate complaints statistics on its customer service resolu-
if they are concerned that their names tion and informal resolution programs,
and information about their complaints requests for review, and performance
will be widely publicized. measures. In some cases, anonymized
231. Officers, too, may have genuine res- summaries of a few cases accompany
ervations about making all complaints statistics to serve as examples.
public. During my consultations, for 235. Besides publishing statistics, the
instance, some officers suggested that they oiprd also makes public all hearing deci-
180 Report of the Independent Police Oversight Review

sions from disciplinary hearings resulting 239. In the absence of a disciplinary


from public complaints. hearing, the desire for public transparency
236. In my view, disciplinary hearing deci- and accountability is met by having the
sions should continue to be made public. oiprd publish summary statistics, disag-
As I explain in section 8.320, disciplinary gregated by outcome type, together with
hearing decisions should be released as soon anonymized summaries of example cases.
as practicable and made available to the This will allow the public to scrutinize
public (see recommendation 8.8). oiprd decision-making, identify trends,
and ensure that the oiprd is working
237. Public trust and confidence in
effectively in the public interest.
civilian oversight and the integrity of
the disciplinary process is fostered by
openness and publicity of disciplinary Recommendation 7.34
hearings. There is a heightened public
The oiprd should collect and publish
interest in knowing about these cases
summary information on the out-
and a correspondingly lower expectation
comes of all public complaints.
from complainants and officers that infor-
mation about these complaints will be
shielded from public scrutiny.
7.420 Communication
238. But even when complaints do not
culminate in a disciplinary hearing, there 240. During my consultations, I heard
is still a public interest in knowing that a number of complaints about commu-
complaints were made and their out- nication and delay in the oiprd process.
comes. In these cases, the public desire Public complainants and policing stake-
to have full information, such as an holders both voiced their concerns that,
investigative report or the reasons for like the siu, the oiprd sometimes fails
screening out a particular complaint, must to effectively communicate with parties
be considered against complainants and and resolve cases.
officers legitimate expectations of privacy 241. The oiprd has developed a series of
and the potential impact release of such performance targets. They are an import-
information would have on the public ant tool for monitoring, evaluating, and
complaints system. improving the oiprds processes and
chapter 7 | Public Complaint Investigations 181

accountability. The oiprd should con- Recommendation 7.36


tinue to work towards improving these
The oiprd should communicate peri-
targets such that cases are resolved in
odically with involved parties about
a timely manner and parties remain
the status of a complaint and inform
informed.
them of its outcome as soon as is
242. In addition, in individual cases, the
practicable.
oiprd should periodically report to the
complainant, police officer, and police
force about the status of its investiga-
tion and the reasons for any delay. It 7.500 Systemic review and
could, for example, provide an update monitoring
within thirty days from the filing of 244. The oiprd must have the proper
the complaint and at least every ninety tools and resources to engage in systemic
days thereafter, explaining whether the reviews and monitor complaints. This will
investigation is ongoing and how much allow the oiprd to be an effective, trans-
longer it will take. parent, and accountable oversight agency.
243. The transparency and account- 245. Currently, the oiprd may examine
ability of the public complaints process and review issues of a systemic nature
is enhanced through keeping parties regarding complaints made by members
apprised as to the status of complaints of the public. It also may make recom-
and their disposition. mendations respecting such issues.342
246. Below, I recommend providing for
Recommendation 7.35 heightened accountability in these sys-
temic reviews. I also make recommen-
The oiprd should work towards per- dations aimed at improving the oiprds
formance metrics, reportable to the monitoring capabilities.
public, to ensure timely completion
of its work.
7.510 Systemic reviews
247. The oiprd has the power to con-
duct reviews on systemic issues regarding
public complaints. As part of its review,
182 Report of the Independent Police Oversight Review

it also may make recommendations on independent civilian inquiry. These issues


these issues to the Minister of Commu- should not be wholly left to the Ministry
nity Safety and Correctional Services, the of Community Safety and Correctional
Attorney General, chiefs of police, boards, Services and the whim of the government
or any other person or body.343 of the day. Nor should they be left to
248. These reviews generally look beyond the individual police services and boards
any particular complaint to examine to craft a patchwork response across the
whether systemic failings have occurred. province. Instead, the oiprd should be
They make recommendations to address properly resourced and funded to study
these failings and promote public trust and report on systemic issues in policing.
and confidence in policing. 251. Any serious investment into sys-
249. In recent years, there has been temic investigation requires building
widespread community interest and institutional expertise in disciplines that
complaints around certain policing issues. are relevant to the modern-day policing
These issues often merit deep and sen- context. This means hiring and empow-
sitive inquiry into the policing rationale ering investigators and researchers with
for certain policies and practices as well training and experience in areas such as
as the real-life impact of these policies anti-racism and human rights.
and practices on the public. This is true
for the systemic investigations already There is demonstrable public
undertaken by the oiprd including strip interest with respect to a
searches, dna sweeps, the G20 protests, number of policing issues that
and the practices for policing Indigenous would greatly benefit from
peoples in Thunder Bay. It is also true for independent civilian inquiry.
systemic issues that the oiprd has not
specifically addressed, such as the police 252. The effectiveness of the oiprds
response to systemic racism or domestic systemic reviews further turns in part
violence and sexual assault reporting. on ensuring that there is accountability
250. There is demonstrable public inter- once a review is completed.
est with respect to a number of policing 253. Currently, the Police Services Act
issues that would greatly benefit from does not require that the oiprd publish
chapter 7 | Public Complaint Investigations 183

a written report of its reviews. Nor does Recommendation 7.37


it give the oiprd the power to compel a
police force to implement a recommen- The oiprd should make the results

dation. Indeed, the legislation contains and recommendations of systemic

no requirement for follow up of any reviews in the form of a written

kind to the recommendations made by report. The report should be available

the oiprd. to the public.

254. At the very least, there should be


a requirement that the oiprd make its
Recommendation 7.38
recommendations in the form of a written
report. This report should be made pub- The oiprd should have the author-
lic, with copies provided to the relevant ity to designate in writing one or
police chiefs and police services boards. more chiefs of police to respond to
255. The oiprd also should be able to recommendations from a systemic
direct a chief of police to report back to review. The designated chief of police
the oiprd explaining if the oiprds rec- or chiefs of police should be required
ommendations were accepted and, if not to respond in writing to the oiprd as
accepted, the reasons why not. Where soon as is feasible, but in any event
the recommendations relate to a specific within six months.
police force or forces, the oiprd should
designate the chiefs from those forces to
respond. Where the recommendations 7.520 Monitoring
relate more generally to police forces
256. Public trust and confidence in
in Ontario, the oiprd should have the
civilian police oversight is enhanced by
authority to designate one or more chiefs
equipping the civilian oversight bodies
of police required to provide a response.
with the tools to monitor and respond to
This response should be provided as soon
issues of concern in policing and policing
as is feasible, but in any event within six
oversight.
months.
257. As I explain more fully in chap-
ter 11, there is a benefit to collecting
demographic data which can be used to
184 Report of the Independent Police Oversight Review

improve police services and the oversight comes of public complaints. This should
bodies. My recommendations in chapter include the number of hearings resulting
11, however, should not be read to the from public complaints, the number of
exclusion of collecting data on non-de- convictions, and the penalties imposed.
mographic matters. Where disciplinary charges are laid but
258. Collecting and analyzing non-de- resolved prior to a hearing, the oiprd
mographic data can help to identify indi- should track how many charges were
vidually problematic behaviour. It also withdrawn or settled and the terms of
can be used to uncover matters of broad the penalties imposed.
concern, such as trends and deficiencies 261. Tracking and publishing data on
in officer training. public complaints may help to identify
259. As a result, I recommend that the potential patterns and issues in the public
oiprd collect data on public complaints complaints process.
to identify potential patterns with respect
to individual officers and forces, sys- Recommendation 7.39
temic and policy issues, and disciplinary
outcomes. The oiprd should monitor complaints
and publish the results of disciplinary
260. Notably, the oiprd should track
charges, including the outcomes and
and publish the general nature and out-
penalties imposed.
CHAPTER 8

Public Complaint Adjudications

8.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

8.200 Independent adjudications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186


8.210 Independent prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
8.220 Independent adjudicators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
8.230 Judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

8.300 Resolutions and decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195


8.310 Resolutions without a hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
8.320 Release of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

185
186 Report of the Independent Police Oversight Review

8.100 Introduction public complaints prosecutors before


1. Who should prosecute and adjudicate independent adjudicators, namely a
public complaints? The answer to this renewed ocpc.
question is fundamental to public and 6. Second, I recommend that public
police confidence in civilian oversight. complaints be resolved expeditiously,
Trust in the public complaints process with timely decisions shared with the
requires that public complaints be fairly public at large.
prosecuted and adjudicated.
2. During my consultations, virtually all 8.200 Independent adjudications
stakeholders including complainants,
7. The issue of who prosecutes and
front-line police officers, police chiefs,
adjudicates public complaints about
and members of the public agreed that
potential police misconduct is critical to
the current system for prosecuting and
confidence in police oversight. The pros-
adjudicating public complaints is not
ecution and adjudication of complaints
working and fails to promote trust and
must be, and must be seen to be, fair and
confidence.
unbiased, both by the public and policing
3. There are serious concerns about real stakeholders.
or apparent bias when public complaints
8. Under the current system, a disci-
are prosecuted and adjudicated by people
plinary hearing must be held when an
selected by the chief of police. A fair and
investigation has substantiated an allega-
effective public complaints adjudication
tion that a police officer engaged in seri-
system demands greater independence
ous misconduct. It also may be required
and impartiality.
in some cases of substantiated, but not
4. In this chapter, I make recommenda- serious misconduct.344
tions to improve public complaint adjudi-
9. At the hearing, the prosecutor is
cations. As I explain, accountability and
selected by the chief of police. The pros-
transparency are best served by having
ecutor can be another police officer or a
an open and timely public complaints
person authorized under the Law Society
adjudication model.
Act.345
5. First, I recommend that public com-
plaints be prosecuted by independent
chapter 8 | Public Complaint Adjudications Public Complaint Adjudications 187

10. In addition, the chief of police may that the current process appears free from
delegate the conduct of the hearing to bias and completely impartial.
a police officer or judge.346 During my
consultations, I heard that chiefs often There is broad consensus from
ask retired or current senior police officers both the public and the police
to take on this role. that an adjudicative process
11. As a result, both the prosecutor and where the chief of police chooses
hearing officer may be senior police offi- both the adjudicator and the
cers. I am told that this is, in fact, a com-
prosecutor is not fair and does
monplace practice across the province,
whether a disciplinary hearing results not meet the appearance of
from a public or internal complaint. fairness test.
12. There is nothing necessarily nefarious
14. I have heard from the police who
about this. The chief is the disciplinarian
potentially stand accused that they have
in the employment context. The problem
no confidence in the fair adjudication of
though is that this arrangement does not
their matters. Members of the public have
keep pace with expectations of adjudica-
also told me that the internal prosecu-
tive fairness. The role of the adjudicator
tion and adjudication of complaints about
today is seen as more in the nature of a
police by police is one of the main reasons
neutral arbiter, regardless of how it was
they would not make a complaint. Both
historically conceived.
police and potential complainants see the
13. There is broad consensus from both process as rigged.
the public and the police that an adju-
15. The current system should not con-
dicative process where the chief of police
tinue. Rather, as I explain below, I believe
chooses both the adjudicator and the
that independent prosecutors should
prosecutor is not fair and does not meet
prosecute public complaints before a
the appearance of fairness test. Although
completely independent adjudicative
the Divisional Court has said the exist-
body, a reformed ocpc.
ing regime complies with the Canadian
Charter of Rights and Freedoms, it is not
ideal.347 There can be no serious argument
188 Report of the Independent Police Oversight Review

8.210 Independent prosecutors 19. For example, public complainants


16. The current system for prosecuting may have concerns about a potential
public complaints has lost the confidence conflict of interest if the oiprd directs
of many members of the public and police the chief to hold a hearing, even after
officers. the chief decided that a hearing was not
warranted. In such cases, the prosecution
17. Irrespective of whether a complaint
of the public complaint could be under-
is initiated by a member of the public or
mined by the chief s power to control
a chief of police, the chief designates the
the selection of the person filling the key
prosecutor at the disciplinary hearing.348
prosecutorial role.
This prosecutor may be either a police
officer from any force of a rank equal to or 20. Reasonable members of the public
higher than the officer who is subject to worry that officers are not being vigor-
the hearing, or a person authorized under ously or fairly prosecuted when the offi-
the Law Society Act.349 Their selection is cers peers and co-workers are managing
within the sole discretion of the chief. the prosecutions.
21. As we move to a more independent
Reasonable members of the and fair public complaints system, inde-
public worry that officers are pendent public complaints prosecutors
not being vigorously or fairly should be charged with prosecuting all
public complaints. The establishment of
prosecuted when their peers
independent public complaints prosecu-
and co-workers are managing tors will help avoid the appearance of
the prosecutions. bias. It also will increase confidence in the
fairness and transparency of prosecutions
18. Some members of the public noted in the public complaints system.
that having the chief of police choose the
22. Following the oiprds decision to lay
prosecutor created a perception of bias.
misconduct charges, the oiprd should
They believed that prosecutors may be
turn carriage of the file over to a public
unduly influenced by chiefs to produce
complaints prosecutor.
certain results because they serve at their
request. 23. These public complaints prosecutors
should be legally trained and have the
chapter 8 | Public Complaint Adjudications Public Complaint Adjudications 189

skills and knowledge to effectively prose- over to the prosecutor. Responsibility for
cute police disciplinary cases. They should the prosecution at the hearing will then
be selected and employed by the Min- fall to the public complaints prosecutor,
istry of the Attorney General, thereby not a prosecutor appointed by the chief.
enhancing their independence from the 28. Under this new adjudicative model,
chief of police. a charged officer will be the respondent.
24. The public complaints prosecutor The officer will be entitled to all of the
will review the file and decide how to administrative and natural justice pro-
proceed. Similar to Crown attorneys, tections afforded in other professional
they will have broad discretion and discipline realms.
decision-making authority to carry out 29. The oiprd will not have standing at
their functions. the disciplinary hearing. The public com-
25. This may include settling the mat- plaints prosecutor will prosecute the case
ter, as I will discuss more fully in section and act in the public interest. This will
8.310. preserve the oiprds role as an impartial
26. It also may include withdrawing the and independent investigative body.
charges, much like a Crown prosecutor 30. Similarly, public complainants will
has the discretion to withdraw criminal not have standing at the disciplinary
charges. If there is no reasonable pros- hearing. That said, they will be stake-
pect of success or it is not otherwise in holders in the overall process and likely
the public interest to proceed, there is no be witnesses. Moreover, their views on
point in continuing a prosecution. The resolution and appropriate sanction will
public complaints prosecutor should be considered by the prosecutor.
have an absolute discretion to withdraw 31. In my view, it asks too much of indi-
charges in appropriate cases. vidual citizens to expect them to place
27. If a case is not settled and the charges themselves in such stark opposition to
are not withdrawn, the public complaints a police officer. The public interest will
prosecutor will serve a notice of disci- be represented by the public complaints
plinary hearing on the police officer. This prosecutor. It is unnecessary to have the
should be done within forty-five days of complainants bear the weight and cost
the oiprd turning carriage of the matter of full party participation.
190 Report of the Independent Police Oversight Review

32. From time to time, certain cases 8.220 Independent adjudicators


may attract intervener applications from 34. There is almost universal agreement
a public complainant or the oiprd. Other that the current system for adjudicating
interested parties also may seek leave to disciplinary matters is broken and does
intervene. These can be dealt with on a not have the confidence of either the
case-by-case basis according to the rel- public or the police. Because disciplinary
evant jurisprudence. hearings are currently conducted by chiefs
33. In general, however, there should be or their delegates,350 many members of
two parties to any disciplinary hearing the public and police officers believe the
against an officer: the public complaints process is unfair.
prosecutor and the officer. 35. In my consultations, for example,
several members of the public suggested
Recommendation 8.1 that allowing a chief of police to select the
hearing officer may result in bias. They
Independent public complaints pros- reasoned that, because hearing officers
ecutors who work at the Ministry of are selected by the chief, they may feel
the Attorney should prosecute pub- pressured to rule in the chief s favour.
lic complaints. After the oiprd lays a
36. Police associations shared similar
disciplinary charge, the independent
concerns. They noted that hearing offi-
public complaints prosecutor should
cers may be tempted to make decisions
be given carriage of the file.
to appease the chief because they depend
upon the chief s favour for continued
employment as a hearing officer.
Recommendation 8.2
37. Police associations also remarked
The oiprd and public complainants that hearing officers sometimes lack the
should not have standing at disci- legal training and knowledge necessary
plinary hearings, but may seek leave to conduct disciplinary hearings in a fair
to intervene. Other interested parties and impartial manner.
also may seek leave to intervene. 38. Chiefs of police echoed these con-
cerns. They explained that hearing officers
drawn from the ranks of current or retired
chapter 8 | Public Complaint Adjudications Public Complaint Adjudications 191

senior officers possess ample policing plaints was modified to require inde-
experience, but often are ill-equipped to pendent, legally-trained adjudicators
decide complex legal issues. Such issues for disciplinary hearings resulting from
now arise with increasing frequency public complaints.
during disciplinary hearings. 44. The perception that a hearing officer
39. According to the chiefs, the lack is beholden to a chief would disappear.
of legal experience may complicate the 45. Moreover, such adjudicators would
hearing process because hearing officers bring valuable legal knowledge and
are left to sort out difficult legal issues experience, benefitting the hearing and
beyond their expertise. Moreover, appeals decision-making processes.
to correct legal errors consume resources
and delay finality in the case. There is almost universal
40. There was thus widespread support agreement that the current
for greater institutional independence and system for adjudicating disci-
impartiality of hearing officers.
plinary matters is broken and
41. As part of his 2005 review on the does not have the confidence of
police complaints system, Chief Justice
either the public or the police.
LeSage recommended that the Ontario
government create a roster of indepen-
46. The ocpc is already an expert body
dent adjudicators to preside over disci-
of independent adjudicators with legal
plinary hearings.351
training and police knowledge. The ocpc
42. Part of the rationale for Chief Jus- has developed this expertise and knowl-
tice LeSages recommendation was that edge primarily through its adjudication
police-appointed adjudicators may lack of disciplinary appeals from hearings
credibility because they are in the employ conducted by police services in relation
of the police services. Despite the merits to both public and internal complaints.
of the recommendation, however, it was
47. In addition, the ocpc is clustered
never acted on.
within the Safety, Licensing Appeals and
43. Confidence in the disciplinary pro- Standards Tribunals Ontario, a group of
cess would undoubtedly improve if the administrative tribunals. Most mem-
current system for adjudicating com- bers of the ocpc are cross-appointed to
192 Report of the Independent Police Oversight Review

other tribunals where they conduct first Independent adjudication of public com-
instance hearings and apply administra- plaints by the ocpc will eliminate these
tive law principles. Since clustering took bad optics and promote a fairer, more
place, there has been a focus on ensuring transparent process.
high-quality adjudication, member train- 52. The ocpc is confident that it could
ing, and open, merit-based recruitment efficiently handle public complaint adju-
of members. dications if properly resourced. It is worth
48. In my view, concerns about the adju- noting that currently only a small number
dication of public complaints could be of public complaints result in hearings
addressed by having the ocpc, rather each year.352
than chief-appointed hearing officers, 53. Moreover, as I discuss in section
conduct first instance hearings of all 8.230, if the ocpc conducts first instance
public complaints. disciplinary hearings for public com-
49. Indeed, the ocpc submitted that plaints, its authority to hear appeals from
responsibility for all first instance disci- such decisions should be eliminated. This
plinary hearings should be moved away would free up resources and abbreviate
from police services to the ocpc and that the disciplinary process.
the right to appeal disciplinary decisions 54. Finally, in order to further economize
to the ocpc should be eliminated. resources, first instance hearings resulting
50. Moving first instance disciplinary from public complaints could be heard
hearings for public complaints away by a single member of the ocpc. Cur-
from police services to the ocpc will rently appeals are typically (although not
help foster confidence in the disciplinary required to be) heard by multi-member
system. panels.353
51. Members of the public have legiti- 55. The case for independent adjudica-
mate concerns about the current system. tion of public complaints by the ocpc
They are baffled by an independent civil- is clear.
ian agency that turns public complaints
over to the police service being com-
plained about, to be adjudicated by an
individual selected by the police chief.
chapter 8 | Public Complaint Adjudications Public Complaint Adjudications 193

Recommendation 8.3 hearings under part V have become too


formal, complex, and adversarial.
The ocpc should conduct all
59. Although the most appropriate model
first instance hearings of public
for addressing internal complaints is
complaints.
beyond the scope of this review, it bears
noting that such complaints are essentially
56. I recognize that many stakeholders,
employment matters and should be treated
including several police associations, have
as such under the Police ServicesAct.
suggested that independent adjudication
outside the chiefs purview also should be
There is wide agreement that
available for disciplinary hearings result-
ing from internal chiefs complaints. the paramilitary disciplinary
process that has developed
57. My mandate is focused on the police
oversight bodies and, by implication, pub- for adjudicating internal
lic complaints. That said, public and inter- complaints is out of step with
nal complaints are both currently subject labour relations, frustrating
to the same model of disciplinary pro- policing stakeholders.
ceedings under part V of the Police Ser-
vices Act. Disciplinary hearing decisions 60. Many chiefs of police emphasized
resulting from either type of complaint their desire for greater autonomy to man-
also are subject presently to an appeal to age discipline within their services, con-
the ocpc.354 Therefore, changes to the sistent with their statutory duty to ensure
model for adjudicating public complaints that police officers carry out their duties
and to the mandate of the ocpc may have in accordance with the legislation.355
implications for how internal complaints
61. At the same time, several police asso-
are handled.
ciations stressed the need for a more fair
58. Throughout my consultations, a and independent adjudicative process,
number of police associations, chiefs with impartial, legally-trained, and skilled
of police, and police services boards adjudicators.
expressed frustration with the current
62. There is wide agreement that the
adjudicative model for internal com-
paramilitary disciplinary process that has
plaints. They noted that the quasi-judicial
194 Report of the Independent Police Oversight Review

developed for adjudicating internal com- may be disciplined by their employers


plaints is out of step with labour relations, and subject to proceedings before their
frustrating policing stakeholders. Public professional regulatory bodies.
confidence in the disciplinary process has 67. Second, if a police officers miscon-
been undermined as a result. duct has already been the subject of a
63. In my view, serious consideration prior proceeding, the chief of police, pub-
should be given to the appropriate model lic complaints prosecutor, and ocpc could
for adjudicating internal complaints and take into account any prior conviction and
what role, if any, the ocpc should play sentence in any subsequent proceedings.
in that process. The public complaints prosecutor in the
64. In any event, attention should be subsequent proceeding may, for example,
given to the interaction between the pub- decide to withdraw certain charges or to
lic and internal complaints systems. If the recommend a reduced sentence in light
current disciplinary model for internal of a previous conviction and sentence.
complaints is maintained, then an officer 68. Clearly, there is a need for the
could conceivably be disciplined for the internal and public complaints systems
same misconduct twice: once through to effectively work together to ensure
the internal disciplinary process and once fairness, accountability, and trust for all
through the public complaints process. stakeholders.
65. I understand that changes to the
internal disciplinary process are currently Recommendation 8.4
under consideration and thus believe that
making definitive recommendations Internal complaints should be gov-
about the interaction between the two erned by the Police Services Act. Consid-
systems is premature. I will, however, eration should be given to what role,
make two observations. if any, the ocpc should have in the
internal disciplinary process and how
66. First, it is not uncommon for the
the internal and public disciplinary
same incident of professional misconduct
processes interact.
to be scrutinized through more than one
process. Lawyers and doctors, for example,
who engage in professional misconduct
chapter 8 | Public Complaint Adjudications Public Complaint Adjudications 195

8.230 Judicial review while still protecting the litigants rights


69. If the ocpc conducts first instance and interests.
disciplinary hearings of public com- 74. This process of judicial review in the
plaints, its authority to hear appeals from Divisional Court should be adopted as
such decisions should be eliminated. the review procedure available after an
Instead, the ocpcs decisions should ocpc hearing and disposition.
be subject to judicial review under the
Judicial Review Procedure Act before the
Recommendation 8.5
Divisional Court.
70. Under the current regime, chiefs of Rights of review of a decision of the
police or their delegates normally conduct ocpc from a first instance hearing of

first instance disciplinary hearings result- a public complaint should be confined


ing from public complaints.356 The ocpc to the right of judicial review by the
hears appeals from these decisions.357 The litigants in the Divisional Court.
ocpcs decisions may in turn be judicially
reviewed by the Divisional Court.358
71. As I recommend in section 8.220, 8.300 Resolutions and decisions
the ocpc should be transformed into a 75. To be effective and accountable, the
first instance hearing tribunal for public public complaints process must ensure
complaints. that complaints are resolved in a transpar-
72. A police officer or public complaints ent, timely, and fair manner. As I explain
prosecutor dissatisfied with the outcome below, resolving complaints without the
of the ocpcs decision should be able to need for a formal hearing and releasing
seek judicial review of the decision in the timely decisions will help to achieve this
Divisional Court. objective.

73. Confining review of the ocpcs


decision to judicial review before the 8.310 Resolutions without a hearing
Divisional Court will reduce litigation, 76. An efficient and effective public
save public resources, and streamline the complaints system should embrace the
disciplinary process by eliminating an resolution of appropriate cases without
intermediate level of appeal to the ocpc, the need for formal hearings.
196 Report of the Independent Police Oversight Review

77. Sometimes public complaints result minor misconduct, settlement may be


from misunderstandings or differences especially appropriate.
of opinion about how a police officer 81. Given the advanced stage of the pro-
behaved or should have behaved. In ceedings, the parties to the settlement
some of those cases, giving the parties negotiations will be the officer and the
an opportunity to discuss their concerns public complaints prosecutor.
and explain their actions allows them to
82. The prosecutor should, of course,
reach a mutually agreeable resolution.
consult with the complainant and give
78. As I explained in section 7.320, early due weight to their input when determin-
informal resolution of public complaints ing whether it is in the public interest to
at the oiprd should be encouraged. The settle a case. And the prosecutor should
laying of a disciplinary charge, however, take the complainants views into account
should not foreclose the possibility that in determining the appropriate resolution
a complaint may be resolved without and sanction. That said, the prosecutors
the need for a formal hearing before the discretion to settle should be absolute.
ocpc.
83. Settlement discussions should take
79. Rather, after a disciplinary charge place in confidence and without prej-
is laid, the public complaints prosecutor udice. If the parties so wish, a neutral
should review the investigative report. third-party mediator or facilitator could
Before proceeding to serve an officer facilitate the discussions.
with a notice of disciplinary hearing, the
prosecutor should consider whether a case
Recommendation 8.6
may be suitable for resolution without a
formal hearing.
After the oiprd lays a disciplinary
80. It may, for example, be in the pub- charge, the independent public com-
lic interest for the prosecutor to agree plaints prosecutor should have the
to settle a case and have an officer power to settle the complaint.
apologize to the complainant for their
conduct and undertake to participate 84. Absent the charges being withdrawn,
in certain professional development if settlement fails or is deemed not appro-
courses. In cases involving relatively priate, then the public complaints prose-
chapter 8 | Public Complaint Adjudications Public Complaint Adjudications 197

cutor should serve a notice of disciplinary 8.320 Release of decisions


hearing on the officer. 88. An effective, open, and transparent
85. From time to time, however, there complaints process requires making and
may be a case best resolved outside of a releasing timely decisions.
formal hearing that, for whatever reason, 89. At present, the ocpc has published
failed to be resolved earlier in the com- a series of service standard performance
plaints process. measures. All of its decisions released
86. If the ocpc is of the opinion that a on or after January 1, 2015, are made
matter may be suitably resolved through available to the public on thewebsite of
alternative dispute resolution, it should theCanadian Legal Information Insti-
have the power to direct the prosecutor tute. In addition, the oiprd posts the
and officer to engage in an alternative results of disciplinary hearings resulting
dispute resolution process. In making that from public complaints on its website.
determination, the ocpc should take into These practices should continue, with dis-
account the public interest, including the ciplinary hearing decisions being posted
gravity of the allegations and the value as soon as practicable.
of having them aired in a public hearing.
87. If alternative dispute resolution Recommendation 8.8
proves to be successful, the matter will
be resolved without the need for a hearing Disciplinary hearing decisions from
before the ocpc. If, however, alternative the ocpc should be released as soon
dispute resolution fails, the matter will as practicable and made available to
proceed to a hearing. the public.

Recommendation 8.7

Prior to holding a disciplinary hearing,


the ocpc should have the authority
to direct that the parties engage in
alternative dispute resolution.
CHAPTER 9

Coordinating Oversight and Removing


Inefficiencies

9.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

9.200 Coordination of investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201


9.210 Investigative priority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
9.220 Information sharing in siu incidents . . . . . . . . . . . . . . . . . . . . . 204
9.230 Section 11 investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
9.240 Cross-referrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
9.241 Referrals from the siu . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
9.242 Referrals from the oiprd . . . . . . . . . . . . . . . . . . . . . . . . . . 209

9.300 The ocpcs functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209


9.310 Adjudicative functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
9.320 Other functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
9.321 Municipal detention facilities . . . . . . . . . . . . . . . . . . . . . . . 212
9.322 Adequacy of police services and enforcement of police
service standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
9.323 Investigative powers and inquiries . . . . . . . . . . . . . . . . . . . . 214

199
200 Report of the Independent Police Oversight Review

9.324 Police services budgets and structures . . . . . . . . . . . . . . . . . 216


9.325 Appeals from employees who become disabled . . . . . . . . . . 217
9.326 First Nations Constables . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
9.327 Internal complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
9.328 Employment status hearings and bargaining units . . . . . . . 219
9.329 Pre-2009 complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
chapter 9 | Coordinating Oversight and Removing Inefficiencies 201

9.100 Introduction by the siu for criminality, by the chief of


1. Part of my mandate is to make rec- police for potential misconduct or ser-
ommendations about how to reduce vice and policy issues, and by the oiprd
overlap and inefficiencies between the if a public complaint is launched. The
siu, oiprd, and ocpc. Many of the rec- very same facts what happened and
ommendations in the preceding chapters why will be addressed by all the vari-
will help to achieve this objective. In this ous investigations from different angles.
chapter, I make further recommendations Moreover, the police force itself may be
in this regard. conducting its own investigation into an
incident that preceded the use of force,
2. This chapter is divided into two parts.
such as a robbery before the shooting.
3. The first part of the chapter addresses
7. The message clearly delivered during
overlap and existing inefficiencies by
my consultations was that confusion, inef-
making recommendations with respect
ficient overlap, and turf disputes often arise
to the coordination of investigations,
at the point of intersection in these cases.
including parallel investigations and
Which investigation takes priority? Can
cross-referrals.
one investigative body raise issues of con-
4. In the second part of the chapter, I cern with another? Can the various inves-
make a series of recommendations to tigations efficiently share information?
reduce overlap and inefficiencies by
8. The current legislation does not do
focusing the ocpc on its core adjudica-
enough to iron out these issues to pro-
tive mandate.
mote efficiency and coordination. In
this section, I make recommendations
9.200 Coordination of to resolve these inefficiencies.
investigations
5. Officers, police forces, and the civilian 9.210 Investigative priority
oversight bodies are subject to a web of 9. Criminal investigations should sit at
intersecting legislation that ascribes duties, the top of the investigative hierarchy. This
responsibilities, and liabilities to each. means that the siu investigation should
6. A single use of force incident, such take priority over an investigation by
as a police shooting, may be investigated the chief or the oiprd into the officers
202 Report of the Independent Police Oversight Review

conduct or service or policy issues. It also gator into an incident.359 This makes
means that criminal investigations by a sense, given the sius criminal focus and
police service should take priority over the strong public interest in having a
the chief s and oiprds investigations and police-involved death or serious injury
may run parallel to the siu investigation. thoroughly and promptly investigated.
10. Why should criminal investigations 15. During my consultations, however,
have priority? First, determining whether I heard complaints from some police
someone has engaged in alleged criminal services that sometimes their efforts to
conduct is the most important determi- conduct a pressing criminal investigation
nation to be made from a public safety were hampered by the siu. For exam-
and public interest perspective. ple, a suspect in a criminal investigation
11. Second, a criminal investigation, may have killed someone before they
unlike the chief s or oiprds investiga- were seriously injured by the police. I
tion, can lead to criminal charges. An was told that the siu sometimes keeps
officers or citizens constitutional rights evidence that has little relation to the siu
are engaged. They may be jailed. They are investigation, but is highly relevant to the
entitled to a fair and untainted investiga- ongoing police investigation.
tion into the facts of their case. 16. As a general matter, the siu investi-
12. Third, parallel investigations by the gation should continue to have priority
oiprd or chief may interfere with ongo- over all other investigations. That said,
ing siu investigations and prosecutions. the siu should develop a memorandum
Late disclosure of new evidence may of understanding with police services to
delay the criminal proceeding. address parallel criminal investigations.

13. Evidence, both real and witness, is 17. Currently, the siu has an opera-
best collected when it is fresh. Delays in tions policy on cooperation between the
accessing evidence can lead to questions siu and police services. That policy, last
about its purity. Concerns about the qual- revised in 2010, addresses circumstances
ity of evidence can undermine investigative where a police service has a legitimate
conclusions and criminal prosecutions. and continuing investigative interest in
an incident that is the subject of an siu
14. The legislation already recognizes
investigation.360
that the siu will be the lead investi-
chapter 9 | Coordinating Oversight and Removing Inefficiencies 203

Preserving the integrity of should be conducted, bearing in mind


both the siu investigation the sius investigative priority.

and the police services crim- 22. In practice, this means that the siu
should continue to have priority and
inal investigation is of vital
immediate access to the scene, any real
importance.
evidence, and all witnesses. Once the
siu has invoked its mandate, officers
18. That policy may serve as a useful
and investigators from other investiga-
springboard for discussions with police
tive bodies should generally stand down
services about how to deal with parallel
until directed by the siu.
criminal investigations.
23. When there is a parallel criminal
19. In British Columbia, for example, the
investigation, the memorandum of under-
Independent Investigations Office has a
standing should address the respective
memorandum of understanding with
roles and responsibilities of the siu and
police services respecting investigations,
the police service.
including a brief discussion of parallel
investigations.361 24. When there is no parallel crimi-
nal investigation, the chief and oiprd
20. A similar approach, with a memo-
should await further direction from the
randum of understanding setting out the
siu. In some cases, the siu may deter-
parties roles and expectations, should be
mine that the chief and oiprd cannot
adopted in Ontario.
begin their investigations until after the
21. Preserving the integrity of both the siu has concluded its criminal investiga-
siu investigation and the police ser- tion or the prosecution is terminated. In
vices criminal investigation is of vital other cases, the siu may determine fairly
importance. In cases where a suspect is early that criminal charges are unlikely
killed, the police force should generally and that parallel investigations by the
stand down so the siu can conduct its chief and oiprd may start prior to the
investigation. In cases where a suspect siu issuing its final report. Ultimately,
is seriously injured and the police forces the siu should determine the timing of
criminal investigation is still ongoing, the when the chief and oiprd begin their
memorandum of understanding should investigations.
spell out how the parallel investigations
204 Report of the Independent Police Oversight Review

25. Adopting this approach will stream- 27. When the siu launches an investi-
line and clarify the roles of the investiga- gation, it should notify the oiprd. If the
tive bodies at each stage of the process. It oiprd has received a public complaint
should be set out in the legislation and a about the same incident, it should advise
memorandum of understanding. the siu. As I suggested in section 9.210,
the oiprd should then stand down its
investigation until the siu directs that it
Recommendation 9.1
can begin its work.
The siu investigation should take 28. I recommend that, after an siu inves-
priority over all other investigations. tigation is complete, the siu deliver its
When there is a parallel criminal investigative file to the oiprd, on request,
investigation, a memorandum of and subject to any privacy and confiden-
understanding between the siu and tiality conditions. This way, if there is a
the police services should set out public complaint, the oiprd can begin its
the mechanics of the investigations. investigation by reviewing the siu file to
When there is a parallel civil investi- determine what, if any, further investiga-
gation, the investigation should stand tion is required. If other witnesses need
down at the discretion of the siu. to be interviewed or if more information
is required, the oiprd can supplement
the siu investigation through further
9.220 Information sharing in siu interviews and investigative steps.
incidents 29. Currently, the oiprd can summon
26. When there is a police-involved the sius investigative file,362 but I was
incident of death or serious injury, the told that this process can delay the oiprd
siu and oiprd need to adopt a coordi- investigation. The automatic provision of
nated approach to their investigations. the sius investigative file to the oiprd on
Though their lenses are different, the request will allow the oiprd a running
facts at issue in each investigation are start to its investigation.
frequently the same. An efficient way to
deal with the investigative overlap is to
share information.
chapter 9 | Coordinating Oversight and Removing Inefficiencies 205

Recommendation 9.2 and has the discretion to make it available


to the public.364
At the conclusion of the sius case,
34. My consultations confirm that a
the siu should deliver a copy of its
patchwork system for section 11 inves-
investigative file to the oiprd on
tigations exists across the province. Police
request, subject to any privacy and
services and boards are exercising varying
confidentiality conditions.
levels of diligence and transparency in
the completion of these reviews. This is
troubling.
9.230 Section 11 investigations
35. In most cases, the siu does not lay
30. Currently, the process of reviewing
criminal charges, but there remains a gen-
a case for conduct, policy, and service
uine public interest in a deep inquiry into
issues after the completion of the siu
remaining policy, service, and conduct
investigation falls on the chief of police
issues. In particular, the public deserves
of the relevant police service.
to know that someone in authority has
31. Section 11 of the regulation gov- considered how similar situations can
erning the conduct and duties of police be avoided in the future and whether
officers in siu investigations requires that changes need to be made.
the chief conduct an investigation into
36. Some members of the public sug-
any incident with respect to which the
gested that these section 11 investigations
siu has been notified.363
should not be conducted by the police
32. The purpose of the section 11 inves- services, but by an outside agency. I cer-
tigation is to review the policies and ser- tainly understand the merit of having an
vices of the police force and the conduct independent agency perform the section
of its officers. 11 investigation. I also note, however,
33. Municipal chiefs are required to the particular expertise and knowledge
report the findings of the investigation of police services in dealing with policy
to their police services board and the and service issues.
board may make the report public. The 37. Moreover, section 11 investigations,
opp Commissioner must prepare a report, when done properly, can trigger a pro-
206 Report of the Independent Police Oversight Review

cess of internal reckoning for the police Require further explanation and ampli-
service and lead to positive change. This fication of the report where, in the
process promotes accountability between oiprds discretion, more information
the service and the public. The benefits is required in the public interest; and
of that process should not be overlooked. Lay conduct charges where there are
38. Ultimately, I therefore recommend reasonable grounds to do so on the
that police services continue to conduct basis of the section 11 report and when
section 11 investigations, but that greater the chief of police has declined to do
transparency and accountability be built so.
into the process.
39. More specifically, the police services Recommendation 9.3
should conduct section 11 investigations
and make their report public, subject to Section 11 reports should be made
the same considerations for siu directors public, subject to the same consid-
reports set out in recommendation 6.9. erations for siu directors reports set
out in recommendation 6.9.
40. In addition, the police services should
provide their section 11 reports to the
oiprd. In the case of a municipal police
Recommendation 9.4
service, the report also should continue to
be provided to the police services board.
Police services should provide section
And in the case of the opp, the report
11 reports to the oiprd for review.
should be given to the Minister of Com-
The oiprd should have the discretion
munity Safety and Correctional Services.
to publicly comment on a section 11
41. After receipt of the police services report and the authority to direct
section 11 report, the oiprd should further investigation, require further
review it. The oiprd should have the dis- explanation or amplification, and lay
cretion to publicly comment on the report conduct charges.
and the authority to do the following:
Direct the chief to conduct further 42. Currently, section 11 investigations
investigation into any relevant matter must be commenced forthwith after the
in the report; siu is notified of an incident. And they
chapter 9 | Coordinating Oversight and Removing Inefficiencies 207

must be completed within thirty days a criminal charge, or where the criminal
after the siu advises the chief that the proceedings are concluded in those cases
siu has reported the results of its inves- where a charge is laid.
tigation to the Attorney General.365 47. That said, delaying the section 11
43. Throughout my consultations, many report should not delay necessary action
policing stakeholders raised concerns to address issues for the police force aris-
about these time frames and suggested ing in connection with the siu incident.
they should be amended. I have been told, for example, that some-
44. The requirement that section 11 times a policy issue may require urgent
investigations be commenced forthwith attention. It is not uncommon for chiefs
and reported within thirty days may be to proactively take immediate action, such
problematic because the siu investiga- as implementing a new policy, long before
tion takes precedence over the section the siu case or section 11 investigation
11 investigation. have concluded. The public interest is well
served by this practice.
45. The use of the word forthwith cre-
ates a level of uncertainty as to whether
the section 11 investigation should pro- Recommendation 9.5
ceed during the siu investigation. As I
The requirement to commence a
discussed in section 9.210, the siu inves-
section 11 investigation forthwith
tigation should occur first. The section 11
should be eliminated. The section 11
investigation should stand down unless
investigation and report should be
and until directed by the siu.
completed as soon as reasonably
46. A concurrent section 11 investigation practicable.
could interfere with the sius investiga-
tion. New evidence genereated through
the section 11 investigation could create
9.240 Cross-referrals
disclosure obligations if the sius inves-
tigation results in criminal charges. It is 48. As I explain below, the siu should
therefore generally preferable that the be allowed to refer conduct, policy, and
section 11 investigation be conducted service matters to the oiprd or a chief
only after the decision is made not to lay of police in appropriate cases.
208 Report of the Independent Police Oversight Review

49. If the oiprd receives a complaint the relevant police service to alert them
involving conduct that may fall within to non-criminal problems. In other cases,
the sius jurisdiction, the oiprd should they have noted the non-criminal issues
similarly be allowed to refer the case to in their report to the Attorney General.
the siu. 54. Under the current legislation, mat-
ters relating to the officers non-criminal
9.241 Referrals from the siu conduct and service or policy issues are
not strictly within the mandate of the siu.
50. siu investigations delve deeply into
Critics of the siu accuse it of mandate
what happened, why it happened, and
creep when it strays into such matters.
what motivated each party to act in the
There is no explicit authority for the siu
way they did. The focus of the investiga-
director to comment on any potential
tion is whether reasonable grounds exist
misconduct, policy, or service issue noted
to lay criminal charges.
during an investigation.
51. But siu investigators may uncover
55. I appreciate the focus of the siu
other matters which raise conduct, policy,
should remain firmly on determining
or service issues more properly the subject
whether there are reasonable grounds
of an investigation by the oiprd or the
to lay criminal charges. That said, I also
chief of police.
believe it is a waste of investigative and
52. For example, suppose the siu is intellectual resources to bar the siu
investigating an officers use of force from raising matters of concern with the
when arresting a suspect. The siu may oiprd or police services simply because
determine that the officers use of force they do not fall squarely within the sius
was justified, but that they did not fol- core function.
low an applicable policy. Moreover, it is
56. To that end, I recommend that if the
equally possible that the siu may deter-
siu identifies conduct issues during its
mine that an officer complied with the
investigation, it should have the discre-
policy, but that the policy is deficient
tion to refer the matter to the oiprd for
in some way.
independent screening and investigation.
53. Historically, siu directors have dealt
57. Further, if the siu uncovers potential
with this sort of situation in several ways.
policy or service issues, it should have
Often, they have written to the chief of
chapter 9 | Coordinating Oversight and Removing Inefficiencies 209

the discretion to notify the chief of its them directly to the siu for investigation.
concerns. 61. I recognize that it may be frustrating
58. Any of these cross-referrals should be for a complainant to be told to redirect
explicitly noted in the sius public report. their complaint to the siu. To minimize
59. The jurisdiction of the siu to note this frustration, the oiprd should assist
and comment on issues related to the the complainant by liaising directly with
conduct of officers as well as policy and the siu.
service matters should be made clear in 62. Consistent with my recommenda-
the legislation. Explicitly authorizing the tion in section 9.210 that the siu inves-
siu to refer these matters should elimi- tigation should have priority over the
nate complaints about the siu straying oiprd investigation, the oiprd should
beyond its mandate. then stand down its investigation until
directed otherwise by the siu.

Recommendation 9.6
Recommendation 9.7
The legislation should authorize the
siu to comment on and refer conduct The legislation should authorize the
matters to the oiprd and policy and oiprd to refer matters potentially
service matters to the chief of police falling within the sius jurisdiction to
of the relevant force. Any cross-refer- the siu.
ral should be noted in the sius public
report.

9.300 The ocpcs functions


63. Beyond coordinating investigations,
9.242 Referrals from the oiprd
inefficiencies in civilian police oversight
60. Occasionally, the oiprd may receive can be addressed by having the ocpc
a complaint where a person was seriously focus on adjudicative functions.
injured or died during a police interac-
64. As discussed in section 3.330, the
tion. The oiprd intake staff should be
ocpc presently has a multi-function
trained to spot complaints that may fall
statutory mandate. While the bulk of
under the sius jurisdiction and refer
the ocpcs activities currently involve
210 Report of the Independent Police Oversight Review

adjudicating disciplinary appeals, the duplicate or detract from other parts


ocpc also has the power to engage in a of the civilian oversight system;
number of other activities. These activi- conflict with the ocpcs core adjudica-
ties include conducting different kinds of tive function; or
first instance hearings relating to police
do not relate to any particular expertise
matters, investigating and inquiring into
of the ocpc.
police misconduct and matters of crime
and law enforcement, and performing 68. For example, the investigative func-
various regulatory functions relating to tions of the ocpc overlap to some extent
the provision of police services. with those of the oiprd and are incon-
sistent with the ocpcs core adjudica-
Most stakeholders viewed the tive function. Notably, like the oiprd,
ocpcs extensive mandate as the ocpc can conduct investigations
into police officer conduct. The overlap
being innefficient.
leads to confusion and the possibility of
parallel investigations and contradictory
65. The ocpcs current mandate is a
determinations.
product of its history.366 When the pre-
decessor to the ocpc was first created in 69. Furthermore, although multi-func-
the early 1960s, it was the first and only tion regulatory bodies are legally per-
civilian oversight agency in Ontario. As missible, having the ocpc carry out both
a result, it had wide-ranging authority. investigative and adjudicative functions
may lead to a reasonable apprehension
66. Today, however, there are two other
of bias.367
oversight agencies, the Ministry of Com-
munity Safety and Correctional Services, 70. In my view, the overlapping investi-
and a number of other bodies involved in gative authority between the ocpc and
police oversight. This has resulted in some the oiprd is unnecessary and should be
overlap and misalignment of functions. eliminated. Each oversight body should
be expert in its own area.
67. Most stakeholders viewed the ocpcs
extensive mandate as being inefficient. 71. The oiprd has both greater experi-
This inefficiency results largely from three ence and ability to conduct investigations
related concerns that some aspects of the than the ocpc.
ocpcs mandate
chapter 9 | Coordinating Oversight and Removing Inefficiencies 211

72. The ocpc, in contrast, is an expert The ocpcs current mandate


adjudicative body primarily structured to sometimes leads to confu-
adjudicate disciplinary matters.
sion, the potential for the
73. Going forward, the ocpc should
appearance of bias, and
shed its investigative and regulatory
decision-making outside the
powers to focus on its core adjudicative
functions. ocpcs core expertise.

78. Most importantly, as discussed in


9.310 Adjudicative functions section 8.220, the ocpc should be trans-
74. The ocpc is part of the Safety, formed into the tribunal of first instance
Licensing Appeals and Standards Tri- for disciplinary hearings resulting from
bunals Ontario, a cluster of adjudicative public complaints.
tribunals focused on public safety and 79. Members of the public and police
community standards.368 stakeholders almost universally agreed
75. However, despite having a predom- that the current system for adjudicating
inantly adjudicative focus centred on public complaints is ineffective. Having
police disciplinary matters, the ocpc also the chief of police select the hearing
engages in a number of non-adjudicative officer undermines public and police
activities. It also has some adjudicative confidence and trust in the disciplinary
responsibilities for which it has no par- process.
ticular expertise. 80. For the reasons explained in section
76. As a result, the ocpcs current man- 8.220, I believe that the ocpc should
date sometimes leads to confusion, the conduct all first instance disciplinary
potential for the appearance of bias, and hearings of public complaints. The right
decision-making outside the ocpcs core to appeal a first instance disciplinary
expertise. hearing decision to the ocpc should be
77. In my view, the ocpc will be more eliminated and replaced with a right of
effective and instill greater public con- judicial review to the Divisional Court
fidence in civilian police oversight if it (see recommendations 8.3 and 8.4).
instead focuses on an adjudicative role 81. Whether the ocpc should have
within its expertise. adjudicative authority over other
212 Report of the Independent Police Oversight Review

matters is best left for further study public complaints, this should be reflected
and determination by the Ministry of in legislation.
Community Safety and Correctional
Services and the Ministry of the
Recommendation 9.8
Attorney General. As an independent
tribunal with expertise in police disci- In addition to conducting all first
plinary matters, the ocpc may be well instance hearings from public com-
positioned to adjudicate certain matters plaints, the ocpc should adjudicate
beyond public complaints. any other proceeding as directed by
82. My recommendation that the ocpc the Ministry of Community Safety and
conduct first instance hearings from Correctional Services and the Ministry
public complaints should not foreclose of the Attorney General.
the tribunal from completing additional
adjudicative functions when appropriate.
83. The Ministry of the Attorney Gen- 9.320 Other functions
eral and the Ministry of Community 85. The ocpc is mandated to perform
Safety and Correctional Services should a number of non-adjudicative functions
determine what additional adjudica- and some adjudicative functions for
tive functions, if any, the ocpc should which it has no particular expertise. These
complete. The ocpc is accountable to functions should be removed from the
the Ministry of the Attorney General, ocpcs mandate so that it can focus on
which is responsible for administrative its core adjudicative role.
law and tribunal policy in the province.
And the Ministry of Community Safety
9.321 Municipal detention facilities
and Correctional Services is the ministry
responsible for policing services. It makes 86. Section 16.1 of the Police Services
sense that these two ministries determine Act provides that the ocpc has the
any future roles for the ocpc. authority to approve the establishment,
maintenance, and regulation of municipal
84. To the extent the ocpc is vested with
detention facilities.369
adjudicative functions beyond conduct-
ing first instance disciplinary hearings of 87. The rationale for having the ocpc
continue to perform this function is
chapter 9 | Coordinating Oversight and Removing Inefficiencies 213

unknown. It does not fall within any viding adequate and effective police
particular expertise of the ocpc. services or is not complying with the
88. These approvals are essentially an Police Services Act or its regulations, the
operational and regulatory function. ocpc may direct the police services
They should be performed by a body board to take the measures it con-
with experience in this area, namely the siders necessary. If the board fails to
Ministry of Community Safety and Cor- comply with the direction, the ocpc
rectional Services. may request the opp provide assistance
(subsections 9(2) and (3)); and
If a police services board or municipal
Recommendation 9.9
police force has flagrantly and repeat-
The ocpcs authority to approve the edly failed to comply with prescribed
establishment, maintenance, and reg- standards of police services, the ocpc
ulation of municipal detention facil- may
ities under section 16.1 of the Police
suspend or remove the chief of
Services Act should be eliminated. police or one or more members of
the board;371

disband the police force and require


9.322 Adequacy of police services and the opp to provide police services
enforcement of police service standards for the municipality; and/or
89. Sections 9, 23, and 24 of the Police
appoint an administrator to perform
Services Act confer various powers on the specified functions with respect to
ocpc if a municipality, police service, or police matters in the municipality
police services board fails to comply with for a specified period (section 23).372
policing standards or to provide adequate
90. The ocpc submitted that these reg-
and effective policing services.370 These
ulatory functions are more appropriately
powers include the following:
performed by the Ministry of Commu-
If a municipality is not providing police nity Safety and Correctional Services.
services, the ocpc may request the opp There is no need to insert an indepen-
provide assistance (subsection 9(1)); dent adjudicative agency, namely the
If a municipal police force is not pro- ocpc, between the ministry responsible
214 Report of the Independent Police Oversight Review

for policing and the police services and 9.323 Investigative powers and
boards. inquiries
91. The determination whether ade- 92. Section 25 of the Police Services
quate police services are being provided Act provides the ocpc with significant
and prescribed standards of police ser- powers of investigation into police mat-
vices are being met is fundamentally one ters.373 This authority allows the ocpc to
of policy and resource allocation. It also investigate, inquire into, and report on
implicates operational considerations. It the following:
does not relate to the expertise of the The conduct or the performance of
ocpc and could interfere with the tri- duties of a police officer, municipal
bunals priority to remain impartial in chief of police, auxiliary police offi-
its adjudicative role. cer, special constable, municipal law
enforcement officer, or police services
There is no need to insert an board member;
independent adjudicative
The performance of duties of an
agency, namely the ocpc, appointing official under the Inter-
between the ministry respon- provincial Policing Act, 2009;374
sible for policing and the police The administration of a municipal
services and boards. police force;
The manner in which police services
are provided for a municipality; and
Recommendation 9.10
The police needs of a municipality.
The ocpcs powers relating to the 93. Investigations and inquiries under
adequacy and standards of police section 25 may be initiated by the ocpc
services under sections 9, 23, and or at the request of the Independent
24 of the Police Services Act should be Police Review Director, the Minister
eliminated. of Community Safety and Correctional
Services, a municipal council, or a police
services board.375 Following the investi-
gation or inquiry, the ocpc is vested with
various remedial powers.376
chapter 9 | Coordinating Oversight and Removing Inefficiencies 215

94. This scheme is confusing and ineffi- 98. Moreover, the overlapping investi-
cient. Notably, even though the oiprd is gative roles of the ocpc and the oiprd
an investigative body and the ocpc has confuse the public and can lead to incon-
limited investigative capability, the oiprd sistent results.
cannot investigate certain officials who 99. Finally, a potential appearance
have law enforcement duties because they of bias is created by having the ocpc
are not police officers under the Police engage in investigative and adjudicative
Services Act. This includes auxiliary mem- functions.
bers of a police force and special consta-
100. As a result, the ocpcs powers under
bles. Instead, the oiprd has to request
sections 25 and 26 of the Police Services
that the ocpc conduct an investigation.
Act should be removed from its mandate.
95. Section 26 of the Police Services
101. As I explained in section 7.311,
Act further authorizes the ocpc, at the
the oiprd already has jurisdiction to
direction of the Lieutenant Governor
receive and investigate public complaints
in Council, to inquire into and report
concerning police officers. As set out in
on matters relating to crime and law
recommendation 7.6, the oiprds investi-
enforcement.377 According to the ocpc,
gative mandate should extend to include
this provision dates to the 1960s and was
auxiliary members of a police force and
likely introduced to address concerns at
special constables employed by a police
that time about organized crime and cor-
force. Consistent with the new public
ruption. It has not, however, been used
complaints regime, if a matter involving
in recent years.
one of these officers proceeds to a hearing,
96. The ocpcs powers under both sec- then the ocpc should conduct the first
tions 25 and 26 of the Police Services Act instance hearing.
do not fall within the ocpcs expertise
102. Some special constables, how-
and could be better performed in other
ever, are not employed by a police force.
manners.
Instead they work directly for another
97. The ocpc lacks the resources and entity, such as a university or govern-
expertise to best conduct these investi- ment agency. Oversight for these special
gations and inquiries. constables should be transferred to the
216 Report of the Independent Police Oversight Review

Ministry of Community Safety and Cor- Recommendation 9.11


rectional Services given its responsibility
over law enforcement and public safety The ocpcs investigative, inquiry, and

systems. reporting powers under sections 25


and 26 of the Police Services Act should
103. For police services board members
be eliminated.
and appointing officials under the Inter-
provincial Policing Act, 2009, alternative
oversight mechanisms also should be put
9.324 Police services budgets and
in place. More specifically, responsibil-
structures
ity for board members and appointing
officials should fall to the Ministry of 106. Sections 5(1)(6), 6, 8, 39, and 40 of
Community Safety and Correctional Ser- the Police Services Act confer additional
vices as the overseer of policing services authority on the ocpc with regard to
in the province. budgetary disputes and the structure of
police services.379 More specifically, these
104. Similarly, complaints concerning
powers include the following:
municipal law enforcement officers
should be dealt with through alternative Approving a municipal councils deci-
oversight mechanisms, namely with the sion to adopt a different method of
relevant municipal authority. providing police services (subsection
5(1)(6));
105. Finally, investigations, inquiries,
and reports on the administration of a Approving any agreement between two
municipal police force, the manner in or more municipalities to amalgamate
which police services are provided for a their police forces (subsection 6(3));
municipality, the police needs of a munic- Approving the creation of a new police
ipality, and matters relating to crime or force in a municipality not obligated
law enforcement, should be conducted by to provide police services (subsection
the Ministry of Community Safety and 8(1));
Correctional Services or an outside police
Resolving budgetary disputes between
service, or otherwise dealt with under the
police services boards and municipali-
Public Inquiries Act, 2009.378
ties (subsection 39(5)); and
chapter 9 | Coordinating Oversight and Removing Inefficiencies 217

Consenting to terminating a mem- 9.325 Appeals from employees who


ber of a police forces employment for become disabled
the purpose of abolishing the force or 109. Section 47 of the Police Services Act
reducing its size (subsection 40(1)). provides that the ocpc will hear appeals
107. These are essentially policy-making from employees of a police force who are
functions and may impede the ocpcs discharged or retired because they have
ability to appear impartial in its adjudica- become mentally or physically disabled
tive role. The Ministry of Community and cannot be accommodated without
Safety and Correctional Services has undue hardship.380
responsibility for policing in Ontario and 110. The rationale for assigning this
should be the body determining policy power to the ocpc is not clear. The ocpc,
issues in that regard. by its own admission, is not an expert in
108. Moreover, determinations about the human rights law.
structure and budgets of police forces are 111. Such appeals would be better heard
policy and operational matters in which by a specialized tribunal with expertise
the ocpc lacks specific expertise. They in the area, such as the Human Rights
are often political decisions. It is not Tribunal of Ontario.
appropriate for an adjudicative tribunal
like the ocpc to be interjected between
municipalities and local police services Recommendation 9.13

boards.
The ocpcs power to hear appeals
from employees of a police force
Recommendation 9.12 discharged or retired for becoming
disabled under section 47 of the Police
The ocpcs powers regarding bud-
Services Act should be eliminated.
getary disputes and the structure of
police services under sections 5(1)(6),
6, 8, 9, and 40 of the Police Services Act
9.326 First Nations Constables
should be eliminated.
112. Section 54 of the Police Services Act
requires that the ocpc approve the opp
Commissioners appointment of all First
218 Report of the Independent Police Oversight Review

Nations Constables. The ocpc also may complaints made by a chief of police or
suspend or terminate a First Nations police services board under sections 76
Constable on its own motion and is to and 77.382
receive notice if the opp Commissioner 116. This regulatory function is incon-
does so.381 sistent with the role of the ocpc as an
113. The appointment, suspension, adjudicative body.
and termination powers are essentially 117. Moreover, the ocpc noted that its
employment-related functions outside the efforts to exercise the function are ham-
expertise of the ocpc. The ocpc has indi- pered by the fact that there is no legisla-
cated that it is not clear what it is sup- tion requiring the police services notify
posed to do in approving appointments the ocpc about internal complaints
or how it would initiate a suspension or and provide it with information about
termination. such complaints. If the ocpc otherwise
114. To better focus on its adjudicative happens to find out about a complaint,
functions, the ocpcs power to oversee the perhaps through a media report, there is
appointment, suspension, and termina- no legislated ability to compel the pro-
tion of First Nations Constables should duction of information, and the limitation
be eliminated from its mandate. period already may have tolled.
118. Irrespective of the internal com-
Recommendation 9.14 plaints model, the ocpc should not
have the authority to direct internal
The ocpcs appointment, suspension, complaints. These are internal matters
and termination powers with respect inconsistent with the ocpcs renewed
to First Nations Constables under sec- focus on conducting first instance dis-
tion 54 of the Police Services Act should ciplinary hearings of public complaints.
be eliminated.

9.327 Internal complaints


115. Section 78 of the Police Services Act
authorizes the ocpc to direct internal
chapter 9 | Coordinating Oversight and Removing Inefficiencies 219

Recommendation 9.15 Recommendation 9.16

The ocpcs power to direct inter- The ocpcs powers to conduct


nal complaints under section 78 employment status hearings and
of the Police Services Act should be approve the creation of different bar-
eliminated. gaining units under sections 116 and
118 of the Police Services Act should be
eliminated.
9.328 Employment status hearings
and bargaining units
119. Part VIII of the Police Services Act 9.329 Pre-2009 complaints
concerns labour relations and confers two 123. The ocpc retains residual authority
additional employment-related powers on to review police decisions for complaints
the ocpc. relating to incidents which occurred
120. First, section 116 provides that the before 2009, when the oiprd began
ocpc will hear disputes as to whether a operations.385
person is a regular member of a police 124. The ocpc recommended that this
force or a senior officer.383 residual authority be foreclosed within
121. Second, section 118 requires that the a reasonable period, noting that these
ocpc approve the creation of different cat- complaints have reduced over time and
egories of members within a police force are unlikely to still be viable.
for the purpose of collective bargaining.384
122. Again, the ocpc should not be Recommendation 9.17
conducting employment status hearings
Requests to the ocpc for review of
and approving the creation of bargain-
decisions concerning complaints
ing units. These are not functions within
relating to incidents which occurred
the ocpcs expertise. They are specialized
before 2009 must be made to the
labour relations functions that could be
ocpc within the next two years,
performed better in another matter by
after which time they can no longer
another organization. They should be
be made.
exercised through arbitration or before
the Ontario Labour Relations Board.
CHAPTER 10

Indigenous Peoples and Police Oversight

10.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

10.200 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222


10.210 Indigenous peoples in Canada . . . . . . . . . . . . . . . . . . . . . . . . . . 222
10.220 Historic and current Indigenous-police relations . . . . . . . . . . . . 223
10.230 Jurisdiction of the police in relation to Indigenous peoples . . . 225
10.240 Jurisdiction of the oversight bodies in relation to
Indigenous peoples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
10.300 Experiences of Indigenous peoples with the oversight bodies . . . . 228

10.400 Indigenous cultural competency . . . . . . . . . . . . . . . . . . . . . . . . . . 231


10.410 The value of cultural competency . . . . . . . . . . . . . . . . . . . . . . . . 231
10.420 Current efforts to improve cultural competency . . . . . . . . . . . . 232
10.430 Enhancing cultural competency with Indigenous
communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

10.500 Oversight of First Nations policing . . . . . . . . . . . . . . . . . . . . . . . . 240

221
222 Report of the Independent Police Oversight Review

10.100 Introduction understanding my recommendations in


1. As part of my mandate, I was asked this chapter.
to make recommendations on how to 7. In this section, I provide background
enhance cultural competency in the siu, about Canadas Indigenous peoples and
oiprd, and ocpc in relation to their the policing of Indigenous peoples both
interactions with Indigenous peoples. historically and today.
2. My consultations with Indigenous
communities across the province have 10.210 Indigenous peoples in Canada
confirmed the need for greater dialogue
8. Who are the Indigenous peoples of
and respectful engagement between the
Canada? In this report, I use the term
oversight bodies and Indigenous peoples.
Indigenous peoples as a collective
3. In this chapter, I begin by providing name for First Nations, the Inuit, and
background about the history of Indig- the Mtis. Indigenous peoples also are
enous engagement with the police and sometimes referred to as Aboriginal
police oversight bodies. I discuss how peoples. The Constitution, for example,
Indigenous peoples were policed his- recognizes and affirms the rights of the
torically and how they are policed today. Aboriginal peoples of Canada, namely
4. I then provide an overview of some of the Indian, Inuit and Mtis peoples of
the concerns Indigenous peoples shared Canada.386
with me about the civilian police over- 9. Ontario is home to the largest num-
sight bodies. ber of people with Indigenous ancestry
5. Finally, I make recommendations in Canada. In 2011, 301,425 people in
to enhance the cultural competency of Ontario identified as Aboriginal, nearly
the oversight bodies and to strengthen one quarter of all Aboriginal peoples in
the oversight system for First Nations Canada.387 Indigenous peoples live across
policing. Ontario, in remote, rural, and urban areas,
with major urban Aboriginal populations
in Thunder Bay, Sudbury, Sault Ste.
10.200 Background Marie, Ottawa, and Toronto.388 There are
6. Understanding the context of Indig- over twenty-three thousand speakers of
enous-police relations is essential to Aboriginal languages in the province.389
chapter 10 | Indigenous Peoples and Police Oversight 223

10. First Nations or Indian peoples are people in Ontario identified as Mtis.397
one of three Aboriginal peoples identified 13. Together, First Nations, the Inuit,
in the Constitution. The term Indian and the Mtis make up the provinces
is sometimes used for legal reasons. In Indigenous peoples.
2011, 201,100 people identified as First
Nations in Ontario, including 125,560
status Indians, 37 percent of whom lived 10.220 Historic and current
on reserves.390 There are 207 First Nations Indigenous-police relations
reserves and settlements across the prov- 14. History is vital to understanding the
ince and 126 bands.391 Five of the twenty current relationship between Indigenous
largest bands in Canada are located in peoples and the police oversight bodies.
Ontario.392 One in four Ontario First The negative legacy of historic Indig-
Nations is a small, remote community, enous-police interactions has greatly
accessible only by air year-round or by affected Indigenous peoples trust and
ice road in the winter. 393 confidence in policing today and, by
11. The Inuit also are recognized as extension, police oversight.
Aboriginal peoples in the Constitution. 15. Historically, Canadas Indigenous
They are the Indigenous people of Arctic peoples generally have had negative
Canada, living primarily in Nunavut, the relationships with the police. There is a
Northwest Territories, Northern Que- history of distrust and abuse, rooted in
bec, and Northern Labrador. Today, there the fact that police have been used in
are an estimated 3,500 Inuit living in efforts to colonize and assimilate Indig-
Ontario, a marked increase from the less enous peoples.
than 100 in 1987.394 The majority of the 16. The historical role of police as agents
Inuit population live in the Ottawa area, of colonization responsible for controlling
making it the largest Inuit community Indigenous peoples must be acknowl-
outside of northern Canada.395 edged. Many Canadians do not realize, for
12. Finally, the Mtis are Aboriginal example, that the North-West Mounted
peoples recognized in the Constitution. Police (the forerunner of the rcmp) was
The Mtis are generally understood to established in 1873 primarily as a means
be people with mixed First Nations and to control Indigenous peoples in Canadas
European heritage.396 In 2011, 86,015 expanding western territories.398
224 Report of the Independent Police Oversight Review

There is a history of distrust 19. Indian Residential Schools, a net-


and abuse, rooted in the fact work of boarding schools operating across
Canada for over one hundred years, also
that police have been used in
systemically attempted to assimilate
efforts to colonize and assimi- Indigenous peoples by separating Indig-
late Indigenous peoples. enous children from their families. Now
closed, these schools caused intergen-
17. Police across the country have played erational trauma and forever fractured
a crucial role in enforcing government communal and familial ties that are still
laws and policies against Indigenous peo- healing today.401
ples, including those aimed at assimilat-
20. Similarly, the killing of qimmiit, or
ing Indigenous peoples and limiting their
Inuit sled dogs, has had an enduring and
rights. They have been responsible for
profound impact on the Inuit. Beginning
moving Indigenous peoples to reserves
in the 1950s, the rcmp and other author-
and keeping them there; apprehending
ities killed hundreds, and perhaps even
Indigenous children and sending them to
thousands, of qimmiit. The loss of qim-
Indian Residential Schools; and arresting
miit deeply affected Inuit culture, health,
Indigenous peoples attempting to exercise
and well-being. And it continues to be
their rights.399
a flash point for Inuit memories of the
18. Indigenous peoples have suffered sys- changes imposed on them by outsiders,
temic, institutional, and personal racism including police.402
for generations. For example, the Indian
21. Given the role of police in enforcing
Act, a piece of federal legislation enacted
laws and policies of control and assimila-
140 years ago, institutionalized Indian
tion against Indigenous peoples, it is not
reserves, made it virtually impossible for
surprising that the relationships between
First Nations to form political organiza-
Indigenous peoples and the police have
tions or hire lawyers, and took away First
been poor. These negative tensions have
Nations status from individuals who went
persisted, despite more recent efforts to
to university. While the legislation has
more actively engage and collaborate with
been amended over the years, the effects
Indigenous peoples on policing issues.403
of this legislated discrimination continue
to be felt today.400 22. Indeed, over the past several decades,
chapter 10 | Indigenous Peoples and Police Oversight 225

a number of reports, inquiries, and com- They told me about the polices contin-
missions have highlighted the troubled ued apprehension of Indigenous children,
relationship between Indigenous peoples exploitation of Indigenous women, and
and the police. They have generally been harassment of Indigenous men.
critical of the police, noting the polices
insensitivity to cultural considerations The systemic under- and
when working with Indigenous peoples, over-policing of Indigenous
lack of engagement with Indigenous peoples historically and today
communities, and alienation of Indig-
has caused a deep sense of
enous peoples from policing and the
justicesystem.404
mistrust and stigmatization
in Indigenous communities.
23. The systemic under- and over-po-
licing of Indigenous peoples historically
25. There is a widely held lack of trust
and today has caused a deep sense of mis-
and confidence in the police shared by
trust and stigmatization in Indigenous
Indigenous peoples. For many, the police
communities. The overrepresentation of
continue to be seen as colonial oppres-
Indigenous peoples in the criminal justice
sors. These experiences and perceptions
system, both as victims and offenders, has
influence Indigenous peoples interactions
further strained the already damaged rela-
with the police and, by extension, the
tionship between Indigenous peoples and
police oversight bodies.
the police. The treatment of Indigenous
peoples by the police has contributed to a
sense of distrust and estrangement from 10.230 Jurisdiction of the police in
the police and criminal justice system as relation to Indigenous peoples
a whole.405 26. The framework governing the polic-
24. During my consultations, for exam- ing of Indigenous peoples in Ontario
ple, a number of Indigenous peoples is complex. Indigenous peoples live in
expressed an honest and deeply troubling urban, rural, and remote areas. Some live
fear of the police. They shared experi- in First Nations communities, while oth-
ences where they felt they were arrested, ers do not. As a result, Indigenous peo-
assaulted, or insulted by the police for ples are subject to a myriad of different
no other reason than being Indigenous. policing arrangements. These generally
226 Report of the Independent Police Oversight Review

include: (1) First Nations police services; They work in a number of First Nations
(2) the opp; and (3) municipal police communities throughout the province.
services. They are standalone police services,
27. First, some First Nations have their operating independently of the opp
own First Nations police service. These and municipal police services.409 That
police services are the product of tripar- said, other police services may provide
tite agreements negotiated between First assistance to the self-administered First
Nations and the federal and provincial Nations police services, as they would to
governments as part of the First Nations any other police service.
Policing Program. 30. The self-administered First Nations
28. Under the First Nations Policing police services are governed by First
Program, the First Nations police ser- Nations or band councils, typically
vices are funded jointly by the federal and through a police commission. They
provincial governments. They are staffed operate pursuant to nine tripartite
by First Nations Constables. These First policing agreements between the First
Nations Constables are appointed by the Nations and the federal and provincial
opp Commissioner, with the approval governments.
of the ocpc and the First Nation com- 31. Also, some First Nations commu-
munitys police governing authority or nities have their own police services, but
Chief and Council.406 They generally they are not self-administered. Rather,
work in First Nations communities, but they are supported by the opp under the
are authorized to perform policing duties tripartite Ontario First Nations Policing
anywhere in the province.407 That said, Agreement. The opp administers funding
they are not police officers within the under the agreement and provides admin-
meaning of the Police Services Act.408 They istrative support to these First Nations
do not need to be Indigenous. In fact, communities.410
during my consultations I heard that the 32. In addition, the opp provides police
majority of these constables are not from services directly to some Indigenous peo-
any First Nations community. ples. Notably, one First Nation commu-
29. There are nine self-administered nity has signed a community tripartite
First Nations police services in Ontario. agreement with the federal and provincial
chapter 10 | Indigenous Peoples and Police Oversight 227

governments to have the opp provide not included in the definition of police
dedicated policing services to the com- forces in the Police Services Act.411
munity. In addition, several First Nations 36. As a result, the siu does not have
communities are served directly by the the jurisdiction to investigate a serious
opp. Moreover, the opp provides policing injury, death, or allegation of sexual
services in many rural areas and other assault caused by a First Nations Con-
parts of the province to all Ontarians, stable. This means that the siu cannot
including Indigenous peoples. usually conduct investigations in many
33. Finally, some Indigenous peoples First Nations communities.
receive police services directly from 37. That said, some First Nations com-
municipal police forces. This includes munities are served directly by police offi-
Indigenous peoples living in urban areas, cers working for the opp or a municipal
such as Toronto or Thunder Bay. It also police service. In addition, First Nations
includes those living in First Nations police services occasionally work in
communities that receive policing directly conjunction with opp and municipal
from a municipal police service. police officers. This means that some-
times incidents of serious injury, death,
10.240 Jurisdiction of the oversight or allegations of sexual assault in First
bodies in relation to Indigenous peoples Nations communities fall within the sius
jurisdiction.
34. Given the complex framework gov-
erning the policing of Indigenous peo- 38. For example, suppose a First
ples in Ontario, it is not surprising that Nations Constable in a First Nation
the jurisdiction of the oversight bodies community is present when an opp
in relation to Indigenous peoples is also officer shoots a person or assists the
complex. opp officer during an arrest. If there
is a serious injury, death, or allegation
35. Notably, the jurisdiction of the siu
of sexual assault, the sius jurisdiction
and oiprd is limited to police officers
to investigate would be invoked. The
and police forces. First Nations Con-
sius jurisdiction, however, would not
stables are not police officers within
extend to investigating or laying a charge
the meaning of the Police Services Act.
against the First Nations Constable.
And First Nations police services are
228 Report of the Independent Police Oversight Review

39. In addition, outside First Nations a municipal police service or the opp, the
communities, the siu has jurisdiction oiprds mandate would be invoked.
to conduct investigations into incidents 42. Finally, many of the ocpcs pow-
involving the opp or a municipal police ers and responsibilities are similarly
service where an Indigenous person is restricted to police officers and police
seriously injured, dies, or alleges sexual services. That said, as I noted in section
assault. For example, if an Indigenous 9.326, the ocpc must approve the opp
person in Ottawa is seriously injured at Commissioners appointment of all First
the hands of the municipal police, then Nations Constables. It also has the power
the siu would have jurisdiction to inves- to suspend or terminate a First Nations
tigate the incident. Constable and must receive notice if the
40. Similar rules apply with respect to opp Commissioner does so.412
the oiprd. Because First Nations Con-
stables are not police officers and First
Nations police services are not police
10.300 Experiences of
forces under the Police Services Act, the
Indigenous peoples with the
oiprd does not have jurisdiction to oversight bodies
receive complaints involving these officers 43. During my consultations, I engaged
and police services. It does, however, have with Indigenous peoples across the prov-
jurisdiction to receive complaints about ince. Their perceptions of the police and
police officers working for the opp and the police oversight bodies were mostly
municipal police forces from Indigenous negative. Many Indigenous peoples were
complainants. It also can receive service critical of the justice system in general,
and policy complaints involving the opp and the police and the police oversight
and municipal police services. bodies in particular.

41. For example, if an Indigenous per- 44. Several key themes emerged in the
son was mistreated by a First Nations submissions I received about Indigenous
Constable working for a First Nations peoples experiences with, and perceptions
police service, then the oiprd would not of, the police oversight bodies.
have jurisdiction over the complaint. In 45. First, almost everyone I heard from
contrast, if the Indigenous person was felt that the current police oversight
mistreated by a police officer working for
chapter 10 | Indigenous Peoples and Police Oversight 229

system is unknown to them and Indig- be satisfactory to their clients or legal


enous communities. With few excep- staff. This was despite the fact that clinic
tions, no one had heard of the ocpc. A lawyers vetted complaints to weed out
very small number of people were aware meritless ones and provided assistance
of the oiprd, but it was generally not with the actual complaint.
well known. More had heard of the siu 48. Fourth, some Indigenous peoples
through mainstream media or personal told me they feared retribution if they
experiences, but there was confusion filed a complaint with the oiprd. This
about what the siu does and how the concern was particularly acute for First
oversight bodies differ from one another. Nations communities served by the opp.
46. Second, many Indigenous peoples Members of these communities told me
told me that they felt targeted by law that if they raised their concerns about
enforcement and subjected to negative the opp, then their communities may
stereotypes by opp and municipal police suffer.
officers. I heard complaints about Indige-
nous peoples being charged with offences The oversight bodies have
and held in custody more than their chronically failed to engage
non-Indigenous counterparts. Despite with Indigenous communities.
the feelings of being singled out, how-
ever, very few Indigenous peoples knew 49. Fifth, the oversight bodies have
that they could file a complaint with the chronically failed to engage with Indig-
oiprd. enous communities. This is especially true
47. Third, there was a general sense that in rural and northern communities. It also
complaining to the oiprd about police extends to opp officers working in many
officer misconduct was pointless. There First Nations communities, who often
was no confidence that once a complaint rotate through postings for only a few
was filed, anything would be done to weeks at a time and are sometimes seen
address or rectify the situation. Indeed, I as not making an effort to engage with
was informed by one legal clinic working the community.
with Indigenous peoples that they have 50. Sixth, a number of people expressed
not had a single successful complaint concern about the overrepresentation
with the oiprd or a response that would
230 Report of the Independent Police Oversight Review

of Indigenous peoples in the criminal had no contact with them thereafter.


justice system and siu investigations in Equally troubling, some First Nations
particular. This concern is borne out in communities in the north described
the research. Notably, according to one having to wait days for siu investigators
2006 study, Indigenous peoples repre- to arrive on scene. In some cases, matters
sented 7.1 percent of all civilians involved were closed without talking to members
in siu investigations, despite compris- of the community and the leadership. In
ing only 1.7 percent of the provincial others, they were investigated without any
population.413 meaningful engagement with the local
51. Seventh, I heard from many people First Nations police service.
about the lack of diversity within the 54. Separate from the sius lack of
police oversight bodies, particularly with communication and engagement, I also
respect to Indigenous peoples. The staff was told about the siu failing to respect,
and leadership at the bodies were not include, or follow local Indigenous cul-
seen to reflect the provinces Indigenous tural customs and protocols. Several
communities. people felt that the siu does not have
52. Eighth, I was repeatedly told that the linguistic capability and cultural com-
the oversight bodies are inaccessible to petency to work with Indigenous peoples.
many Indigenous peoples. This applies, in 55. Similar concerns about cultural
particular, to Indigenous peoples living insensitivity and disrespect of Indige-
in rural and remote communities. It also nous peoples were raised in relation to
includes Indigenous peoples who do not the oiprd. For example, some Indige-
speak English or French. nous peoples told me that the oiprd and
53. Ninth, there was general consensus police services investigating complaints
that the oversight bodies lack cultural are prone to assess an Indigenous com-
sensitivity and often are disrespectful of plainants credibility on false assumptions
Indigenous peoples. For example, I heard and negative stereotypes about Indige-
of several instances where an siu investi- nous peoples.
gator arrived in a First Nations commu- 56. Finally, a number of people expressed
nity following an incident, spoke briefly concern about the lack of effective over-
with someone from the community, and sight mechanisms for First Nations
chapter 10 | Indigenous Peoples and Police Oversight 231

policing. The legislative gap created by 10.410 The value of cultural


excluding First Nations Constables from competency
the definition of police officer and First 59. In recent years, enhanced cultural
Nations police services from the defini- competency has been identified repeat-
tion of police force was seen as poten- edly as an important tool to renew the
tially problematic. This exclusion from the governments relationship with Indige-
legal framework governing most other nous peoples.
officers and forces in Ontario was seen
60. In 2013, for instance, Justice Iaco-
as discriminatory and thought to further
bucci recommended that government
marginalize First Nations communities.
officials working in the justice system
who have contact with First Nations
10.400 Indigenous cultural peoples undergo mandatory cultural
competency competency training.414
57. The oversight bodies need for cul-
tural competency when interacting with
Developing cultural com-
Indigenous peoples cannot be disputed. petency is crucial to address
The more difficult question is deter- systemic issues that have
mining how to best develop cultural hindered positive Indigenous
competency. engagement with the
58. In this section, I make recommenda- oversight bodies. Cultural
tions to enhance the cultural competency
competency is an essential skill
of the siu, oiprd, and ocpc when inter-
if the oversight bodies are to
acting with Indigenous peoples. I begin
by providing some background about provide culturally-appropriate
the value of developing cultural compe- services to Indigenous peoples.
tency. I then discuss the oversight bodies
current efforts to improve their cultural 61. Two years later, the Truth and Rec-
competency and engage with Indigenous onciliation Commission called on all
communities. Finally, I explain how levels of government to provide educa-
Indigenous cultural competency can be tion to public servants on the history of
enhanced at the oversight bodies. Indigenous peoples, the United Nations
232 Report of the Independent Police Oversight Review

Declaration on the Rights of Indigenous ships with First Nations communities.


Peoples, treaties and Indigenous rights, Seven investigators have been designated
Indigenous law, and Indigenous-Crown as First Nations Liaisons, including one
relations.415 investigator of First Nations background.
62. And in 2016, Premier Kathleen Whenever possible, a First Nations Liai-
Wynne announced that the provincial son leads or participates in an investiga-
government will implement cultural com- tion involving First Nations peoples or
petency training for all public servants on communities.
Indigenous issues.416 66. The First Nations Liaisons receive
63. Developing cultural competency ongoing training on Indigenous cultural
is crucial to address systemic issues competency. All siu investigators receive
that have hindered positive Indigenous training once per year. The siu also is
engagement with the oversight bodies. working to develop cultural competency
Cultural competency is an essential skill training for all staff.
if the oversight bodies are to provide cul- 67. Furthermore, the siu has partici-
turally-appropriate services to Indigenous pated recently in a number of outreach
peoples. events with urban Indigenous commu-
nities. These events have taken place in
the Toronto, Hamilton, and Ottawa areas,
10.420 Current efforts to improve
and are scheduled to take place in the
cultural competency
north later this year. The First Nations
64. I was informed by each of the over- Liaisons also have been involved in out-
sight bodies that they have made efforts reach events at First Nations.
to improve their cultural competency and
68. Second, the oiprd has offered three
engagement with Indigenous communi-
multi-day Indigenous cultural compe-
ties. In this section, I summarize those
tency sessions and several other sessions
efforts.
to staff over the past two years.
65. First, the siu has adopted a protocol
69. The oiprds outreach advisors have
for investigations involving First Nations
increased efforts to engage Indigenous
peoples and communities. In addition,
communities. For example, the oiprd is
it has developed a First Nations Liaison
currently conducting a systemic review
Program to help foster positive relation-
chapter 10 | Indigenous Peoples and Police Oversight 233

of Thunder Bay Police Service practices all the oversight bodies is encouraging.
for policing Indigenous peoples. As a As I explain below, however, further steps
result, it has undertaken outreach and should be taken to enhance the oversight
relationship-building with Indigenous bodies cultural competency.
communities in the Thunder Bay area.
70. Third, the ocpc is part of the Safety, 10.430 Enhancing cultural
Licensing Appeals and Standards Tri- competency with Indigenous
bunals Ontario, a cluster of administra- communities
tive tribunals which is making efforts to
73. To work respectfully with Indigenous
increase its members cultural competency
communities, the oversight bodies must
when interacting with Indigenous peo-
be culturally competent. Cultural com-
ples. In 2015, an Indigenous woman was
petency goes beyond simply training staff
appointed to the cluster and now acts as
about Indigenous issues to creating an
its Indigenous lead. Cross-appointed to
environment where Indigenous peoples
the ocpc, she is leading the process to
feel included and valued. In this section,
ensure that Indigenous issues and cul-
I make specific recommendations to
tural competency continue to be part of
enhance the Indigenous cultural com-
the orientation and ongoing professional
petency of the oversight bodies.
development for cluster members. Nota-
bly, the Indigenous lead recently provided
Cultural competency goes
training for cluster members as part of
beyond simply training staff
its professional development program.
about Indigenous issues to
71. In addition, the cluster has begun
work reviewing how its tribunals address
creating an environment
the needs of Indigenous peoples. It has where Indigenous peoples feel
sought to recruit Indigenous members included and valued.
and has sent staff and members to visit
Indigenous communities and participate 74. Broadly speaking, Indigenous cul-
in an Indigenous summit. tural competency will require developing
the knowledge, self-awareness, and skills
72. The development and delivery of
to engage respectfully and effectively with
these cultural competency programs by
Indigenous peoples.
234 Report of the Independent Police Oversight Review

75. By knowledge, I mean information social context as it pertains to the expe-


about Indigenous peoples, their histories, riences of Indigenous communities;
and cultures. Equally important, how- Provide an opportunity for staff and
ever, I also mean an understanding of the the oversight bodies to critically reflect
context and legacy of colonization and on their policies, practices, and work
Indigenous-police relations. processes when interacting with Indig-
76. By self-awareness, I mean examin- enous communities, and how these can
ing and challenging cultural assump- be enhanced to better reflect their new
tions and attitudes about Indigenous or enriched awareness of this unique,
peoples. This requires that people complex, and dynamic social context;
think about and question their own and
beliefs. It involves consideration of Encourage staff and the oversight bod-
how a persons perceptions of Indige- ies to improve their practice models
nous peoples may influence their inter- and tools by using knowledge and
actions when working with Indigenous perspectives enhanced by Indigenous
communities. values to be more responsive to the
77. Finally, by skills, I mean creating cultural context and unique needs of
and equipping people with the tools Indigenous communities.
and strategies to positively engage 79. The desired result of enhanced cul-
with Indigenous peoples. This includes tural competency will be a transformative
developing techniques to better integrate change for the oversight bodies and their
knowledge about Indigenous peoples staff. This includes staff at all levels of
and their experiences into the oversight the organizations and the organizations
bodies work to provide respectful and themselves.
culturally-appropriate services.
80. More specifically, transformative
78. Successful cultural competency at the change for individual staff members will
oversight bodies should, at a minimum, include a better understanding of Indige-
do the following: nous issues and the need for and value of
Enable staff and the oversight bodies dialogue, consultation, and engagement
to foster a deeper awareness and under- with Indigenous communities. Staff
standing of the historically-rooted will develop the tools to better interact
chapter 10 | Indigenous Peoples and Police Oversight 235

with and serve Indigenous peoples in a icies, programs, and operations to include
respectful and meaningful way. a more respectful, culturally-competent
81. The success of cultural competency approach. They must understand how
training will depend on a persons aware- assumptions and attitudes have informed
ness of their own biases and how they their decision-making to date and how a
influence interactions with others. This more culturally-competent approach can
awareness should be contrasted with be incorporated into their ongoing work.
learning about the diversity of Indigenous
cultural practices and nations worldviews. Cultural competency, however,
Self-awareness and learning about Indig- does not stop at the individual
enous peoples are both important parts of level. Rather, there must be
becoming a more culturally-competent transformative change at the
person. organizational level of the
82. Once this is done, a person should oversight bodies as well.
appreciate the concept of culture and
its role in shaping their experiences and 84. To enhance Indigenous cultural
the experiences of others. Next, efforts competency at the oversight bodies, all
should focus on developing skill sets to staff should receive further training on
successfully navigate situations where cultural competency, sensitivity, diversity,
cultural differences may be a factor. The inclusion, and accessibility. Working with
optimal result will be developing cultural Indigenous communities, the oversight
competency in an individuals ability to bodies should develop a mandatory and
understand, communicate with, and effec- ongoing cultural competency training
tively interact with people across cultures, program. The program should include a
including Indigenous peoples. mix of training tools aimed at developing
83. Cultural competency, however, does more culturally-competent staff and over-
not stop at the individual level. Rather, sight bodies. It should track and reward
there must be transformative change at staff outcomes and be a permanent part
the organizational level of the oversight of each oversight body.
bodies as well. This will require that the
oversight bodies critically assess their pol-
236 Report of the Independent Police Oversight Review

Recommendation 10.1 86. Any action to meaningfully develop


Indigenous cultural competency must
The oversight bodies should develop therefore include an open dialogue and
and deliver in partnership with partnerships with Ontarios Indigenous
Indigenous persons and communi- communities. Consideration must be
ties mandatory Indigenous cultural given to the fact that Ontarios Indig-
competency training for their staff. enous peoples are diverse. This includes
This training should be a permanent remote, rural, and urban experiences, cou-
and ongoing commitment within pled with First Nations, Inuit, and Mtis
each organization, and include the perspectives. Each community faces
following: different challenges and has different
(a) A substantial course about Cana- priorities. These depend on a number of
das Indigenous communities, with a factors, such as location, resources, popu-
focus on Ontarios Indigenous com- lation, and culture. Developing more cul-
munities, including, but not limited turally-competent police oversight must
to their history, culture, spirituality, recognize the diversity of the provinces
language, and current issues. This Indigenous peoples and better engage
training must be consistent, com- them in the process.
prehensive, and available to all 87. The oversight bodies should there-
staff, especially those coming into fore take steps to develop meaningful
contact or working with Indigenous and equitable partnerships with Ontarios
peoples; and Indigenous communities. They should,
(b) Key performance indicators to for example, engage with Indigenous
track outcomes and success. communities, Friendship Centres, and
other Indigenous organizations. These
85. Crucially, respectful relationships relationships are vital for building cultural
with Indigenous peoples cannot be competency and strong connections with
built at a time of crisis or incident. Sus- Indigenous communities. They also can
tained, proactive outreach and relation- serve as an important bridge for provid-
ship-building are key components of ing services to Indigenous communities,
cultural competency. particularly in the north or when working
in Indigenous languages.
chapter 10 | Indigenous Peoples and Police Oversight 237

88. In addition, the oversight bodies 90. Furthermore, cultural competency


should consider establishing Indigenous may be enhanced by taking steps to
advisory groups to provide ongoing advice increase Indigenous representation and
on cultural competency and outreach to promotion at each of the oversight bodies.
Indigenous communities. These advi- 91. In section 4.400, I discussed the need
sory groups would ideally include First for the oversight bodies to better reflect
Nations, Inuit, and Mtis representatives, Ontarios diversity. Given the mandate
including youth and Elders. and purpose of civilian oversight, it is
reasonable to expect that the civilian
The oversight bodies should oversight bodies represent the civilian
therefore take steps to develop population of Ontario.
meaningful and equitable 92. Throughout my consultations, how-
partnerships with Ontarios ever, I heard repeatedly that the over-
Indigenous communities. sight bodies do not include or reflect
the provinces Indigenous peoples. This
89. Partnerships with Indigenous com- contributed to a perception that the bod-
munities and organizations will provide ies do not meaningfully understand nor
an important mechanism for Indigenous embrace Indigenous cultures, realities,
peoples to provide guidance and feedback and experiences.
to the oversight bodies on their efforts to 93. To combat this perception, the over-
enhance their cultural competency and sight bodies should actively recruit and
improve their Indigenous outreach. promote Indigenous peoples at all levels
of staff. This means increasing the num-
Recommendation 10.2 ber of Indigenous staff working at the
oversight bodies. It also means mentoring
The oversight bodies should increase Indigenous staff and supporting them to
outreach to Indigenous communities reach positions of leadership.
and establish meaningful and equi-
94. Selection criteria for hiring and
table partnerships with Indigenous
promoting staff should reflect skills,
organizations.
knowledge, and experience in working
with Indigenous communities. Similarly,
238 Report of the Independent Police Oversight Review

managements performance evaluations enous communities when delivering


should include assessments of how well services;
they promote, support, and include diver- Acknowledging the traditional ter-
sity, inclusion, and accessibility in their ritory of Indigenous peoples when
areas of responsibility. possible and including that acknowl-
95. Creating a supportive and inclusive edgment in the work being done;
work environment that better reflects Ensuring that staff are aware of Indig-
Indigenous peoples and experiences is enous organizations and service pro-
a crucial step to improving Indigenous viders so they can meaningfully refer
cultural competency. Moreover, it is an people there when needed;
important tool for better serving Indig-
Providing alternative ways for Indig-
enous communities.
enous peoples to access services, such
as with the assistance of a Friendship
Recommendation 10.3 Centre or legal aid clinic;

There should be ongoing recruitment Providing program and service infor-


and development of Indigenous per- mation and communication materials
sons at the oversight bodies, includ- in Indigenous languages;
ing in senior and leadership positions. Offering interpretive services in Indige-
nous languages at no extra cost or delay;
96. Cultural competency is not limited Adopting protocols in consultation
to learning about Indigenous peoples and with Indigenous groups for working
recruiting Indigenous staff. It is about with Indigenous communities and
applying a culturally-competent approach peoples;
to service delivery.
Knowing, understanding, and respect-
97. The oversight bodies must ensure ing Indigenous cultural and spiritual
that they are providing culturally-com- protocols and religious requirements
petent services to Indigenous peoples. and beliefs; and
This may include, but is not limited to,
Meeting with Indigenous communities
the following:
to assess service delivery, effectiveness,
Acknowledging and including Indig- and accountability.
chapter 10 | Indigenous Peoples and Police Oversight 239

98. The value of developing the over- 101. The oversight bodies also should
sight bodies cultural competency ulti- evaluate their cultural competency pro-
mately turns on how they apply that new grams on an ongoing basis. This will
knowledge, self-awareness, and skill set require developing an assessment plan.
on the ground. This plan, developed in consultation with
Indigenous peoples, should incorporate
tools to identify both achievements and
Recommendation 10.4
areas for improvement.
The oversight bodies should imple- 102. Finally, adequate resources must be
ment a culturally-competent approach allocated to making the oversight bodies
to service delivery. more culturally competent with Indige-
nous peoples. Robust cultural training,
99. Finally, cultural competency must be outreach, and service delivery must be
seen as an ongoing priority for the over- treated as a priority. How resources are
sight bodies and the subject of continued allocated must be assessed to ensure that
assessment. This means supporting and cultural competency is being imple-
recognizing staff who adopt a cultural- mented effectively.
ly-competent approach. It also means
103. Simply put, cultural competency
constant evaluation to ensure that cultural
is an ongoing responsibility. It requires
competency programs are meeting their
participation, support, and promotion by
goals. And it requires allocating proper
individuals and the oversight bodies as a
resources to cultural competency efforts
whole. To be successful, its implementa-
to support their success.
tion and effectiveness must be evaluated
100. More specifically, staff should feel on a continuing basis.
supported and encouraged to implement
policies and provide services in ways to
Recommendation 10.5
ensure greater equity and inclusiveness
for Indigenous peoples. This includes The oversight bodies should develop
providing staff with the tools to better an ongoing audit process to assess
serve Indigenous peoples. It also means the implementation and effectiveness
recognizing staff successes and including of cultural competency and institu-
them in performance assessments. tional change.
240 Report of the Independent Police Oversight Review

10.500 Oversight of First challenging environments. I was told that


Nations policing they have been chronically underfunded
104. Effective civilian oversight of and understaffed. I saw firsthand that
policing in First Nations communities is they often lack community infrastruc-
needed. As I explained in section 10.230, ture, such as proper buildings, cells, and
however, First Nations Constables are support services. And I was informed that
not police officers within the meaning their hard work has not always earned
of the Police Services Act. Similarly, First them much respect or appreciation from
Nations police services are not police other policing colleagues.
forces. As a result, the oversight pro-
cesses largely exclude First Nations police
The desire for appropriate
and communities.417 civilian oversight of First
105. The gaps in the legislative foun- Nations policing is clear.
dation governing First Nations policing
are problematic. First Nations policing 107. The desire for appropriate civilian
is not set up, funded, or legislated in oversight of First Nations policing is
the same way as other policing in this clear. For example, a recent report from
province. Rather, pursuant to the tri- the federal governments engagement
partite agreements discussed in section sessions on policing Indigenous com-
10.230, First Nations police services munities noted a demand for effective
are treated as a funded program, not and legally binding procedures for civil-
an essential service. Furthermore, First ian oversight.418 Similarly, a report from
Nations Constables are peace officers, the Office of the Provincial Advocate
but not police officers. They thus do for Children and Youth recommended
not fall within the jurisdiction of the that the oiprds powers be expanded
siu and oiprd. to include First Nations police services
and the policing of Indigenous people
106. During my consultations, I heard
so individuals on-reserve have access to
repeatedly about the value of First
an independent complaint and appeal
Nations policing in First Nations com-
mechanism.419 And First Nations policing
munities. First Nations Constables have
stakeholders told me during my consulta-
continually served in often isolating and
tions that they support civilian oversight.
chapter 10 | Indigenous Peoples and Police Oversight 241

108. The exclusion of First Nations 110. Ultimately, individual First Nations
policing from civilian oversight results should decide whether they wish to opt
in many First Nations communities in or not. In other words, the legislation
not having access to the same oversight should be permissive, not mandatory.
mechanisms as other Ontarians. This Chief Justice LeSage made a similar rec-
gap further exacerbates the distinction ommendation in 2005, suggesting that
between policing for First Nations and the law not preclude First Nations that
policing for all other Ontarians. wish to have their police service fall under
the provincial complaints system from
The exclusion of First Nations being able to do so.420 I agree and believe
policing from civilian over- the recommendation should extend to all
sight results in many First oversight bodies.

Nations communities not 111. Of course, if the oversight bodies


assume jurisdiction over First Nations
having access to the same
policing, the need to enhance their
oversight mechanisms as other
Indigenous cultural competency will be
Ontarians. This gap further especially crucial.
exacerbates the distinction
between policing for First Recommendation 10.6
Nations and policing for all
other Ontarians. Consideration should be given to
expanding the mandates of the over-

109. I therefore recommend that con- sight bodies to include First Nations

sideration be given to bringing First policing, subject to the opting in of

Nations policing within the provinces individual First Nations.

civilian police oversight mechanisms.


This will require collaboration with First
Nations and the federal and provincial
governments.
CHAPTER 11

Demographic Data Collection

11.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

11.200 The case for demographic data collection . . . . . . . . . . . . . . . . . . . . 244


11.210 Benefits of data collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
11.220 Concerns about data collection . . . . . . . . . . . . . . . . . . . . . . . . . 247
11.230 Practices in other jurisdictions and the public sector . . . . . . . . 248
11.300 Advisory committee on best practices . . . . . . . . . . . . . . . . . . . . . . 249

243
244 Report of the Independent Police Oversight Review

11.100 Introduction 7. On this issue, the police oversight


1. Should the police oversight bodies in system lags behind the United States,
Ontario collect demographic data? the United Kingdom, and other public
sectors in Ontario.
2. In my view, they should. And the
demographic data they collect should 8. Data collection raises a number of
include gender, age, race, religion, eth- complicated issues. Because of that, I also
nicity, mental health status, disability, and recommend creating an advisory commit-
Indigenous status. tee to work with the oversight bodies to
set up best practices. This includes prac-
3. Data collection offers many benefits.
tices relating to the collection, manage-
It supports evidence-based public policy
ment, analysis, and disclosure of the data.
and decision-making, promotes account-
ability and transparency, and, if used 9. Stakeholders such as community
properly, may build public confidence in representatives, advocacy groups, law
policing and police oversight. enforcement representatives, and academ-
ics could work with the Ontario Human
4. Currently, with one minor exception,
Rights Commission, the Anti-Racism
the siu, oiprd, and ocpc do not system-
Directorate, and the Information and
atically collect demographic data on the
Privacy Commissioner to design a demo-
race, religion, age, mental health status,
graphic data regime.
disability, or Indigenous status of com-
plainants and alleged victims.
5. That minor exception is the sius col- 11.200 The case for demographic
lection of gender data, which information data collection
it shares in annual reports. 10. I will touch briefly here on the ben-
6. Apart from this very limited collec- efits of data collection, concerns about
tion of data, the police oversight system it, and the use of it in other jurisdictions
in Ontario has no data infrastructure in and public sectors.
place to understand the make-up of com-
plainants and alleged victims of police 11.210 Benefits of data collection
conduct.
11. The wisdom and value of collecting
demographic data was once controversial
chapter 11 | Demographic Data Collection 245

in academic and policy circles. Some were we assess whether programs or policies
concerned about the potential invasion of are effective in addressing these issues?
privacy. Others were concerned about the
risk for the misuse of statistics to rein- Academics and policy makers
force discriminatory beliefs and practices. are now nearly unanimous in
12. Academics and policy makers are their support for the collection
now nearly unanimous in their support of demographic data.
for the collection of demographic data.
13. The broad consensus is that more and 18. Data collection and evidence-based
better data leads to better policy deci- research is the only way to confront these
sion-making. This was clearly reflected in issues with honesty and objectivity.421
both my public and targeted stakeholder 19. Second, the police and police over-
meetings. sight bodies need data and the scientific
14. I will discuss three main benefits evaluation of facts to develop policy, bet-
to data collection that became obvi- ter manage programs, and evaluate the
ous during my consultations. They are progress of strategies put in place.
interrelated. 20. Governments and police chiefs agree
15. First, without data and research, the that research data serves as a base for
conversation about police violence and problem-solving, planning, and commu-
racial profiling is dominated by allega- nity dialogues.422
tions and anecdotes. People are more 21. For example, Canadian police
likely to pay attention to research. services have introduced anti-racism
16. For systemic issues, groups need initiatives and have sought to improve
research to support their claims, and relationships with racialized communities.
the police and policy-makers need offi- 22. A police chief told me that his police
cial data to identify problem-areas and service greatly appreciates the potential
develop programs. value in using statistical analysis. They use
17. How can we fully understand what it to measure the effectiveness of various
the relationship is between race and bias-free policing and anti-discrimination
police violence without data? How can initiatives. He said statistical analysis also
we identify any possible causes? How can would help the police service determine
246 Report of the Independent Police Oversight Review

whether those initiatives need to be 26. Third, data collection is an important


improved. step toward greater accountability and
transparency.
During my consultations, the 27. During my consultations, the mes-
message I received was clear: sage I received was clear: the public and
the public and police oversight police oversight bodies need to under-
bodies need to understand how stand how the police are functioning, how
the use of force is being deployed, and
the police are functioning,
what the impact is on the community.
how the use of force is being
28. The current lack of transparency is
deployed, and what the impact
problematic.
is on the community.
29. Instead of the oversight bodies pro-
23. Information also can help police viding such data themselves, it is left to
services identify patterns that otherwise journalists and academics to dig it up.
would go unnoticed. 30. When the uncovering of crucial
24. During Ottawas Traffic Stop Race facts is left to those outside parties, the
Data Collection Project, for example, oversight bodies do not benefit from the
many were surprised to see evidence goodwill and public trust that normally
of a disproportionately high incidence accompanies an act of transparency.
of traffic stops for members of Middle Instead, the oversight bodies, and the
Eastern communities. police by association, appear unwilling
to expose themselves.
25. Similarly, police oversight bod-
ies need demographic data to assess if 31. The data collection I am recom-
their processes are functioning prop- mending allows the oversight bodies and
erly. For example, the oiprd could use the public to check on what the police
demographic data to evaluate whether and police oversight bodies are doing. In
certain segments of the population are so doing, data collection goes to a core
not engaging in its process. If so, it could purpose of civilian police oversight: pro-
then develop strategies to address such a moting public confidence in policing.
problem accordingly.
chapter 11 | Demographic Data Collection 247

11.220 Concerns about data collection still effective and violent crime rates have
32. Not all stakeholders supported data generally been falling.
collection. 39. I note that similar concerns were
33. One concern that was raised was raised when use of force regulations
cost. To me, this concern is short-sighted. were implemented in the United States.
Research, however, suggests that the
34. There may be initial start-up costs for
number of police officers seriously injured
things such as developing standardized
in the line of duty actually declined, as
software. But otherwise data collection
did the number of civilians injured or
should be relatively inexpensive. For
killed.423
example, with the oiprd it may be as
simple as including more categories on 40. Others were concerned that race-
the standard complaint form. based data collection would reinforce
socially constructed ideas of race. In turn,
35. I also note that the cost of making
they said, collecting such data itself pro-
use of collected data has not deterred
moted racism.
other jurisdictions from doing so, even
ones that employ a more extensive system 41. But refusing to collect statistics
than what I am proposing. means less insight into the relationship
between race and policing. In its report
36. Some police stakeholders have said
The Importance of Collecting Data
that it may undermine police and public
and Doing Social Scientific Research
safety if data is collected because officers
on Race, the American Sociological
may become hesitant to police effectively
Association strongly rejected this per-
and, in some cases, fail to use force when
spective and encouraged the collection
necessary.
and analysis of racial data:
37. This to me is speculative and uncon-
Sociological scholarship on race
vincing. There does not appear to be any
provides scientific evidence in the
evidence to support this claim.
current scientific and civic debate over
38. To the contrary, in the United States the social consequences of the exist-
and the United Kingdom, where data has ing categorizations and perceptions
been collected for many years, police are of race; allows scholars to document
248 Report of the Independent Police Oversight Review

how race shapes social ranking, access 11.230 Practices in other


to resources, and life experiences; and jurisdictions and the public sector
advances understanding of this import- 45. Ontarios police oversight bodies
ant dimension of social life, which in have fallen behind the practices of other
turn advances social justice. Refus- countries, countries that have been doing
ing to acknowledge the fact of racial more widespread demographic data col-
classification, feelings and actions, and lection than what I am recommending.
refusing to measure their consequences
46. Those countries have recognized the
will not eliminate racial inequalities. At
significant value of demographic data
best, it will preserve the status quo...
collection and benefitted from it in turn.
The continuation of the collection and
scholarly analysis of racial data serves 47. For example, the United States and
both science and the public interest.424 United Kingdom have recognized the
benefits of demographic data collection
42. Finally, I accept that some are
for many years.
worried about the frailties of statistical
collection and analysis. Misleading or 48. In the United States, almost all police
inaccurate conclusions could be drawn forces collect data. A researcher told me
from data. the concept is beyond debate.

43. Involving researchers in the design 49. American federal and state author-
process and in the advisory committee ities collect extensive demographic data
that I discuss in section 11.300 will help through a variety of different strategies.
collect information in a way most con- Police stops are one example for which,
ducive to independent, expert scientific by 2005, an estimated four thousand
analysis. Their involvement adds legitimacy agencies were collecting racial and ethnic
and objectivity to the process. I agree with information.425
the many stakeholders who emphasized 50. Examples of specific programs put
that independent analysis is crucial. in place by cities after beginning data
44. In all, though I respect the concerns collection and analysis are encouraging.
raised by some stakeholders, the benefits Phoenix, for example, found that their
of data collection are too strong to be biggest issue was the use of force. The
ignored. response was to create a citizens forum,
chapter 11 | Demographic Data Collection 249

develop a model policy for the entire state, Board, and the University of Toronto
institute training on bias-based policing, have made announcements that they also
and create advisory groups with racialized will begin collecting race-based data.427
communities that meet monthly.426 56. In the health sector, there are many
instances of race-data collection and
In short, for policing and other ethno-cultural data collection. Such data
public sectors, demographic then contributes to research on the social
data collection is becoming the determinants of health.
norm, not the exception. 57. In short, for policing and other pub-
lic sectors, demographic data collection
51. I also learned from various research- is becoming the norm, not the exception.
ers that the United Kingdom has strong
national standards on data collection, pre-
Recommendation 11.1
venting the misuse of data, interpreting
data, and the release of data to the public. Ontarios police oversight bodies
52. There, official statistics are produced should collect demographic data on
and published that deal with race and matters falling within their respec-
other demographic information in the tive mandates. Relevant demographic
employment, education, health, and crim- data should include gender, age, race,
inal justice spheres. religion, ethnicity, mental health sta-
tus, disability, and Indigenous status.
53. Other public sectors have embraced
the value of data in shaping policy and
improving public confidence.
54. In Ontario, public sector health 11.300 Advisory committee on
and education agencies collect demo- best practices
graphic data on their clients, patients, 58. To achieve a well-functioning data
and students. collection system, there remain many
55. In the education sector, the Toronto questions that will need to be answered.
District School Board collects race data in For example, who owns the data? Who
student profile surveys. The Peel District holds or stores it? Who can access it?
School Board, Durham District School Who studies it? How is it to be shared?
250 Report of the Independent Police Oversight Review

59. During my consultations I was pre- An advisory committee also serves to


sented with different views on collection incorporate diverse opinions and helps
methods, management, analysis, and build relationships.
disclosure. 66. The objective is to develop a data col-
60. These questions require more atten- lection process that will become a routine
tion than I am able to give them within institutional practice. Decisions will need
the context of this Review. Nor does to be made about design, management,
answering any of them other than ones and technology, among other issues.
about data collection fit within the terms 67. Some issues should be straightfor-
of my mandate. ward though.
61. This is in part why I recommend 68. For example, experts generally agree
forming an advisory committee to estab- that demographic details on gender, age,
lish further guidelines on data collection. race, religion, ethnicity, mental health
62. An advisory committee can bring status, disability, and Indigenous status
together stakeholders with different should be collected.
perspectives and representing different 69. There also is generally consensus that
interests. self-identification is the best method
63. Representatives from civil-rights to record race and other demographic
organizations, community groups, mem- indicators.
bers of law enforcement, and academics 70. In addition, when information is
should be involved. The Human Rights requested from individuals, including
Commission, the Anti-Racism Direc- mental health information, they should
torate, and the Information and Privacy be told the following:
Commissioner also could offer valuable
That the data is being collected on a
expertise.
voluntary basis;
64. Members of the advisory commit-
Why the data is being collected;
tee could then cooperate in designing
the parameters of demographic data How the data will be used;
collection. The benefits of volunteering data; and
65. Involving all stakeholders promotes The privacy and confidentiality steps
buy-in, accountability, and legitimacy.
chapter 11 | Demographic Data Collection 251

that will be taken to protect their from the United States and the United
information. Kingdom may further guide us. In the
71. Moreover, any data collection should end, however, our own process must
be minimally intrusive to protect the pri- incorporate local context.
vacy and dignity of the individual. For 73. An advisory committee would be
example, this would involve asking a yes best suited to do this.
or no question about whether someone
has a mental health disability, rather
Recommendation 11.2
than asking for a specific diagnosis or
symptoms. An advisory committee should be
72. When deciding who will own the established to develop best practices
data, how it will be stored, and how it is on the collection, management, and
to be disclosed to the public, examples analysis of relevant demographic
data.
CHAPTER 12

Other Forms of Police Oversight

12.100 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

12.200 Police services boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

12.300 College of Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

253
254 Report of the Independent Police Oversight Review

12.100 Introduction 12.200 Police services boards


1. My Review has focused on improv- 5. The first level of oversight for policing
ing the transparency, accountability, and is the police services board. As I discussed
effectiveness of the siu, oiprd, and in section 3.270, every municipality that
ocpc. These bodies, however, are part of has a police service, or is policed by the
the broader police oversight system. opp under contract, must have a police
2. During my consultations, I heard services board.
about a number of police oversight issues 6. Boards set objectives and priorities for
that did not relate directly to the three police services, and provide independent
bodies or fall squarely within the terms of civilian governance. They work together
my mandate. Given the oversight bodies with the oversight bodies to hold police
role within the broader system, I wish to accountable within the communities they
comment on two. serve.
3. First, police services boards are a vital 7. During my consultations, I met with
component of the civilian police oversight the Ontario Association of Police Ser-
system in Ontario. As I explain below, vices Boards, individual police services
the system would be strengthened by boards, and other policing stakeholders.
establishing consistent selection criteria While these discussions focused on the
for board members and providing them three police oversight bodies, I also heard
with mandatory training on their roles some concerns about the police services
and responsibilities. boards. These concerns focused mainly
4. Second, there is merit to considering on the selection and training of board
the establishment of a professional reg- members.
ulatory body for police officers, namely 8. Municipal police services boards con-
a College of Policing. The further pro- sist of either three, five, or seven mem-
fessionalization of police officer training, bers, depending on municipality size.
recruitment, and standards will help gar- They always include the mayor of the
ner public trust and respect for policing. municipality (or another council member
appointed by the council) and a munici-
pal appointee who is neither a municipal
chapter 12 | Other Forms of Police Oversight 255

councillor nor a municipal employee. The Recommendation 12.1


remainder of the board is filled by:
The Ministry of Community Safety
One provincial appointee for three-
and Correctional Services should
member boards;
establish selection criteria for police
Two provincial appointees and one services board appointees.
municipal councillor for five-member
boards; or 11. While selecting qualified members
Three provincial appointees and two will contribute to making the police ser-
municipal councillors for seven- vices boards effective, training is also cru-
member boards.428 cial to enhancing the capacity of boards.

9. The legislation does not currently set 12. Currently, the legislation provides
out the selection criteria for appointed that the Minister of Community Safety
board members. I was told that this and Correctional Services may set train-
sometimes leads to gaps in addressing ing requirements for board members.429
the boards governance needs. Throughout my consultations, however,
I discovered that training practices vary
10. To remedy this issue, I recommend
widely.
that the Ministry of Community Safety
and Correctional Services establish
Without the appropriate
selection criteria through legislation or
regulation for board appointees. These skills, knowledge, and
selection criteria should not be overly understanding, they may
prescriptive, to ensure that individuals lack confidence to govern
from diverse professional and personal independently from the police
backgrounds are attracted to apply. But
service.
they should take into consideration core
competencies of board members, such as
13. First, in some cases, new board mem-
strategic planning and analysis, critical
bers depend on the local police service
thinking, performance evaluation, and
that they govern to provide training. In
financial literacy. Efforts also should be
my view, there is a natural conflict of
made to recruit applicants who reflect the
interest when an organization subject
diversity of the communities they serve.
256 Report of the Independent Police Oversight Review

to oversight is responsible for training institutions. However, there is no man-


and mentoring its overseers. Effective datory province-wide training to build
oversight requires confident, independent, governance capacity of board members.
and knowledgeable police services boards. 17. To address this gap, the Ministry of
14. Second, training of police services Community Safety and Correctional Ser-
board members is not currently manda- vices should develop a mandatory training
tory.430 This may result in board mem- program and curriculum for police ser-
bers not receiving any form of training. vices board members. This training should
These members may not have a full be developed in partnership with the
understanding of their roles. And with- Ontario Association of Police Services
out the appropriate skills, knowledge, Boards and post-secondary institutions
and understanding, they may lack con- with expertise in the areas of public sector
fidence to govern independently from the and not-for-profit governance. Training
policeservice. should be provided independently of the
15. I was informed that the Ministry of local police service.
Community Safety and Correctional Ser- 18. Board members should receive
vices provides training to police services mandatory core training soon after
boards on request. This training, however, appointment and ongoing training
is focused largely on boards legislative throughout their tenures to refresh and
and regulatory responsibilities. It is not update knowledge and skills. Training
compulsory and does not cover all the should apply adult education principles.
skills needed to be an effective board It should include a range of topics, such
member. as an overview of the legislation, police
16. I also was told that the Ontario governance essentials, strategic planning,
Association of Police Services Boards hiring, performance management, per-
provides governance training online formance measurement, financial literacy,
and through its conferences, but is not stakeholder relations and community
funded to deliver ongoing, province-wide engagement, risk management, and crisis
training. Some individual police services management.
boards have organized training for mem- 19. Ensuring that every police services
bers, in partnership with post-secondary board member receives such training will
chapter 12 | Other Forms of Police Oversight 257

raise the capacity of boards to govern enhancing policing standards and service.
independently and hold police account- 22. For many people, policing is a calling
able within the communities they serve. in the same way many doctors are called
to medicine and teachers are called to
Recommendation 12.2 teaching. Policing should be seen as a
distinguished profession.
The Ministry of Community Safety
23. The profession of policing is chang-
and Correctional Services should
ing, as is the face of policing. Crimes are
develop mandatory training for police
becoming increasingly technical and
services board members. This train-
sophisticated, particularly in the area
ing should be developed in partner-
of cyber-crime.431 More women have
ship with the Ontario Association of
entered the profession, as have more
Police Services Boards and post-sec-
members of marginalized groups.432
ondary institutions with expertise in
the areas of public sector and not-for- 24. Officers today are attaining higher
profit governance. levels of education. By 1996, two thirds
of the Canadian police labour force had
some post-secondary education.433 There
have been some reports that police offi-
12.300 College of Policing
cers with higher levels of education are
20. Serious consideration should be perceived to act more professionally when
given to establishing a College of Polic- conducting their duties, and subject to
ing in Ontario as the professional body fewer complaints.434
for policing.
25. What has not changed as quickly
21. A College of Policing would be a is the basic process for entering and
valuable addition to the existing over- continuing in the policing profession
sight regime in the province. It would in Ontario. The Ontario Police College,
not eliminate the siu, oiprd, or ocpc. located in Aylmer, continues to provide
Rather, it would complement the civil- basic recruit, refresher, and specialist
ian oversight system by developing a courses to police services in the province.
culture of professionalization through a
26. After training, most, if not all,
more regulated body that specializes in
cadets return to their respective services
258 Report of the Independent Police Oversight Review

where they receive additional training. the public in a respectful and cooperative
Once this is successfully completed, the manner.
officers are sworn in and receive their 29. Moreover, I was told that not all
badges and warrant cards. From this police services have the same training and
point forward, officers may engage and professional development expectations
continue in the profession of policing, for their officers. For example, all new
subject to the requirements of the Police police officers must complete the basic
Services Act and legal, ethical, and pro- recruit course from the Ontario Police
fessional standards. College. But some police services require
additional training before an officer will
The requirements needed be hired. And the education and train-
to enter and continue in ing from the recruit stage onwards often
the profession of policing in appears to be driven by the particular
Ontario remain largely static, needs of the individual police services,
not by a consistent, province-wide pro-
ill-defined, and inconsistent.
fessional standard.

27. Many stakeholders from inside and 30. Similarly, the requirements needed
outside the police community commented to enter and continue in the profession
on the indoctrination into police culture of policing in Ontario remain largely
which begins as early as initial training. static, ill-defined, and inconsistent. A
That culture traditionally has been White, police officer may be promoted for var-
male, and hyper-masculine.435 ious reasons. Unlike some other profes-
sions, there is no standard educational
28. Stakeholders told me that train-
requirement or degree of professional
ing emphasizes traits such as physical
competence required to move up the
strength, stoicism, and loyalty to fellow
professional ladder. One police service, for
officers. While those traits are admirable
instance, may have certain expectations
and may be beneficial to the work of a
or requirements for an officer to attain
police officer, they should not overwhelm
a particular rank that are not shared by
other traditional traits such as empathy
other police services.
and compassion. These other traits are
also necessary for officers to engage with 31. In England and Wales, a College
chapter 12 | Other Forms of Police Oversight 259

of Policing was recently established as side relevant legislation, act as a guide to


a professional body for policing. The professional practice. They also serve as
College has begun the process of setting a mechanism for ensuring professional
the qualifications required for new police accountability.437
officers and officer advancement, institut- 36. Furthermore, most professions have
ing continuing professional development licensing requirements. This is the case for
programs, and determining standards for doctors, lawyers, electricians, architects,
policing.436 accountants, engineers, real estate bro-
32. There is no College of Policing in kers, teachers, and many other regulated
Ontario. professionals.
33. In contrast, many other professions 37. Only members of the profession who
in Ontario have regulatory bodies which hold a current licence can identify them-
oversee their members. For example, there selves using the protected titles, such as
is a College of Physicians and Surgeons Registered Nurse. The legislation may
for doctors, a College of Trades for skilled specify activities which can be carried out
trade professionals, and a College of only by a licensed professional, given the
Teachers for teachers. potential risk for harm.
34. The core function of these regu- 38. The licensing requirement for partic-
latory bodies is to protect the public. ipation in certain professions correlates
This is done through the establishment to the importance of those professions to
and maintenance of high standards of the community. It also reflects the high
professional accountability. These stan- degree of responsibility assumed by the
dards in turn lead to a higher degree of involved professionals.
publictrust. 39. For many professionals, the work
35. Notably, one of the hallmarks of a they perform may have a significant
profession is a well-developed code of impact on the health, safety, security, and
ethics. This code provides members of wellbeing of the public. Public protection
the public with a clear idea of the values and trust are therefore emphasized in the
and ethical responsibilities of each mem- role of their regulatory bodies.
ber of the profession. These values and 40. At present, the police in Ontario are
responsibilities, when considered along- responsible for protecting the safety of
260 Report of the Independent Police Oversight Review

our communities. They are empowered Setting standards for the admission,
to arrest and use physical force, including progression, and demission of members
deadly force, against citizens. Yet there of the profession;
is no College of Policing overseeing the Developing a common framework of
profession. Should there be? My answer performance expectations, and of the
is yes. requirements for professional devel-
41. More specifically, I recommend a opment and accreditation;
professional body be created which is Developing a set of ethical and pro-
responsible for regulating and governing fessional standards;
the profession of policing in Ontario. The
Working continuously to improve the
College of Policings functions should
development of policing standards and
include the following:
best practices;
Developing common and clear entry
Monitoring police services to ensure
level academic requirements for police
that they adhere to policing standards
officers;
and best practices;
Working with educational partners to
Fostering the lifetime learning of police
develop a curriculum for a professional
officers to ensure ongoing professional
degree in policing which incorporates
development and competence;
multidisciplinary education in areas
including social and cultural compe- Establishing partnerships in research
tency, mental health, domestic abuse, and education; and
serving vulnerable communities, and Ensuring that police officers carry on
anti-racism and equity studies; their duties in accordance with the
Developing and delivering social and defined expectations.
cultural competency programs for 42. Let me be clear: the establishment
police officers in partnership with of a College of Policing should not
post-secondary institutions; replace the siu, oiprd, and ocpc. It
Working to create a police culture may reduce the work of the oversight
that is more progressive and inclu- bodies through the selection, pro-
sive, beginning at the Ontario Police motion, and support of officers who
College; embody the ideals of professionalism.
chapter 12 | Other Forms of Police Oversight 261

But it would not eliminate the need for Police College from what may be viewed
civilian oversight. as simply a training facility into an edu-
43. Rather, the College of Policing cational institution. This may include
should complement civilian oversight setting a multidisciplinary curriculum
through the development of a culture for a professional policing education
of professionalization. degree, developed in consultation with
other academic institutions.438 A degree
44. This is the approach in England and
program with well-defined expectations
Wales, where the College of Policing
and consistent standards will lead to
coexists with the Independent Police
better accountability, transparency, and
Complaints Commission.
legitimacy of policeservices.

The College of Policing should 47. For most professions, a recognized


system of accreditation for formal edu-
complement civilian oversight
cational programs helps to demonstrate
through the development of a
that graduates of these programs have
culture of professionalization. the required knowledge, specialized skills,
and adequate preparation to carry out the
45. Like the College of Policing in responsibilities of their role. This pro-
England and Wales, the College of Polic- vides reassurance to the public that those
ing in Ontario should set the standards people who are deemed eligible to enter
for policing. This should include stan- the profession are doing so competently.
dards on police education and training for Accreditation constitutes an additional
both new recruits and seasoned officers. and important form of oversight. In many
46. Notably, the College of Policing cases, regulatory bodies (either on their
should play a key role in modernizing the own or with other bodies and agencies) set
education of police officers, both at the standards for accreditation and carry out
Ontario Police College as well as colleges the accreditation functions. The College
and universities. This means evaluating, of Policing should assume this role.
updating, and renewing police studies 48. In addition to setting standards
and law enforcement-related course for training and education, the College
offerings at post-secondary institutions. of Policing also should set standards
And it requires transforming the Ontario with respect to police conduct and best
262 Report of the Independent Police Oversight Review

practices. The College of Policing could 51. Eventually, the College of Policing
play an important role as a repository of could assume a role in the licensing of
researched best practices on a number of police officers. Currently, the professional
policing issues, such as crime prevention, license of the police officer is the offi-
social and cultural competency, and assis- cers individual badge. The badge not only
tance to victims of crime. signifies that an officer is competent to
49. Currently, the core values of one carry out their assigned duties, but also
police service may be weighted differently that the officer will be held individually
from that of another police service. A accountable for their actions.
standardized set of norms and expecta- 52. The police badge is backed by the
tions based on research and knowledge force of authority of both the govern-
would place all police services on the ment and the police profession. It confers
same playing field. More importantly, power upon the officer. How that power
in an aim to ensure public trust, this set is used every day has an impact on the
of norms would provide the public with public perception and trust of the police
information about the roles, responsibil- and the police profession.
ities, and expectations of police officers 53. The College of Policing could
across all ranks. eventually establish criteria for licens-
50. Similarly, the professional stan- ing police officers. A license could
dards of policing set by the College of serve as a prerequisite to a badge. As a
Policing could be used by the Ministry professionals ability to practice is tied
of Community Safety and Correctional to their licensure, there is considerable
Services when monitoring and overseeing incentive for regulated members to
police services. In England and Wales, ensure that their behaviour is consis-
for instance, Her Majestys Inspectorate tent with the established guidelines and
of Constabulary has due regard for the standards of their profession. Among
professional standards established by other things, the College of Policing
the College of Policing when it assesses also could maintain a public register
police services. The Ministry of Com- of licensed police officers in the same
munity Safety and Correctional Services way the regulated health professions
could give similar regard to the standards and legal professions do.
set by the College of Policing in Ontario.
chapter 12 | Other Forms of Police Oversight 263

54. The goal of the College of Policing and governing the profession of policing
would be to develop a culture of profes- in Ontario.
sionalization in policing. Its establish-
ment therefore would not be inconsistent
Recommendation 12.3
with civilian oversight. To the contrary, a
College of Policing would enhance civil- Consideration should be given to
ian oversight through stronger policing establishing a College of Policing sim-
standards and service. ilar to that in operation in England
55. Police services with well-trained, and Wales.
professionally-accredited members are
well-suited and well-prepared to under-
stand the problems, demands, and oppor- Recommendation 12.4
tunities of policing. They should be
Working with post-secondary institu-
empowered to act proactively to identify
tions, a task force or advisory group
and address individual or systemic issues
should be created to evaluate, mod-
before they escalate. And they should be
ernize, and renew police studies and
encouraged to set high professional stan-
law enforcement-related course
dards to build public trust and confidence
offerings across post-secondary
in policing. A College of Policing helps
institutions. Consideration should
achieve these aims.
be given to updating the Ontario
56. As a result, I recommend that a Col-
Police College curriculum, including
lege of Policing be established as a pro-
through the creation of a post-sec-
fessional body responsible for regulating
ondary degree in policing.
APPENDIX A

Recommendations

Chapter 4 Composition of Oversight Bodies

Recommendation 4.1

The laws on the civilian police oversight bodies should be set out in a statute, and reg-
ulations made under that statute, dedicated to civilian police oversight, and separate
from the Police Services Act.

Recommendation 4.2

The siu should be recognized as an arms length agency accountable to the Ministry
of the Attorney General.

Recommendation 4.3

The oversight bodies should develop and deliver mandatory social and cultural com-
petency programs for their staff. Those programs should be developed and delivered
in partnership with the communities they serve and organizations supporting those
communities.

Recommendation 4.4

There should be ongoing recruitment and development of people from communities


under-represented within the oversight bodies, including in senior and leadership
positions.

265
266 Report of the Independent Police Oversight Review

Recommendation 4.5

The siu director and the Independent Police Review Director should be appointed
for a five-year term of office. A person may be re-appointed as director for a second
five-year term, but may not serve more than two terms. A directors appointment may
not be terminated, except for cause.

Recommendation 4.6

When appointing the siu director, the following additional factors should be con-
sidered:

a. The candidates understanding of the sius dual functions of effective investi-


gations and public accountability;

b. The candidates understanding of the needs and concerns of the community


of stakeholders the siu serves; and

c. The added value that a candidates work or cultural background would bring
to the organization.

Recommendation 4.7

The siu should have a deputy director of investigations and a deputy director of
operations and communications.

Recommendation 4.8

The siu should create a public accountability office responsible for public communi-
cations and should be provided with adequate resources for this function.

Recommendation 4.9

The siu should enhance its services to affected persons and should be provided with
adequate resources for this function.
appendix a | Recommendations 267

Recommendation 4.10

Affected persons support staff should make initial contact with affected persons who
are not witnesses. They should maintain ongoing, proactive communication with all
affected persons throughout an investigation.

Recommendation 4.11

The siu should enhance its community outreach and should be provided with ade-
quate resources for this function.

Recommendation 4.12

The legislation should be amended to provide the following:

a. The director or deputy director of investigations may lay charges;

b. The deputy director of investigations may not be a person who is a police


officer or former police officer; and

c. The deputy director of investigations may designate a person, other than a


police officer or former police officer, as acting deputy director of investiga-
tions to exercise the powers and perform the duties of that deputy director if
that deputy director is absent or unable to act.

Recommendation 4.13

Salaries paid to siu investigators should be comparable to those paid to other inves-
tigators.

Recommendation 4.14

The siu should actively recruit civilian investigators with relevant experience who
were not former police officers.

Recommendation 4.15

At least 50 percent of the non-forensic investigators on an investigative team at the


siu should be investigators with no background in policing.
268 Report of the Independent Police Oversight Review

Recommendation 4.16

The oiprd should actively recruit civilian investigators with relevant experience who
were not former police officers. No more than 25 percent of the oiprds investigators
should be former police officers.

Recommendation 4.17

The siu and oiprd should incorporate anti-bias measures into their recruitment,
training, education, and evaluation of investigators.

Recommendation 4.18

There should be a standardized education program to accredit siu and oiprd inves-
tigators.

Recommendation 4.19

The required qualifications and accreditation of an oversight investigator should be


set out in a regulation.

Recommendation 4.20

The Ombudsman should have jurisdiction over all three police oversight bodies.

Chapter 5 Effective Criminal Investigations

Recommendation 5.1

Serious injuries should be defined in the legislation in accordance with the Osler
definition.

Recommendation 5.2

The mandate of the siu should include all incidents involving the discharge of a
firearm by a police officer at a person.
appendix a | Recommendations 269

Recommendation 5.3

The siu should have the discretion to conduct an investigation into any criminal
matter when such an investigation is in the public interest. When deciding whether
an investigation is in the public interest, the siu should consider the following:

a. If there is a request to investigate from a chief of police, a police services


board, the Attorney General, or the Minister of Community Safety and Cor-
rectional Services;

b. If the conduct in question involves allegations of criminal fraud, breach of


trust, corruption, obstruction of justice, perjury, or another serious criminal
offence; or

c. If the matter is pote