Implementation of the Recommendations - The Review (Recommendations 1 to 8)

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In reviewing the status of each recommendation, I do not intend to identify every issue or complaint raised with me. This process was not constituted to identify or unearth the minutiae of differences that inevitably arise within such a complex and controversial undertaking as civilian oversight. Similarly, I have not attempted to list all the many achievements of the SIU. Rather, I will emphasize highlights and key issues.

Recommendation 1:
The SIU should be resourced in a manner commensurate with its important mandate.

The SIU's budget for the fiscal year before the implementation of this recommendation was slightly less than $2.2 million. A shortage of resources was believed to be a key impediment to the operations of the Unit in 1997-98. At that time, the SIU relied frequently on the OPP for forensic investigation assistance and the involved police service for the interviewing of secondary and tertiary witnesses. There were also many occurrences where the SIU allowed the involved police service to investigate the entire incident while the SIU oversaw that investigation. These and other justifiable criticisms of SIU performance were symptomatic of inadequate funding. Without sufficient resources, no regulatory framework can function in an acceptable manner.

The government subsequently responded to this recommendation by significantly increasing the Unit's resources. Following the implementation of this recommendation, the SIU's budget was increased to over $4.7 million for the 1999-2000 fiscal year. For 2002-03, the SIU's budget is just over $5.2 million. There was general agreement that the Unit appears to be now well equipped both in terms of equipment and personnel.

The Unit moved into new premises in May 2000 and is now located at the intersection of Highways 401 and 427, near Pearson International Airport. These new premises not only allow easier deployment of investigators to incident scenes, but were specifically designed to meet the Unit's operational requirements. As discussed in the SIU's 2000-01 Annual Report, SIU investigators now have state-of-the-art audio-video interview rooms, secure evidence and file storage facilities and project rooms. There is also sufficient room to support the SIU's stand-alone Forensic Identification unit which includes a fully-equipped laboratory. The SIU's forensic technicians are now fully equipped with enough scene examination and evidence gathering supplies to investigate effectively.

In January 2000, 20 new investigators from across the province joined the SIU. These investigators included a recently retired Detective from the Toronto Police Homicide Squad and senior retired investigators from the RCMP, OPP and other police services, each with over 20 years of policing experience. A number of experienced investigators with non-policing backgrounds were also hired. In February 2001, 13 new investigators with a similar set of backgrounds and experience joined the Unit.

While the Unit is still unable, at times, to respond quickly to incidents that occur in remote communities, the SIU has developed Operations Order 003 recognizing that, in such circumstances, immediate coordination between the police and the SIU is necessary. It has also developed more expeditious modes of transport to remote locations for its staff. The SIU understands it cannot credibly claim the lead investigator role if it takes several hours to reach the scene of an incident. Police services understand that when they are accorded the lead their efforts must be professional and transparent to meet with SIU and community approval. Such cooperation also requires civil and arms' length business relationships between the SIU and the police to command community confidence.

Recommendation 2:
A detailed and clear Standard Operating Procedure should be adopted as a lawful regulation. It shall explicitly provide that failure of a police officer to comply with any of its provisions is serious misconduct. The Code of Conduct should be amended accordingly. If the regulation's enforceability is to be through the normal disciplinary procedures at the direction of the chief of police, the SIU must be accorded the status of complainant.

This recommendation was implemented in part by the coming into force on January 1, 1999 of Ontario Regulation 673/98 (the Regulation) and Ontario Regulation 674/98. The former sets out the conduct and duties of police officers involved in SIU investigations. The latter amended the Code of Conduct in the Police Services Act by adding as a category of neglect of duty the failure to comply with a provision of Ontario Regulation 673/98. This made the failure to comply with the Regulation a misconduct offence under the Police Services Act.

Neither the SIU nor its Director was accorded the express status of complainant. Although the coming into force of the regulations appears to have significantly improved cooperation among police officers with SIU investigations, there continues to be situations where a police service, police association or a police officer's lawyer initially confronts the SIU. While these occasions continue to decrease and may be the product of inexperience, any doubt over the Director's standing to seek enforcement does not help. While a contextual interpretation of the phrase "member of the public" could reasonably include the Director [11] and no tribunal or court has yet refuted the Director's obvious need to be accorded complainant status [12] , an amendment to the Police Services Act would be salutary. Abundans cautela no nocet. [ Abundant or extreme caution does no harm.] For example, s. 277.40(3) of the Education Act [13] provides:

For greater certainty, a complaint made by a secretary of a board under this section shall be deemed to be a complaint made by a member of the public under clause 26 (1) (a) of the Ontario College of Teachers Act, 1996. [emphasis added.]

No one disputes the need for the Director to have standing to seek an enforcement of the Regulation.

The full extent of the "duty to cooperate" has sometimes become an issue. For example, there has been debate between several police services and the SIU on a requirement to furnish police equipment and other physical items of relevance to the SIU for its investigation when these items are within the police service's custody and control. Similarly, the production of certain police documents with or without a search warrant has been debated on the basis of relevance and privacy issues. These documents and records include personnel files, public complaint files, discipline files and the photographs and fingerprints of officers. [14] I am unwilling to be drawn into theoretical and complex differences lacking the discipline of a concrete set of facts and the legal presentations of talented lawyers. I also see nothing that well meaning parties cannot overcome through their own efforts and this has been happening at the working level. All parties, including the SIU, must be sensitive to problems which can only delay and compromise the integrity of the SIU's investigation. Complex constitutional litigation is not in the interest of anyone.

To date, the SIU and the police community have been able to resolve all differences arising out of specific investigations. There have been very few occasions when the Director has felt the need to resort to or threaten to resort to the complaints process. The SIU has only made three actual complaints of non-compliance with the Regulation, while issuing threats of complaint in other cases. While formal notices of possible complaints have been more frequent than actual complaints, they too represent only a very small number of cases. In each case where a formal complaint was lodged by the SIU, steps taken by the involved police service to redress the grievance eventually led to the complaint's withdrawal. The paucity of complaints, actual or threatened is a positive reflection of the significant reduction of instances of non-cooperation by police officers and police services since the inception of the new Regulation. Specifically, it is the corporate experience of the SIU that incidents of non- or delayed cooperation on the part of witness officers, in terms of interviews and the provision of notes, and non- or delayed notifications of incidents by the police to the SIU, have been significantly reduced since the coming into force of the Regulation. The detailed provisions of the Regulation, its status as a "law" and the potential disciplinary sanctions for its breach have had the intended effect of facilitating SIU investigations and police cooperation with those investigations.

Nevertheless, the ongoing public disagreements between the SIU, the PAO and the OACP are of concern. Both the PAO and the OACP are influential police community organizations which need to pursue courteous dialogue with the SIU and racialized communities before advocating positions which may have serious consequences for stability in this important area of public policy. These disputes can also be quite legally complex and litigation comes with no guarantees. To date, the parties have been very wise to solve their own problems.

A public call for the SIU Director's dismissal has had the potential for impairing the PAO's credibility with third parties given the sparse record relied upon by it to justify this drastic demand. If it wants to play the key policy role an association of its stature can play, it must foster a working relationship with the SIU while still championing the interests of its members. These sometimes-conflicting interests require great skill, patience and leadership. What the PAO does not need is the image of being only ideological when it comes to civilian oversight. The troubling way that image can come across to the outside world is suggested by the reasons of a very experienced trial judge in Wiche v. Ontario. [15] In this respect, Ground J. stated:

Evidence given by Wiche and other police witnesses at trial that they believed the SIU to be incompetent and incapable of carrying out a fair investigation must be given little weight. The witnesses failed to cite any examples of negligent or incompetent behaviour on the part of the SIU or any basis on which their opinions were formed. There appeared to be on the part of certain of the police witnesses and certain police associations, an almost Pavlovian reaction against a civilian agency investigating the conduct of police officers in carrying out their duties and against the idea that such an agency could conduct an investigation which could be fair to police officers. This is particularly surprising when the statistics given in evidence establish that in almost 97% of the cases, the investigation exonerates the subject police officer. [16]

The PAO has raised particular situations where officers have been charged, as did the Thunder Bay Police Association. However, there are or were competing views in all these cases and we have pre-trial and trial processes and legal rights in place to deal with such concerns. Civilians have the experience of being charged and acquitted. Community representatives did not understand why the police should be in any preferred position.

Several community groups argued again for the creation of a provincial offence to address police failures to cooperate with the SIU and the use of outside senior trial counsel as prosecutors. [17] A likely better first step is to guarantee the Director's standing to lodge a complaint and increase the extent of appropriate partnerships among police and community stakeholders and with the SIU. Civilian oversight in the form of the SIU was intended to assist chiefs of police in shouldering their daunting duties, not to be an irritant. The fact that the SIU overwhelmingly clears officers should be seen by the PAO as an endorsement of good policing.

Recommendation 3: The regulation shall provide that, in respect of every incident, a police officer from the involved police service will be designated to liaise between the chief of police of that service and the SIU investigators to ensure full understanding of the investigatory processes and the prompt enforcement of the regulation when necessary.

This recommendation has been implemented in s. 2 of the Regulation. That section allows a senior officer to act in place of the chief in all matters related to the SIU investigation. Many larger police services now have a standing chief's designate who is familiar with SIU procedures and personnel. This position has helped to produce better working relationships between the SIU and a police service and has facilitated the resolution of problems that arise in certain cases involving the police service. In respect of smaller services, whoever is designated is likely to be the senior officer available at the time and who may not have had sufficient contact with the SIU to be comfortable in liaising on the occasion of what is usually a crisis. Any such local discomfort can be contagious in a criminal investigation with resulting undue conflict and delay. Indeed, this seems to have occurred. The OACP has attempted to develop a protocol to assist but this effort has become surrounded in controversy because it materially deviates from SIU practice and has been perceived as a unilateral initiative. A preferable approach is for the SIU to create a package of materials for chiefs and their designates, possibly consulting with the OACP, and to convene working update conferences once a year.

This initiative would only broaden existing joint initiatives. In particular, the SIU has regularly participated in a senior police leadership course developed by the OACP in conjunction with the Rotman School of Business. The course candidates in this program are generally of the ranks to serve as a chief's designate. The SIU's contribution is a combination of a presentation and an exercise conducted by the SIU's investigative supervisors entitled "Walk a Mile in Our Shoes".

The SIU has recently instituted a system of "external case reviews" available on the request of a police service. This is a voluntary process in which the SIU and the police service discuss all aspects of and concerns related to an investigation. The largest scale review of this nature occurred on September 23, 2002 and involved the OPP Commissioner as well as several other staff of the OPP. A variety of issues were discussed at length with the participation of affected officers and the results were very positive for all involved.

Finally, an informal practice has been adopted whereby any dissatisfaction with the investigation process on the part of a chief of police or expressed by a third party on behalf of the chief to SIU scene personnel is reported immediately to the Director. The Director attempts within 30 minutes to reach the chief directly to address these concerns. The approach has prevented minor issues from growing into major problems and has enhanced both working relationships and effective investigations.

Recommendation 4: The regulation should provide that the SIU be notified immediately whenever its jurisdiction is reasonably suspected to be engaged.

This recommendation has been implemented. Section 3 of the Regulation provides that a chief of police shall notify the SIU immediately of an incident involving one or more of his or her police officers that may reasonably be considered to fall within the investigative mandate of the SIU.

Despite this obligation, the mandate of the SIU has been subject to debate and this debate has at times impacted on the notification obligation. More specifically, the issue of which incidents involve a "serious injury" so that the SIU must be called to investigate continues to be a point of contention in some quarters as evidenced by the purported OACP guidelines definition. The SIU, we saw, operates under a definition that was developed in 1991 by Mr. Justice Osler, the first SIU Director, in consultation with only the OACP. The definition provides:

"Serious injuries" shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. "Serious injury" shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide its involvement.

The fact that community groups were not consulted became very controversial. However, as previously noted, they have generally come to accept the definition over the years. The issue of serious injury was briefly discussed in my 1998 report where I reported:

There was broad agreement that the SIU should be notified immediately whenever its jurisdiction is reasonably suspected to have been engaged. It is not practical for a police service to attempt to determine the SIU's jurisdiction in a strict legal sense before notification is effected because of the inherent uncertainty of many incidents. The issue of notification must be treated more like that of calling an ambulance - when in doubt call … Notification can no longer involve a lawyer's interpretation as to the SIU's mandate. Who does what can be sorted out once representatives of the SIU are present… [emphasis added.]

Unfortunately, since then, the OACP and now the PAO have regressed with their own unilateral definitions of serious injury. Both definitions are narrower than the existing definition which has been used by the SIU for over a decade. The OACP definition could significantly reduce the number of incidents reported to the SIU and has been proposed to reduce the legal cost to police services resulting from SIU investigations. However, it is interesting that police services did not express or emphasize this concern and the case of prohibitive legal costs associated with SIU investigations, as opposed to those from trials and in comparison to internal affairs investigations, was not made out before me.

The OACP definition reads:

"Serious injury" shall mean:
  • Injuries that materially impair or interfere with the health of an individual, but does not include:
    • fractures, cuts and burns that do not necessitate admission to acute medical care in a hospital, or
    • admission to a hospital for observation only.
  • Allegations, or real evidence, of sexual assault.

The legal costs stem from the cost of counsel retained by police associations on behalf of subject and witness officers involved in an SIU investigation. These costs would ordinarily fall to the officer and his or her police association. However, in many instances these costs are now paid for by police services as a result of provisions in collective agreements negotiated or arbitrated between police services and their respective police associations. Community groups see this complaint as self-inflicted and as an attempt to use the parties' earlier compromise on representational rights as a sword to achieve a reduction in the SIU mandate - a narrowing which was not achieved in the 1998 talks. In particular, they do not understand why police services boards agree to pay for witness officer legal representation given that witness officers are not the subject of an SIU probe and, in any event, have the benefit of a broad immunity if a redesignation occurs. If a police service board agrees to pay, they question why such boards agree to absorb all of the very high private sector legal fees. It was noted that not all police services pay for counsel as evidenced by the OPP's approach and the OPPA's corresponding cost-effective use of its own in-house counsel. Association staff representatives would obviously be still cheaper. In 1998, the community groups only reluctantly accepted the subject/witness officer distinction, the correlative immunities and right to representation features of the Regulation. Understandably, they now perceive the alleged cost of these police protections being used to shrink the definition of "serious injury" and the SIU's mandate. This is particularly troubling to communities who lack confidence in the general complaints system which process non-SIU issues. [18]

In an effort to address the concern over cost, the SIU implemented a policy of "incident review", whereby the SIU conducts an expeditious preliminary investigation of an incident in order to confirm its jurisdiction prior to launching a full investigation of the matter. The term "incident review" was borrowed from the OPP and represents a process of jurisdictional confirmation. The scheme is set out in detail in paragraphs 4(c) and (d) of SIU Operations Order 002. An incident review which results in the SIU not taking jurisdiction or in the Director exercising his discretion not to investigate is reported only to the Deputy Attorney General in a summary manner and the need for a chief of police to conduct a s.11 inquiry is obviated. Incident reviews are also conducted in the absence of witness or subject officer interviews to avoid the necessity of appointing legal counsel as would be required if designations were to be made. While this seems to work where the issue is confined to the severity of the injury, incident reviews have sometimes become controversial whenever an investigator wishes to speak to any police officer even including a supervising officer in order to understand, in a preliminary way, what happened. Indeed, some police associations have argued that whenever the SIU is involved, regardless of whether there have been designations, the officers will retain counsel. And some chiefs of police, along with the PAO, are demanding that the SIU decide whether or not it has jurisdiction before taking any action. As a consequence, incident reviews may not be achieving the full cost reductions intended by the SIU in all cases. While possibly more consultation on the incident review concept before it was initiated may have avoided some of this controversy, the concept remains a useful one and, for the reasons below, the initial adverse reactions can, with discussion and good faith, be overcome.

Community groups emphasized that they were never consulted on the Osler definition and have grudgingly lived with the existing definition of serious injury since its adoption by the SIU in 1991. However, should the definition be re-examined, they have argued for a broader definition that would recognize stand-alone psychological harm. As for the costs to a police service resulting from an SIU investigation, community groups believe this is a price of civilian oversight worth paying.

The 1991 Osler definition of "serious injury" bears some similarity to the definition of "bodily harm" found in the Criminal Code of Canada. For example, "bodily harm" is defined in the Code as any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. [19] It is noteworthy that this definition of bodily harm does not speak directly to the degree of seriousness of the harm. The Supreme Court of Canada in R. v. McCraw [20] , however, defined "serious bodily harm" as any hurt or injury, whether physical or psychological, that interferes in a grave or substantial way with the physical or psychological integrity, health or well-being of the complainant. The Osler definition, therefore, appears on its surface neither to fully account for the reference to seriousness in the words "serious injury" nor to address the possible psychological element of an injury. Instead, it represents an attempt to operationalize the SIU's jurisdiction accorded by the Police Services Act and the related obligation of police services to notify the SIU by providing a workable approach for parties to facts which will vary from case to case. Moreover, while psychological harm has never been part of that definition (nor arguably was it the original basis for community concern), the SIU does require that injuries be in fact serious before it will conduct a full investigation. However, one difficulty may be that the SIU does not publicly record these instances. More public awareness should reduce the OACP's apparent anxiety over this issue. It should also be observed that the OPP - one of the police services with the most contact with the SIU - continues to abide by the SIU's operational definition of serious injury as do, I believe, the majority of police services.

Beyond the issue of the definition of "serious injury", some police services have also questioned the SIU invoking its mandate when it has chosen to investigate incidents that are perceived to have nothing to do with police conduct and the Criminal Code. One example given was that of an attempted suicide in a residence while the police were at the front door. Another was a motor vehicle collision said to have occurred six kilometers away from where the police had given up the pursuit. At least one police service actually questioned whether the SIU should ever be called when a chief or the chief's designate has concluded there is no criminality. The situation where a police dog "accidentally bit" a complainant was cited as an example.

Community groups, when informed of these incidents, asked how the SIU could possibly be aware of the actual circumstances, unless at least a preliminary investigation was conducted by it. They emphasized that in all of these examples, there was a potential issue of criminal negligence in relation to a death or serious injury and that it must be the responsibility of the SIU to decide when to invoke its mandate. Communities saw these situations involving a conflict of interest for the police to be allowed to decide if the jurisdiction of the SIU was to be engaged. They also worried about the attendant delay in controlling the incident scene where a police service concludes the SIU lacks jurisdiction and does not notify, but the SIU ultimately decides it should have been notified. Indeed, communities were concerned that no one seems to have been disciplined for failing to notify the SIU in a timely manner which had obviously occurred in the dog bite example.

In my original report, I noted there was broad agreement that the SIU should be notified immediately whenever its jurisdiction is reasonably suspected to have been engaged. I also noted that it was not practical for a police service to attempt to determine the SIU's jurisdiction in a strict legal sense before notification is effected because of the inherent uncertainty (and subjectivity) of many incidents. In continuing to approach the issue as one of strict jurisdiction, any police service runs the serious risk of having its actions perceived as a rejection of civilian oversight and a violation of the duty to cooperate as expressed in the Regulation. The community will have more confidence in the SIU deciding not to get involved than if that decision is made for it by the very police service involved or associated with an event.

The SIU's mandate is investigatorial and, surely like an administrative tribunal, it has the jurisdiction to initially decide if its jurisdiction has been or should be activated. It can only exercise that jurisdiction if chiefs of police take a deferential gate-keeper approach and immediately notify the SIU when there is a reasonable basis or "air of reality" for doing so. The courts have referred to similar roles as a "screening function". A screening function does not involve the weighing of evidence to determine its ultimate reliability. What is envisaged is an objective determination of whether there is reasonable basis in the circumstances for proceeding to the next stage. [21] Part of those circumstances is the recognition that any delay may impair the integrity of an investigation such as the failure to segregate involved police officers. In short, the community's confidence is part of the context. Thus, this contextual approach makes it unwise for the police community to undertake "trial judge" determinations on whether there is in fact a serious injury or a Criminal Code violation. Indeed, a contextual approach helps explain why the test of notification in the Regulation is one of reasonableness particularly where the Director's power to lay informations found in s. 113(7) of the Police Services Act makes no specific reference to serious injury. In other words, an "absence of jurisdiction" could never likely defeat the laying of an information by the Director.

The OACP Guidelines, with a definition different than the one originally negotiated, has created unnecessary confusion. Moreover, the OACP phrase "acute medical care" - presumably a medical term - has produced less clarity for the lay persons who must apply it and will only lead to more troubling delay in notification as physicians are consulted. Indeed, even if one accepts that hospital admission practices are changing to cause an altering of the SIU's jurisdiction under the Osler definition, the changes cut both ways. Today, serious medical interventions can occur without hospital admission just as patients can be admitted for extensive observation to determine the extent of injuries. Accordingly, the new tests of the OACP are unlikely to improve matters. I appreciate that the OACP believes the SIU is not giving due emphasis to the adjective "serious" as it is obligated to do. Unfortunately, I was not given helpful examples of where this has been the case. The dog bite incident could reasonably be seen to involve a serious injury and potential criminal negligence. Most were cases where doubt surrounded the SIU's jurisdiction and, after conducting its initial review, the SIU discontinued the investigation. The parties need to cooperate more on incident reviews and the SIU should consider the public documentation of situations where it declines to further investigate in order to provide better guidance on what is and is not considered to be "serious". I understand the SIU is willing to work with all parties on both counts.

Recommendation 5:
Public notification of the SIU is to be made readily accessible.

This recommendation has been implemented. The SIU's 1-800 number is now in telephone books throughout the province and in a bilingual format. The SIU has also launched an improved website containing information on the Unit's history and manner of operation, press releases and a virtual tour of its facilities. Where notification is from a non-police source, the chief of the involved police service is immediately notified before any investigative steps are taken.

Accessibility to the SIU will need to be an ongoing effort for the Unit. More than a telephone number and a website may be necessary. Some community groups have suggested that the SIU's profile needs raising and proposed that information on the SIU also be posted in community centers, that pamphlets be distributed to those centers and that community representatives located there be given some basic education about the SIU and when to contact it. This is particularly important in northern communities where community centers provide vital communications links with more remote locations and are likely to be the point of first contact for a potential complainant.

The SIU's annual report, its steps since 1999 to establish a visible corporate identity and its thoughtful media relations have all contributed to the SIU being recognized by the public as a reliable public institution.

Recommendation 6:
The regulation should provide for securing of the incident scene in a detail consistent with usual police practices for serious incidents and be capable of enforcement.

This recommendation has been implemented in s. 4 of the Regulation which requires that the chief of police secure the scene in a manner consistent with police practice for serious incidents. Since the implementation of the recommendation, there does not appear to have been any difficulties in regard to the security of the scenes similar to the ones referred to in my earlier report (e.g. the permitting by the police of unauthorized persons to be at the incident scene).

The obvious exception to this positive commentary is where "jurisdictional" issues have arisen and the incident is not reported. In such circumstances, the scene may not be secured at all. This type of situation has arisen even in respect of those incidents where an individual has been taken to a hospital by the police and, in some cases, admitted for observation. Taking the position that they were not certain of the true nature of the injury and were working on the presumption that the injury was not serious, the police have reported late if they have reported at all. As explained under Recommendation 4, the OACP definition of "serious injury" specifically excludes admission to hospital for observation. Unfortunately, this approach, should the injury prove itself even to the police as serious, can leave the incident scene unsecured and the officers unsegregated in the meantime. The result is inconsistent with the purpose of notification as set out in the Regulation and with fostering public confidence in our police services.

Recommendation 7:
The regulation should make clear that the SIU has the lead investigatory role in gathering evidence and interviewing witnesses.

Section 5 of the Regulation implemented this recommendation. Although there have been a few incidents where the authority of the SIU as the lead investigation agency has been challenged in areas such as its authority to designate officers and its ability to enter an incident scene, these difficulties, for the most part, have been the result of a lack of experience with the Regulation and have been remedied on a case-by-case basis.

The SIU says it has attempted to facilitate effective working relations between it and the police in respect of incidents that give rise to parallel investigative interests through the adoption of several Operations Orders. Operations Order 003 purports to be a formal recognition of the investigative interests of the police in respect of incidents that have triggered the SIU's mandate. It is principally directed to those cases where the parallel interest involves a police criminal investigation. Operations Order 005 is intended to address SIU-police cooperation in the context of police administrative investigations under s. 11 of the Regulation. Operations Order 013 deals with the issue of the seizure of police equipment.

The police have challenged the issuance of these orders without prior consultation. The SIU responds that it needed to move quickly on getting its house in order; that it is autonomous; and that it has been wary of endless and hostile debate. One of the primary concerns of the police services is that the SIU orders limit the sharing of information with the police service. Chiefs of police argue that evidence gathered by the SIU that could assist the police in its parallel criminal investigation or in a chief's s. 11 administrative investigation are routinely denied to them.

The SIU maintains that among the imperatives critical to the Unit's success is its general policy of "confidentiality without consent" which it applies in respect of witness statements and other evidence. According to the SIU, the objective of the policy is to foster cooperation of witnesses in SIU investigations by ensuring that the information they provide will be maintained in confidence if that is their wish. It is believed that without such assurances certain witnesses, particularly those who stand in jeopardy in relation to a separate police investigation, are less likely to come forward and provide information to the SIU.

The police services submit that requests made to the SIU from parties engaged in legal proceedings sometimes result in the disclosure to those parties of the very evidence that is denied the police. This usually arises in criminal proceedings initiated by the police relating to incidents that were investigated by the SIU. In those cases either the prosecuting Crown counsel or defence counsel could request the SIU's file on the basis of the disclosure obligations recognized in R. v. Stinchcombe. [22] The legal proceeding might also be a civil action against the SIU resulting from an incident that was investigated by the Unit. In still other cases, the SIU is served with subpoenas from parties to civil or criminal proceedings seeking production of SIU files related to witnesses that may have been involved previously in SIU investigations and who are witnesses in the proceeding in question.

The SIU has stated that in sharing information with the police it must not be enlisted, nor be perceived to have been enlisted, in the incrimination of the witnesses that it has interviewed. This is especially true of those witnesses whose injuries are being investigated. The SIU maintains that on every occasion when it is asked for information, it reviews those requests with a view to ascertaining which materials, if any, may be produced to the requesting party without violating the interests that underlie its confidentiality policy. Where the production of certain materials would undermine the interests underlying the policy, the SIU asserts a privilege in the material and declines to produce it. In R. v. Tomlinson [23] , for example, the SIU was accorded third party status in this type of situation. The SIU's denial is normally given in the context of a request by the prosecuting Crown and/or police for a statement of an SIU witness who stands charged with a criminal offence relating to an incident investigated by the SIU. The SIU advises, that as a practical matter, police services are given the names of all witnesses and the civilian witnesses usually do not request confidentiality. While police officers designated as witnesses usually do require confidentiality, chiefs of police have the power to direct a s. 11 administrative interview with any police officer - whether a subject or a witness officer - where he or she must speak or face discipline. Obviously, it might be convenient or tactically useful for the chiefs to have an officer's SIU statement in conducting that interview. However, the competing interest of the SIU in securing cooperation with its investigations also has to be considered.

Police services have raised concerns regarding the SIU's interaction with the Office of the Chief Coroner and specifically where police officers are prevented from attending autopsies on certain occasions. The police believe that the SIU is responsible for this denial. However, the decision regarding attendance at autopsies is that of a coroner and it is the position of the Chief Coroner that only those with a real investigative interest in a death and without any apparent conflict of interest will be granted access. It is reassuring to see that on this issue, the SIU, the Office of the Chief Coroner and the OACP are working together to develop effective protocols to resolve any conflict. For example, a protocol for determining the location of the post-mortem, attendance at the post-mortem and the sharing of information has been implemented.

It might also help to include the SIU in sections of the Coroners Act [24] as an organization providing assistance to a coroner and, thereby, better institutionalize its role. But the lack of reference to either the Unit or a peace officer [25] has not proved an impediment to date. The Office of the Chief Coroner is aware of the sensitivity of SIU investigations and the needs of all stakeholder groups. It is recognized that the SIU is the lead investigatory body; that it has need for information about the cause and manner of death as quickly as possible; and that the community's confidence in the SIU and policing are at stake.

Recommendation 8:
The regulation should provide that all involved officers (subject and witness officers) shall be segregated from each other to the extent that this is practicable and prohibit the discussion of the incident with each other until they are interviewed by the SIU.

This recommendation has been implemented through s. 6 of the Regulation. The recommendation was made in the earlier report in response to the concern that segregation of involved officers was necessary to maintain the integrity of an SIU investigation. The recommendation also recognized that, in remote locations, the investigation may have to accommodate the inherent delay associated with the SIU's attendance, and the segregation of officers from each other may not be practical. The Regulation, therefore, proscribes any discussion of the incident between involved officers until they are each interviewed by the SIU.

It was reported by the SIU that officers have frequently gone off duty, some with claims of stress related injury, and their counsel are often unavailable immediately. It has also been reported that at least one police association lawyer took the position, without objection by police supervisors, that this provision in the Regulation could not be used as a basis for requiring officers to remain at the scene or at the detachment until the SIU arrives. In cases where officers do stay on duty and remain physically segregated, the SIU has sometimes encountered one lawyer acting for multiple witness officers and, surprisingly, even including subject officers. Given the ethical obligation of disclosure of a lawyer to his or her client, this practice can undermine the purpose of segregating the officers and clearly needs review.

Any of these practices can offend both the spirit and the law of civilian oversight. Thankfully, they do not appear widespread and, of course, chiefs of police have a duty to monitor and deal with any abuse. If they do not, the Director of the SIU has access to important sanctions.

I was advised by several police lawyers that the SIU was seldom ready or willing to immediately interview involved police officers, preferring first to analyze what has happened from other sources. Police associations have stated that the retention of a single lawyer to represent witness officers is an attempt to save money. But this commendable sensitivity cannot defeat the legal requirement of segregating officers. Importantly, police services have advised that they are working at developing procedures to ensure that their officers remain in compliance with the Regulation. For example, compliance has also required police services to depart from the common practice of group debriefings immediately following tactical team operations. Some police services have expressed significant concern over this issue, but appear to be developing practices to comply. Professional working relationships, I am satisfied, will be able to resolve these issues and chiefs of police must be vigilant in responding to SIU concerns.


Footnotes:

[11] The Director is not excluded from being "a member of the public" in contrast to the exclusion of other officer holders by s. 57(7) of the Police Services Act.

[12] Compare Nova Scotia Advisory Council on the Status of Women v. North Sydney (Town) Police Department (1992), 15 Admin. L.R. (2d) 218, [1992] N.S.J. No. 107 (N.S.S.C. (T.D.)).

[13] R.S.O. 1990, c. E.2.

[14] Since the enactment of the Regulation, the SIU has consistently maintained that the duty to cooperate in s. 113(9) of the Police Services Act extends to the provision by police services, on request by the SIU, of all relevant and non-privileged police documentation, except for subject officer notebook entries related to the incident under investigation. However, as a practical matter, the SIU has refrained from pursuing the production of various other police records that might trigger the same constitutional interest of subject officers such as incident reports or occurrence reports that have been completed in the wake of an incident. For some of the recent case law see R. v. White, [1999] 2 S.C.R. 417 and R. v. Jarvis, [2002] S.C.J. No. 76. The 2001 OACP "guidelines" document sought to expand the scope of the materials exempt from disclosure to the SIU. However, after receiving the SIU's position paper and meeting with SIU staff on June 7, 2002 significant revisions were made, creating what is now the June 16, 2002 document. Thus, while important differences remain between these parties, the situation is an example of positive dialogue and dialogue which will, I'm satisfied, continue to produce positive results. Some of the issues discussed between these parties include whether s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 or the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 or the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 require that some limited types of records only be produced in response to a search warrant. See also R. v. Fudge, [1999] O.J. No. 3121 (Ont. S.C.J.) for a somewhat similar debate concerning whether O'Connor principles apply.

[15] (2001), 38 Admin. L.R. (3d) 194, [2001] O.J. No. 1850 (Ont. S.C.J.) [cited to O.J.].

[16] Ibid. at para. 61.

[17] For an attempt by one affected family to enforce the duty to cooperate by a civil action see: Odhavji Estate v. Woodhouse, (2000) 52 O.R. (3d) 181 (Ont. C.A.) leave to appeal to S.C.C. granted [2002] S.C.C.A. No. 75.

[18] See, for example, Toronto Audit Services, Performance Audit The Public Complaints Process Toronto Police Service, by J. Griffiths (Toronto: City of Toronto, 2002). See also J. Duncanson, "Police complaints overhaul urged" Toronto Star (23 October 2002) B3.

[19] Criminal Code, s. 2.

[20] [1991] 3 S.C.R. 72. The term "serious bodily harm" is no longer found in the Criminal Code provision that was examined in the case and, of course, the phrase used in the Police Services Act is "serious injury". Therefore, it is that latter statute's legislative history which must be resorted to in any purposive analysis of the appropriate degree of harm for the SIU to be involved.

[21] For a similar approach quite close to home for chiefs of police, see Corp. of the Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services), [2002] O.J. No. 3737 (Ont. C.A.). See also Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, Jackman v. Newfoundland Dental Board (1989), 39 Admin. L.R. 154 (Nfld. S.C. (T.D.)) and W.J. Manuel & C. Donszelmann, Law of Administrative Investigations and Prosecutions (Aurora, Ont.: Canada Law Book, 1999) at 369.

[22] [1991] 3 S.C.R. 326 [hereafter Stinchcombe].

[23] (1998), 16 C.R. (5th) 333, [1998] O.J. No. 1596 (Ont. C.J. (Prov. Div.)). The SIU was accorded third party status, triggering the application of R. v. O'Connor, [1995] 4 S.C.R. 411, (1995), 103 C.C.C. (3d) 1 not Stinchcombe, ibid.

[24] R.S.O. 1990, c. C.37.

[25] An SIU investigator has the status of a peace officer. See Police Services Act, s. 113(4).