Implementation of the Recommendations - The Review (Recommendations 18 to 25)

Recommendation 18:
Increased resources for the SIU should provide for more substantial initial and ongoing training of investigators including independent peer review of its investigatory practices.

In 1998, ongoing training of SIU investigators was particularly important to both police and community groups. It is now widely recognized by both community and police groups that the competence, the training and the professionalism of SIU investigators have significantly improved. The SIU reported that since January 1, 1999 there has been almost a complete turnover of the members of the Unit (over 95% of its staff) and that training has been aggressively pursued. One of the first steps taken in the renewal of the Unit was to hire a full-time Training Coordinator. The role of the Training Coordinator is to assess, in accordance with standards established by senior investigative staff, the training requirements of each member of the Unit and to implement the required training, whether through programs or courses organized within the Unit or at an external institution.

The Training Coordinator is also responsible for managing the newly developed annual performance assessment program out of which further training requirements are identified. The position of the Training Coordinator is a major innovation at the SIU and has institutionalized ongoing training and, thus, continuous improvement. Approximately nine percent of the SIU's total budget is devoted to training. [35] The Unit filed information on the numbers of staff trained in particular subject matters and its training plan for the current fiscal year. The SIU takes the position that its training standards and the qualifications of its personnel are on an equivalent level with any police service in the province. However, it would be even more reassuring to learn an independent peer review mechanism, as recommended in my original report, had arrived at the same conclusion.

SIU investigators have taken advantage of many opportunities over the last three years to join other law enforcement professionals in investigation courses sponsored by various organizations such as the Ontario Police College. The SIU has itself hosted at its headquarters training programs administered by the Ontario Police College, such as the conduct of homicide investigations and major case management, as well as specialized programs imported from the United States. Since 1999, the SIU has implemented a new process for the selection of Unit staff. Its advertisements for investigative positions have attracted hundreds of applicants and each applicant has been vetted through background checks, practical tests of skills and interviews. The SIU reports that these efforts have resulted in an investigative staff complement with very high-quality experience in criminal investigations. Significantly, five of the Unit's ten full-time investigators now come from a non-police background as do three of the as-needed investigators.

Both police and community stakeholder groups confirm vast improvement in the SIU's core competencies.

Recommendation 19:
There should be cross-cultural education opportunities for SIU investigators and a commitment to recruit qualified investigators from more culturally and racially diverse backgrounds.

The original report noted that cross-cultural education was a particularly important concern for racialized community groups and, in particular, Aboriginal communities. As a result, it was recommended that appropriate cross-cultural training should be undertaken by SIU investigators and that there be a commitment to recruit from more culturally and racially diverse backgrounds. The SIU has admitted to having experienced difficulty with fulfilling this recommendation. In respect of recruiting qualified investigators with more culturally and racially diverse backgrounds, the Unit has been successful only to the point of hiring one investigator of ten full-time investigators with a First Nations heritage and one of 35 as-needed investigators with some First Nations antecedents. However, it was noted by the SIU that only one of ten full-time investigators is female as are only three of 35 as-needed investigators. [36] Other cultural groups are represented amongst the SIU's administrative staff. All of these individuals won competitions for their positions purely on a merit basis.

The SIU is beginning to discuss this issue of recruitment with community groups, the Director's Resource Committee and police communities. Therefore, efforts to attract meritorious candidates with greater cultural and racial diversity appear to be continuing. A more concerted approach will likely have budgetary implications. The SIU has also stated that it will continue to ensure that investigative staff are sensitive to the various cultures with which they have contact. These efforts have included the involvement of appropriate speakers at the SIU's annual investigators' seminar. The African-Canadian community and other racialized groups, however, would like to see more institutionalized training efforts in these areas as the Unit has done with training generally.

In regard to Aboriginal communities, the SIU reported that the bulk of its experience is with First Nations people in off reserve situations given the growing independence of First Nations policing and the absence of jurisdiction over First Nations constables. To ensure that an appropriate process is followed both in respect of off reserve incidents and in those situations when the SIU wishes to go onto a reserve, the SIU developed Operations Order 017 in consultation with several First Nations chiefs of police. That Order formally recognizes the distinctive status of Aboriginal peoples in Canadian society and seeks to ensure an approach to SIU investigations involving Aboriginal persons that reflects respect for the realities that are uniquely Aboriginal. The SIU also has made efforts to involve the Unit's one First Nations investigator in any case involving First Nations people. This involvement included the SIU's participation in a healing circle when explaining the closure of an investigation regarding the death of a young native man to his mother and other family. However, more institutionalized training of all its investigators on Aboriginal culture would be desirable.

Recommendation 20:
The SIU should also establish channels for regular communication between itself and the Aboriginal communities of Ontario appropriate with the latter's unique status in Canadian society.

Grand Chief Stan Beardy of the Nishnawbe Aski Nation urged that the SIU conduct public awareness sessions in schools, community centres, and First Nations in the north to better inform community members what they can do when they come into conflict with police officers. For example, it was pointed out that a growing number of the 40,000 member Nishnawbe Aski Nation are moving off reserve to live in large urban centers such as Thunder Bay and Sudbury where they sometimes experience altercations with police officers. Community representatives from Kenora during the original consultation and some correspondence received during this review pointed to similar trends.

The SIU has explained that the establishment of regular channels of communication between the SIU and the Aboriginal communities has proven difficult owing largely to the diversity within and between these communities in Ontario, particularly at the political level where the SIU sees the need to be conscious of the existence of both band councils and chiefs of First Nations police services. Moreover, the trends referred to require government support and community-based dialogue. Notwithstanding these difficulties, however, the SIU has experienced progress on several outreach fronts and an approach to the Union of Ontario Indians might also prove helpful. As discussed under Recommendation 19, the SIU consulted with representatives of the First Nations policing community in Ontario to develop Operations Order 017. It has also created the SIU Director's Resource Committee which could offer representation to the urban Aboriginal community. This would be a representation additional to the separate dialogue envisaged by the recommendation. In November 2001, a member of the SIU spoke at one of the meetings of the Spirit of the People, a First Nations organization in Toronto that counsels troubled First Nations youth.

Recommendation 21:
The SIU, the police and community groups should meet on a regular basis to discuss general SIU-related matters. SIU resources should reflect this commitment.

In 1998, everyone who was consulted stated that it would be helpful for regular meetings to take place among interested parties. As the SIU's work necessitates contact with the police, the SIU deals frequently with police organizations such as the OACP, the OPP, the PAO, the OPPA and many other police associations. It is the SIU's perception that these organizations have preferred to meet with the SIU separately and the SIU denies that it disbanded a broad-based policing committee as charged by the PAO.

The working relationship between the various police organizations and the SIU varies considerably depending on the police organization. Although meetings may have been difficult to arrange five years ago, the SIU now meets regularly with the OACP. An OACP preference for speaking directly to the Attorney General instead has dissipated with the encouragement of the Attorney General. Importantly, the OACP's SIU Committee is no longer dominated by lawyers. The larger police associations show little reluctance in contacting the SIU Director whenever the need arises. The president of the OPPA has sat on two hiring panels for investigative supervisors along with a community representative. In contrast, the relationship between the SIU and the PAO, by both organizations' admission, needs improvement. They might benefit from a few facilitated meetings, but this requires a mutual will to establish a civil dialogue. Importantly, PAO leadership emphasized to me the value of more regular dialogue between the SIU and the police community.

In comparison to the police community, meetings with community groups have been more difficult to organize primarily due to their limited resources and lack of familiarity with the SIU. In an attempt to mitigate these shortcomings, a Director's Resource Committee, comprised of representative members of the community was formed early in 2002. Some police groups, however, expressed concern over the absence of an equivalent committee for police interests. Obviously, all such dialogue is not about specific cases which are active, but is to promote better general understanding and transparency in order to foster the confidence of SIU stakeholders.

This consultation explored the possibility of occasionally merging the meetings between the SIU and the police and those between the SIU and community groups into larger joint meetings. Reaction to this proposal was mixed with both support and concern emanating from police and community groups alike. One concern was that the clear need for such interaction transcended SIU matters and might be requesting this investigatory body to step beyond its core responsibilities. Nevertheless, the value of broad dialogue, including the need for the re-opening of the lines of communication between the SIU and the PAO, was recognized by all parties. It might be appropriate for the Attorney General to request a few leaders from the stakeholder groups to meet and assess the practicalities of institutionalizing joint meetings including their timing, locations, scale, appropriate sponsoring bodies, appropriate participants and typical topics. Broadly attended conferences such as Toronto's 2000 Conference on Alternatives to Lethal Force by Police are important social capital investments which foster understanding and innovative policy initiatives.

Recommendation 22:
The Special Prosecution Unit should be much better resourced and its standing within the Ministry of the Attorney General restored.

Since my previous report, the Special Prosecutions Unit has been re-named "Justice Prosecutions" to more accurately reflect its unique and important role within the Ministry of the Attorney General in prosecuting those in the justice sector who are charged by any authority. Thus, the mandate of Justice Prosecutions is to take carriage of cases involving allegations of serious offences/conduct alleged to have been committed by justice officials, and while not limited to SIU-related charges, SIU charges represent a core of the Unit's work.

The Ministry of the Attorney General reported that the Unit is staffed by its full complement of six counsel, including the Chief Counsel. The curriculum vitae of these lawyers were provided to me. I was advised that experience has shown this to be sufficient staffing to handle the normal caseload of the office. When exceptional resource demands are placed on the office, the Chief Counsel is able to draw on experienced prosecutors within the Crown Law Office - Criminal or other Regions within the Criminal Law Division who appreciate the challenging nature of this Unit's cases. I was also advised that Justice Prosecutions has been successful in attracting some of the most senior and well-respected prosecutors within the Ministry through a secondment process. In addition, the Unit employs mid-level and junior counsel who take carriage of less serious matters and/or assist senior counsel on sensitive or complex files. Through the combination of the secondment process and the development of new counsel, the Ministry of the Attorney General expressed confidence that Justice Prosecutions will continue to be able to draw on seasoned prosecutors with the necessary experience to handle these difficult cases.

However, the perception of the resourcing of this Unit has been mixed. Some community groups and a few police association lawyers expressed the concern that the Unit is inadequately staffed. Other police association lawyers expressed the view that the Unit is very well staffed. While there has been no question regarding the dedication and commitment of the lawyers in the Unit during the last three years, they are often perceived as hampered by a lack of experience. [37] The recent addition of one senior counsel brings its senior counsel complement up to three including its very experienced Chief Counsel, James K. Stewart. There has apparently been a 100% turnover of the lawyers, possibly as part of a "three-year stint" policy of the Ministry. Obviously, such a policy must balance needed renewal with its attendant losses of experience and efficiency. Many participants in this process saw the current balance of renewal and experience as imperfect. A three-year stint policy is a function of the "intensity" of the Unit's cases and human resource planning within the Ministry. Community leaders, however, worry that it is also a function of a perception in the Crown Attorney community that working in the Unit is something akin to "going to the dark side". Anecdotal evidence of alleged hostile treatment of SIU investigators and prosecutors by local justice officials during trials may confirm this latter belief. The SIU also worries that the Unit's workload sometimes interferes with the provision of timely advice.

Community groups contended that the Government's investment in the competence and independence of the SIU will be defeated or compromised without a correlative commitment to the Justice Prosecutions Unit. Community confidence, they argued, demanded independence and competence in the handling of these unique cases from the laying of an information until the completion of the trial. These racialized community groups argued that public perceptions of prosecutorial independence and competence were as important as these attributes existing in fact. For example, I was asked if the Unit had a mission statement outlining to the public its role and commitment to independence and whether its members were regularly trained for its challenging cases and for racial awareness. Finally, some community leaders were sufficiently concerned to suggest that the Government should consider retaining senior outside counsel to prosecute SIU cases as is apparently the approach in Manitoba.

My meetings with senior Ministry officials responsible for the Unit reviewed these issues and concerns. They pointed out that the Crown Attorney's role, by its very nature, demanded independence [38] and they suggested that community groups were simply unaware of the resources available to the Unit. On the issue of independence, it was emphasized that a public prosecutor is a quasi-judicial officer and an agent of the Attorney General who must maintain a distance from the police in order to have the detachment necessary to carry out the role of an independent legal adviser. The policing function is distinct from the prosecuting function and a police officer is not a "client" who can retain and instruct counsel. Therefore, Ministry officials stressed the inherent independence of the Crown Attorney as an agent of the Attorney General - an independence which explained why the Director of the SIU now reports to the Attorney General.

Ministry officials said that community groups also had to understand that a Crown prosecutor occupies the dual role emphasized by the Royal Commission inquiry into the prosecution of Donald Marshall. [39] He or she must prosecute vigorously those accused of a crime. But, on the other hand, a Crown counsel must ensure that the power of the state is used only in the pursuit of impartial justice. While the perspective and interests of the victim should be taken into account throughout the prosecution process, the prosecutor is not the victim's lawyer. Thus, requests to retain senior outside counsel "with fire in their bellies", confused the role of private lawyers with the responsibilities of Crown Attorneys.

Nevertheless, Ministry and Justice Prosecutions Unit officials were willing to meet with community groups to discuss these issues - indeed, they were willing to meet with all stakeholders. They were also open to crafting a mission statement; to reviewing the adequacy of staffing; and to reviewing the Unit's training needs in all respects. Nevertheless, officials forcefully rejected that the Justice Prosecutions Unit's administration and competence, whether in fact or in perception, in any way impaired the Government's investment in the SIU. They also rejected that the Justice Prosecutions Unit can be fairly evaluated on the basis of the number of convictions obtained.

Recommendation 23:
All Ontario police officers should be provided with ongoing training concerning SIU procedures. There should be similar training at police colleges.

Significant progress appears to have been made in regard to the training of Ontario police officers concerning SIU procedures. The work of the SIU is now a regular part of police recruit training at the Ontario Police College where senior SIU personnel give presentations to the recruits. Similar training occurs at Toronto's C.O. Bick College.

The SIU reports that its role and work are also featured prominently in the curricula in policing courses in university criminology programs and in college-level police foundation courses where SIU personnel regularly attend to teach about the SIU and its operations. We saw that at the senior police leadership level, the SIU is a component of the Senior Police Leadership Course run by the Rotman Institute on behalf of the OACP. The SIU has also taken steps towards a broader public education program with Crown Attorneys. It continues to advocate for a more formal education and training curriculum for Crown Attorneys, along the same lines pursued with the policing community, to prevent, for example, the occurrence of problems that may arise in relation to parallel cases.

Recommendation 24:
The Ministry of the Attorney General should ensure that the tenure and compensation of the Director of the SIU are commensurate with the responsibilities of this important office.

The current SIU Director has been appointed by Order in Council for a five-year term. This compares favourably with the prior practice of one-year appointments. Remuneration for the Director is consistent with the remuneration of Assistant Deputy Ministers at the Ministry of the Attorney General. Independence of the Director's position is reinforced by the absence of merit pay and the associated performance assessment. The Director noted that he has never experienced any case-specific interference on the part of the Attorney General or the Deputy Attorney General. It was observed by some participants that to achieve a truly independent status for the SIU, it would be necessary to adopt something similar to the model in place for the Ombudsman's Office in which the Ombudsman is an officer of and reports to the Legislature.

As we have seen, the independence that is enjoyed by the SIU Director has been subject to the criticism from the police community that the Director lacks real accountability. For example, it was contended that whenever criticism or complaints were made to the Attorney General, the complaint was referred to the Director of the SIU. Therefore, the police community suggested that members of the SIU and the Director be held accountable through a mechanism similar to that for police officers in the Police Services Act and that there also be recourse for the police to an appeal or mediation mechanism whenever there is a dispute related to the conduct of an investigation. Community groups, as noted, vigorously rejected these "oversight over oversight" proposals and noted that the accountability mechanism in the Police Services Act was appropriate for the police officers who are given extraordinary powers and carry weapons. However, such accountability was not appropriate for the SIU whose role is solely to investigate the police in very narrow circumstances. Police officers are also, and have the security of, public office holders.

Community groups questioned how an unprecedented appeal or mediation mechanism could be designed for an ongoing criminal investigation without becoming a tactical sideshow. There is no known equivalent applied to the decisions made by police in the course of a criminal investigation. The concern was also expressed that such an appeal mechanism could be used as a vehicle to delay and frustrate an SIU investigation by well-resourced police associations. Furthermore, community groups pointed out that the Director is accountable to the Attorney General and through the Attorney General to the Legislature. The Director and SIU are also accountable to the courts and the Ombudsman. The SIU instituted a Complaints Policy under its General Order 005 [40] that sets out how a complaint may be lodged against one of its employees. Any related discipline can be grieved by the employee to an independent arbitrator constituted under a collective agreement.

The request by some police associations that charges by the SIU only be laid after the approval of three Crown counsel is inconsistent with Ontario's policy of independence between Crown counsel and police investigators. Police officers exercise their discretion in conducting investigations and laying charges entirely independent of Crown counsel. However, Crown counsel screen all informations laid including those laid by the SIU's Director. Charge screening is based on the standards of "reasonable prospect of conviction and public interest". [41] Pursuant to this policy, SIU charges were recently withdrawn against an OPP police officer. [42]

Recommendation 25:
The Ministry of the Attorney General should consider charging the Dispute Resolution Centre with the responsibility of designing and providing specialized facilitation services to parties in SIU matters who may wish to pursue conciliatory discussions.

In my previous report I noted that some parties saw the need for a voluntary forum to be made available to interested parties to pursue conciliatory discussions. Such a forum was thought to be an appropriate vehicle to allow those involved with a death or serious injury to speak openly about the impact of the incident on their lives. Participation would be strictly voluntary and without prejudice. The hope was that such facilitated discussions could obviate the need for lawsuits and continuing anxiety.

While this recommendation was not formally implemented, the SIU has participated in a somewhat equivalent healing circle process as previously noted. The Nishnawbe Aski Nation also welcomes any opportunity to work with the SIU and police to promote the greater use of healing circles in this area. There is, as well, the opportunity for the parties to any incident to design their own mediation intervention consistent with the purpose of this proposal. In fact, I was retained, in my practice as a private mediator, in one particular dispute as many parties to this review were aware.


Footnotes:

[35] See, for example, SIU, Annual Report 2001-2002, (Toronto: SIU, 2002) at 23-25.

[36] I understand the point of this observation, but the underrepresentation of female investigators might also be a source of concern.

[37] C. Blatchford, "It was a fight outdoors and a massacre in court" National Post (19 December 2000) A12.

[38] Nova Scotia, Royal Commission on the Donald Marshall, Jr. Prosecution, Royal Commission on the Donald Marshall Jr. Prosecution, vol. 1 (Halifax: The Commission, 1989) at 241 [hereafter Marshall]. See also Ontario, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: The Committee, 1993) at 31, Boucher v. The Queen (1954), 110 C.C.C. 263 at 270 (S.C.C.) and R. v. Savion and Mizrahi (1980), 52 C.C.C. (2d) 276 at 289 (Ont. C.A.).

[39] Marshall, ibid.

[40] Although issued in November 2001, apparently no one has ever complained pursuant to this right.

[41] Practice Memorandum to Crown Counsel, Criminal Law Division, Re Charge Screening, PM [2002] No. 5 (1 October 2002). See also Practice Memorandum to Crown Counsel, Criminal Law Division, Re Recanting Witnesses, PM [2002] No. 7 (1 October 2002).

[42] See OPPA, Press Release, "OPPA Welcomes Withdrawal of Charges Against Officer" (23 October 2002).