Implementation of the Recommendations - The Review (Recommendations 9 to 17)

Recommendation 9:
The current subject/witness officer distinction should be preserved. The regulation will define subject and witness officers in current terms and provide that the SIU's assessment of who is a subject and who is a witness officer shall govern in any given case. Designated subject officers will not be compelled to submit to an SIU interview. Officers designated by the SIU as witness officers will be so obligated.

This recommendation has been implemented through several provisions of the Regulation. The definition of "witness officers", however, differs from the definition set out in the former SIU Standard Operating Procedure. The former procedure described witness officers as officers who are in a position to provide information about an occurrence being investigated while the Regulation defines them to be those officers involved in the incident under investigation. Surprisingly, this difference has apparently generated some debate as to who are witness officers and has been relied on by some police organizations to contest the SIU's designation authority. Such narrow parsing of the Regulation does not inspire community confidence and gives no scope to the requirement that such decisions are based on "the opinion of the SIU Director". Indeed, it is reasonable to think that the subject/witness officer designations do not exhaust those whose duty it is to cooperate. For example, there could be tertiary officers, like supervisors, who would not be involved in an incident, but with whom the SIU could reasonably want to confer.

The SIU has further reported that some police organizations have wrongly attempted to assert authority over the designation process. Declaring who is a subject or witness officer is the exclusive duty of the SIU. Problems relating to the designation process have also arisen when police services have adopted unduly restrictive and technical interpretations of the Regulation. For example, the SIU has been confronted on several occasions with police services that initially declined to provide the SIU with any information about an incident they reported, including the names of the involved officers, aside from the fact that an incident engaging the SIU's jurisdiction had occurred. The approach obviously delays an investigation. Fortunately, these situations are in the minority and have been resolved by the responsible chief or by the SIU pursuing or threatening to pursue a complaint. The Regulation is not exhaustive of the statutory duty to cooperate and police services continue to be under a general statutory duty to comply with all reasonable requests made by the SIU in the course of an investigation such as the provision of basic incident information at the scene.

Community groups when advised of such initial refusals have expressed the view that the subject/witness officer distinction should be eliminated. They noted that they only reluctantly agreed to formalizing the distinction in the original consultation and that the continuing challenges to the SIU's authority serve to compromise the integrity of its investigations. On the other hand, police associations have submitted that the designations are working and should not be changed. While more visible monitoring of compliance by chiefs of police is necessary, abuses are the exception and this aspect of the Regulation has very much facilitated SIU investigations.

Another issue that has been raised by the SIU and police groups is the issue of the treatment of individuals who are connected in some way to the provision of policing services and involved in an SIU investigation, but do not fall under the definition of a "police officer" in the Police Services Act or the Regulation. It is a "police officer" the SIU investigates under the Act and designates as either a subject or witness officer under the Regulation. Officers from other provinces and the Royal Canadian Mounted Police now often train with their Ontario counterparts. First Nations constables also provide substantial policing services in Ontario. Civilians now play a significant role in the provision of police services. While civilians are members of a police force and "members" have a duty to cooperate under s. 113(9) of the Act, the Regulation does not refer to civilian members of a police force.

The SIU's response to this gap has been to emphasize that all those who have a duty to cooperate and stand in a position similar to that of "witness officers" must cooperate with the SIU. The SIU Director has also undertaken that the Unit would not press for the cooperation of those in this group of non-police officers who occupy positions akin to "subject officers." The express undertaking to treat these non-police officers as if they were "subject" or "witness" officers under the Regulation with all the same rights and protections, and a reciprocal agreement on the part of the Ministry of the Attorney General to do the same in relation to its Directive to Crown prosecutors, have facilitated the cooperation of non-police officers. This framework, referred to as "analogous treatment", has been formalized in SIU Operations Order 001. Unfortunately, at least one police service has questioned analogous treatment notwithstanding that, without it, all civilian members might be ordered to cooperate by a chief of police with any failure to do so met with immediate employment consequences.

Anomalously, civilian members of the OPP stand in a position that is distinctly different from civilian members of municipal police services. They, in fact, are specifically excluded from the definition of a member of a police service in the Police Services Act. The reason for this exclusion is not entirely clear, but it is speculated that it results from their former membership in the Ontario Public Service and Employees Union. It has been argued that the effect of the definition is that there is no obligation for these individuals to cooperate with an SIU investigation. This is the position taken by the OPP and the OPPA. However, it can just as reasonably be argued that the OPP, as employer with its own duty to cooperate, can and must require the cooperation of its own civilian employees. Analogous treatment is a pragmatic response by the SIU. One would expect an equally pragmatic response from a police community concerned about community confidence.

However, it is probably best not to leave these important obligations to debate. Civilian employees should be obligated to cooperate but should also be accorded the same protections of the Regulation as accorded to police officers. There is no objection to making clear the responsibilities of OPP civilian employees and those of other services. It is a reality that aspects of what we think of as traditional policing are increasingly becoming the work of civilians employed by police services. Communication centres and the booking, monitoring, transport and feeding of detainees in police cells all illustrate this tendency.

In respect of First Nations officers and Special Constables, the Crown and the SIU have similarly joined in an undertaking for analogous treatment for all purposes. Some chiefs of police have argued that First Nations officers and Special Constables should not be treated any differently from police officers and that the legislation must be changed to remedy this disparity. Others, however, have been concerned about any possible implications for First Nations and Aboriginal self-government. Consultation with the Union of Ontario Indians might be a useful step in bringing more consistency to this important area of Aboriginal policing. Based on my discussions with the Nishnawbe Aski Nation, for example, I would be surprised to learn this issue of coverage cannot be satisfactorily resolved. In the case of non-Ontario members of police services, such as the RCMP, discussion with the appropriate senior official has, to date, proven effective in securing cooperation. A protocol between the SIU and the RCMP to formalize this process of cooperation is currently in contemplation between the respective organizations.

Recommendation 10:
The Attorney General should direct Crown counsel by means of a Crown policy that a police officer's statement obtained by the SIU in a compelled interview is an involuntary statement. In light of this fact and requirements of the Charter, the policy shall provide that neither the statement nor any evidence that would not have been found but for the statement will be used to incriminate the officer in any subsequent criminal proceeding. The policy should also recognize that the statement cannot be used for the purpose of impeaching credibility, but these immunities would not apply in any prosecution concerning the intentional giving of a false statement.

This recommendation has been implemented by means of a Directive issued on December 23, 1998 by the Attorney General. The SIU reports that, since January 1, 1999, the matter of a compelled statement from a subject officer (an officer who had been previously designated as a "witness officer" at the time of the making of the compelled statement) being even considered for use against the officer has not become an issue in any case where charges have been laid.

To avoid the issues inherent in "witness to subject redesignations" arising, whether charges have been laid or not, the SIU has, out of an abundance of caution, initially given preference to designating an officer as a subject officer, if there is any doubt as to his or her role. While this process has resulted in a number of "subject to witness redesignations", it has to date confined "witness to subject redesignations" to a very few cases. The SIU reports that this has only occurred in 7 out of 617 cases and out of at least 3085 designations since January 1, 1999. To safeguard the designation process, by practice, redesignations must be authorized by an Investigative Supervisor, the Executive Officer or the Director.

The police, however, have complained about the SIU's preference for subject officer designations and subsequent redesignations. Such a practice has attracted the criticism from the police who allege the designation is used to simply cause upset to a particular officer. To address even this concern, the SIU has adopted a practice of "standing aside" officers to whom uncertainty attaches until the matter can be resolved. This alternate practice has generally been preferred to an uncertain subject officer designation.

A number of issues have also arisen concerning the Directive. The Directive's reference to statements received in a police chief's administrative inquiry is not qualified by a reference to the statements of the charged officer and this has attracted criticism that the Directive is unnecessarily broad. By merely referring to a police officer's statements, it is worried that the Directive might be construed to prohibit the use of a police officer's statement in a subsequent criminal proceeding, even where that proceeding is not against the statement giver. It has been submitted that this part of the Directive needs to be clarified. It has also been noted that the word "compelled" in the Directive is not defined and that the word would best be defined.

Recommendation 11:
The regulation should stipulate that an officer is entitled to representation by legal counsel and/or a police association, provided the availability of such advisors will not lead to an unwarranted delay.

This recommendation has been implemented in s. 7 of the Regulation. Every police officer is entitled to have legal counsel or an association representative present during his or her interview. The SIU Director has the power to waive this right, if waiting for representation would cause an unreasonable delay. As the issues pertaining to representation by legal counsel have been discussed elsewhere (in particular Recommendations 4, 8 and 12), they will not be repeated here with one exception. Community representatives argued that, on the surface, this change is now relied on by the OACP to put their own 1991 definition of "serious injury" in dispute. They submitted that if payment for representation rights has become integral to police officer acceptance of the duty to cooperate, those costs have also become essential to civilian oversight.

Recommendation 12:
The regulation should provide that interviews of witness officers are to be generally forthwith at the request of the SIU, but also allow for the possibility of delay where appropriate grounds exist. An unjustified failure to comply with an SIU interview request should be treated as a serious act of misconduct.

This recommendation has been implemented in s. 8 of the Regulation. The section provides that a witness officer shall immediately upon being requested to be interviewed by the SIU, and no later than 24 hours after the request where there are appropriate grounds for delay, meet with the SIU and answer all its questions. The interview request must be made in person, but the SIU Director may waive the time requirement.

The SIU reports that arranging witness officer interviews in a timely fashion continues to be a difficult matter. As discussed earlier, where little or no, and sometimes contradictory information regarding the roles of various officers is provided by the police service at the outset, the designation of officers and resulting interviews must be delayed by the SIU. Also, incidents of officers being released from duty or simply going off duty on sick leave as a result of alleged stress have made it difficult for the SIU to interview them. Troubling also is when a police service takes the view that contact information of officers is personal information and refuses to provide this information to the SIU. Interviews can also be delayed by the witness officers insisting on the right to representation and the unavailability of the counsel of their choice. As a consequence, the SIU has resorted to adopting a procedure, agreed to by the police services and associations, whereby designation letters are delivered to the chief's designate for service on the officers in question. Upon service, efforts to arrange an interview are undertaken. This procedure, of course, does not avoid the delay that has already resulted.

Although investigative standards do not require every witness to be interviewed immediately and most issues that have arisen have been generally resolved through discussion, it appears that the SIU, in a growing number of cases, has had to threaten the initiation of a complaint and/or of the waiving of the right to counsel to obtain timely interviews. In one instance, a lawyer for a police association has actually insisted that witness officers may be interviewed by the SIU only after 24 hours notice. However, in this case, the police service has stated that it is attempting to resolve this misunderstanding of the Regulation with that police association's lawyer.

Community reaction was directed at chiefs of police. Community leaders asked how they could rely on chiefs to enforce the duty to cooperate when they will not censure officers who intentionally delay interviews or, worse, actively support them. Several community groups believe public prosecutions under the Provincial Offences Act [26] would provide a better sanction. They also worry that compliance seems increasingly to be at the convenience of police whereas the Regulation sets strict time lines and gives real power to the Director to enforce them.

This is probably not the time to give up on the chiefs' role in enforcing the duty to cooperate. I believe the existing problems on cooperation can be overcome within the current framework. However, these issues are serious. They demand an immediate and committed effort by the chiefs of police and the SIU in addressing them.

Recommendation 13:
Regulations should provide for oral interviews to be recorded manually. A copy or transcript of the interview must be provided to the officer following the interview on appropriate conditions.

Section 8 of the Regulation has given effect to this recommendation. The obvious delays related to the manual recording of interviews appear to have led to many informal agreements between the SIU and the police to completely abandon this method of recording in favour of interviews recorded on audiotape and videotape. Delays associated with manual recording now appear to be used as leverage or a bargaining tool by both the SIU and the police to negotiate solutions to other disagreements that may arise from an investigation. This issue, however, can contribute to excessive legal costs where manual transcription is insisted upon, because it can be the difference between a one-hour and a six-hour lawyer's charge. The manual approach was recommended as an introductory step. Therefore, to bring this area into line with judicial admonitions, [27] appropriate technological recording should be required and cannot be seriously resisted by anyone.

Recommendation 14:
The regulation should confirm that witness officers must complete their notebooks in full as currently required and police services must provide such notebooks to the SIU forthwith upon request, but subject to the same procedures and Crown policy applicable to their oral statements. Subject officers shall also continue to be required to complete their notebooks in full and to provide them to their police services, but they shall not be provided to the SIU. Subject officers, by a Crown policy, will also be assured that their notebook accounts and any evidence that would not have been found but for their notebook accounts will not be used to incriminate the officers in any subsequent criminal proceeding. The policy should also recognize that the statement cannot be used for the purpose of impeaching credibility, but the immunity would not apply in any proceeding concerning the giving of a false statement.

This recommendation was implemented by s. 9 of the Regulation and the Attorney General's Directive of December 23, 1998 to Crown prosecutors. It is apparent that s. 9 and the corresponding protections contained in the Directive have greatly improved the ability of the SIU to secure witness officers' notebook entries related to an incident in a prompt fashion. A few difficulties, however, remain.

Where the status of involved officers is not immediately apparent, the requirement in s. 10 of the Regulation for officers to be notified of their status as "witness officers" before a request can be made by the SIU for an interview or a copy of their notes leads to delay. This is especially problematic in those instances where police services decline to provide the SIU with even basic information regarding the identities and roles of officers involved in an incident. The SIU reported that there have been some occasions where officers once designated have failed to complete their notes promptly after an incident in compliance with their duty as a result of alleged stress. [28] In some cases, officers have received legal advice to refrain from completing their notes until they have consulted with their lawyers. This is very problematic. It has also been noted that there is a lack of consistency amongst police services on the requirement of the completion of notes at the end of each shift.

There also appears to some confusion surrounding the terms "notebooks", "notes" and "reports" as they are used in my 1998 report, the Regulation and the Attorney General's Directive. My report uses the terms "notebooks" or "notebook entries", while section 9 of the Regulation uses the language of "notes." The Attorney General's Directive extends the evidentiary immunities set out in it to "notes and reports". Instead of seeing all this as the result of drafting conventions where broadly synonymous words are used, some police services have taken the overly technical view that "notes" as used in the Regulation extends beyond mere "notebooks" and captures a wide range of police records. Others have taken the view that all records created by or containing information of subject officers, regardless as to when such records were made, are exempt from disclosure to the SIU under the terms of the Regulation. This latter view has even been used to support not providing the SIU with a police dog's training and service record because many of the entries were made by the subject officer who was also the dog's handler.

In response, the SIU has expressed its position that "notes" in the Regulation means "notebooks" or "notebook entries." Crown counsel is also concerned that the term "notes" has been contended at times to extend to materials prepared before the incident. Thus, if the officer had contact with the complainant on a prior date and had prepared written materials, the police service might take the position that those are the officer's "notes" and not turn them over.

Many of these concerns, however, are theoretical in nature. There is, therefore, the danger of trying to answer hypothetical questions without the benefit of actual facts and reasoned argument. Many issues are also now being formally explored in discussions between the SIU and the OACP where progress is being made. While the Charter is ever present and privacy legislation cannot be ignored, no one should be interested in uncertain legal contests when voluntary compliance within these laws is obviously possible and the needed confidence of racialized communities is considered. These matters and any changing practices in the way in which police officers record their activities should be easily accommodated within the purpose of the existing legal framework and, in particular, the words used.

Recommendation 15:
The regulation should require a chief of police to conduct an administrative inquiry forthwith into any incident involving the SIU, subject to the SIU's lead role in gathering evidence and interviewing witnesses. The chief of police shall make a report of all findings and actions taken and/or recommended to the police services board no later than 30 days following the issuance of the SIU report. The regulation will confirm that all involved officers must cooperate forthwith with this internal investigation subject to the existence of a Crown policy directing Crown counsel that a police officer's statement obtained in a compelled administrative or disciplinary interview is an involuntary statement. In light of this fact and the requirements of the Charter, the policy will provide that the statement and any evidence that would not have been found but for that statement will not be used to incriminate the officer in any subsequent criminal proceeding. The policy should also recognize the statement cannot be used for the purposes of impeaching credibility, but these immunities would not apply in any prosecution concerning the intentional giving of a false statement.

This recommendation has been implemented in s. 11 of the Regulation, which requires the chief of police to conduct an investigation to "review the policies of or services provided by the police force and the conduct of its police officers." The prohibition on the use of compelled statements produced in the course of the chiefs' investigations was addressed in the Attorney General's Directive. This Directive has been discussed above and the concerns with it being overly broad revewed.

As reviewed under Recommendation 7, the SIU adopted a policy of active cooperation with s. 11 investigations to the extent possible without compromising SIU operational imperatives. This policy is articulated in SIU Operations Order 004. However, as was pointed out earlier, police services have argued that evidence gathered by the SIU that could assist in a parallel criminal investigation or in a chief's s. 11 administrative investigation is frequently denied to them. They also complained that the Office of the Chief Coroner has not granted them access to autopsies in certain circumstances. Particular examples of real barriers to effective s. 11 investigations were not tendered. The concerns were more those of convenience and achieving a tactical advantage.

Cooperation between the SIU and police services has been further complicated by the fact that the SIU Director appears to report to the Attorney General even in cases where the Director has laid charges. Where a report is made to the Attorney General, chiefs of police must complete a s. 11 investigation within 30 days of the Director reporting to the Attorney General. But proceeding with a s. 11 investigation when criminal charges are being pursued could have an adverse impact on the criminal trial. My original recommendation was based on the assumption that the SIU Director did not report to the Attorney General when charges had been laid and the partnering belief that police services would, in the ordinary course, conduct an administrative investigation following a criminal trial. Chiefs of police also advised that s. 11 investigations are now immediately performed as a matter of course in all cases. Clearly, better sequencing of s. 11 investigations need to be reviewed and the SIU should consider whether it must report to the Attorney General where charges have been laid.

Chiefs of police have reported that the results of s. 11 investigations have led to positive changes in the policies of police services and in training. They have also led to the discipline of police officers. Unfortunately, police services boards are not making the s. 11 reports of chiefs of police available to the public notwithstanding that it is expressly permitted by the Regulation. Accordingly, community groups questioned whether chiefs of police were taking their s. 11 reviews seriously. For example, I was asked whether there have been any disciplinary proceedings commenced as a result of these investigations and, in particular, arising out of an alleged failure to cooperate. It would enhance public confidence if police services boards would commit to more transparency in this respect. Privacy concerns can be dealt with by judicious editing. I also note that the SIU, in its media releases, sometimes suggests areas for chiefs of police to review and ready acceptance of chiefs of police to do so has been well received by affected communities. [29] The duty to cooperate should be one perspective reported on in every administrative review.

Recommendation 16:
The written report of the SIU should be made public where no charges are laid. If need be, the Police Services Act should be amended to provide for its release notwithstanding the Freedom of Information and Protection of Privacy Act.

This recommendation was not implemented. In my previous report, I stated that there was broad agreement among the parties that the SIU Director's report to the Attorney General should be made public (assuming no charges are laid) and that a public report was central to providing the necessary accountability and community confidence. It was also suggested that concerns about personal information might be accommodated by the appropriate editing of the written report prior to release. I understand that after the original recommendation was made, some parties expressed reservations with the proposal and that barriers arose due to the perceived need for legislative amendments to the Freedom of Information and Protection of Privacy Act [30] and Municipal Freedom of Information and Protection of Privacy Act. [31] However, I must report that the parties have again agreed that the issue be reviewed. Nonetheless, it must be acknowledged that it is not our practice to publicly release police investigation results. [32] There may also be the concern for how such SIU information might be used or received given the civil litigation that often surrounds incidents attracting SIU involvement. The SIU is also troubled over how release of its report would impact on its perceived need for confidentiality in obtaining the cooperation of certain witnesses. Nevertheless, both the police and community groups see value in the Director's report being available to the public when no charges are laid against a police officer. Many in an affected community will want to know why and police services believe the reports can clear the air in respect of their involvement. While community groups recognize the competing concern of the SIU's confidentiality policy, they trust that appropriate editing could accommodate this interest while still achieving the public interest in disclosure.

Under the current legislative framework, the SIU has significantly helped to close any "information gap" by issuing detailed media releases at the conclusion of non-charge investigations [33] and by personally debriefing injured persons and, in the case of death investigations, affected families. Debriefings are also available to officers and police services. Where the level of media attention has been particularly significant in respect of an incident, the SIU's Director has participated appropriately in press conferences held in the affected communities. As previously noted, the SIU has also instituted an "external case review" program. This is a voluntary process by which the involved police service is invited to discuss all aspects of, and concerns related to, an investigation. This approach appears to be an important innovation in police service/SIU dialogue.

Community groups have expressed the desire for the SIU Director to have the authority to comment and make recommendations to police services regarding various police service policies that, in his opinion, could lead to improvements in policing, police training and other issues of professional standards. Police groups and the Office of the Chief Coroner have, however, cautioned against such a formal expansion of the Director's already challenging mandate. The police community has stated that issues related to professional standards and police training fall within the jurisdiction of chiefs of police where there is great expertise. The Office of the Chief Coroner also noted that the SIU's mandate to make determinations solely regarding criminal liability may impede its ability to gather all the pertinent facts for informed comments and recommendations on other policing matters. Obviously, the SIU has acquired from its investigations understanding and expertise in policing practices. However, the caveats raised with me are not without merit. The approach of more informal suggestions to the police of areas for possible review sometimes made by the SIU in its concluding media statements is probably a good compromise. [34]

Recommendation 17:
Following the occurrence of an incident, a police service shall only advise the public that the SIU is involved. The SIU will be responsible for all public communications concerning the investigation. SIU public statements about an incident during an investigation will be aimed at preserving the integrity of the investigation.

This recommendation was implemented in sections 12 and 13 of the Regulation, which are directed at police services and the SIU, respectively. The restriction regarding public communications stems from the history of inappropriate comments made during the course of SIU investigations. The Regulation has worked. The situation has improved immeasurably. All stakeholder groups have now generally accepted this rule, including the SIU. The SIU and the police services have worked cooperatively on approaches to police communications aimed at preserving the integrity of a SIU investigation while meeting the needs of an affected police service and the public's right to information. Reference can be made to the SIU's Operations Order 015 governing news media releases and the SIU Director's 1999 letter to all chiefs of police.


Footnotes:

[26] R.S.O. 1990, c. P.33.

[27] See R. v. Lim, [1990] O.J. No. 940 (Ont. S.C.) and R. v. Moore-McFarlane (2001), 56 O.R. (3d) 737, [2001] O.J. No. 4646 (Ont. C.A.).

[28] The increasing reliance on stress by police officers for not being available to SIU investigators, while civilians who were involved in the same incident are required and willing to be available for immediate questioning, can undermine public confidence. Chiefs of police must be vigilant in reviewing the bona fides of such claims.

[29] See, for example, SIU, News Release, "SIU Concludes Investigation into Fatal Kemptville Collision" (9 December 2002).

[30] Supra, note 14.

[31] Ibid. See, for example, London Police Services Board (18 January 1996), Order M-593 (I.P.C.)

[32] Privacy interests presumptively militate against disclosure of personal information compiled as part of a police investigation. See s. 14(3)(b) of the Municipal Freedom of Information and Protection of Privacy Act, supra note 14.

[33] See supra note 29.

[34] See supra note 29.