Toronto Police Accountability Bulletin No. 33, January 8, 2007

January 8th 2007

Special issue on Bill 103, the proposed police complaints process
1. Public hearings on Bill 103
2. Commentary on Bill 103

Toronto Police Accountability Bulletin No. 33, January 8, 2007

This bulletin is published monthly by the Toronto Police Accountability Coalition, a group of individuals and organizations in Toronto interested in police policies and procedures, and in making police more accountable to the community they are committed to serving. Our website is http://www.tpac.ca
Special issue on Bill 103, the proposed police complaints process

1. Public hearings on Bill 103
2. Commentary on Bill 103
3. Subscribe to the Bulletin
1. Public hearings on Bill 103

The Ontario Legislature has agreed to allow the Standing Committee on Justice Policy to hold hearings on Bill 103, which implements the LeSage Report establishing a new process for complaints against the police. The hearings have been scheduled for Tuesday January 30, Wednesday January 31 and Thursday February 1. At the present time all hearings are scheduled to be held at Queens Park, Toronto.

Those wishing to make a presentation to the Committee must notify the Clerk of the Committee, Anne Stokes, by January 15. She can be reached at 416 325 3515, anne_stokes@ontla.ola.org .

Unfortunately, unlike City Hall practice, there is no `right to make a presentation to the committee. Instead, the committee reviews requests and decides who it will hear from and who it will not hear from. These decisions are often made according to which speakers the three political parties think will assist their own causes, rather than trying to ensure the public has its say.

Decisions about who will be permitted to speak are also affected by the time available and by the number of minutes allocated to each speaker. For instance, it is not clear whether the committee will agree to sit for the whole of each day, or whether hearings will be held only in the afternoon. Often 30 minutes is allocated for each speaker, which means the speaker takes 10 or 15 minutes, with the politicians asking questions for the rest of the time  questioning often done to advance a political agenda rather than to elicit information from the presenter.

It is to be hoped that the Committee agrees to hear from anyone who wishes to present. If for some reason your request to present is not honoured, please let us know. (Our email is at the end of the Bulletin.)

Ministry staff was asked about why there was no publicity for these hearings, given the importance of this issue, and why hearings were scheduled only in Toronto, given this affects the whole province. The response was that the matter has had much consideration since the LeSage report was released 20 months ago, and that the Bill proposes to adopt most of his recommendations. If there is a strong demand for hearings outside of Toronto, staff say it seems possible one of the three days might be used for that purpose.

The committee chair is Lorenzo Berardinetti, LIB, Scarborough Southwest; vice chair Maria Van Bommell, LIB, Lambton-Kent-Middlesex. Other members are:
Bas Balkissoon, LIB Scarborough-Rouge River (he was on the Toronto Police Services Board five or six years ago, and was relatively outspoken at the time); Christine Elliot, PC, Whitby-Ajax; Frank Klees, PC, Oak Ridges; Peter Kormos, NDP, Niagara Centre; David Orazietti, LIB, Sault Ste. Marie; Shafiq Qaadri, LIB, Etobicoke North; and David Zimmer, LIB, Willowdale.

The Committee can amend the Bill, but generally only amendments favoured by (and presented by) the government are recommended by the Committee. It is unusual for Committees to make far-reaching amendments to legislation. This means that the best chance for making large amendments to the Bill will happen only if a number of presentors make the same general criticisms in their own words so that government members realize there are problems they should address.

2. Commentary on Bill 103

Bill 103, introduced last April, establishes a new police complaints process, generally as recommended by Mr. Justice Lesage in April 2005, but with some notable changes.

The position of an Independent Police Review Director is established. The Director will, with his/her staff, manage complaints against the police, either referring them to a police force for investigation (with report back to the Director and monitoring) or undertaking the investigation him/herself. The Director must be a civilian. The Bill contemplates the establishment of regional offices, although there is no reference (as Lesage had suggested) to regional Advisory Committees of reaching out to Aboriginal communities. The Director is also responsible for educating the public on the complaints mechanism, and for assisting members of the public in filing complaints.

Anyone may file a complaint, including third parties and relatives and friends of those involved in an incident. Systemic behaviour and police policy are valid items for complaint. Complaints should be filed within six months of the incident occurring, although complaints filed after six months, in the discretion of the Director, might be accepted.

Complaints will be categorized by the Director as relating to policy, service or conduct of an officer. Complaints about policy or service must be reviewed by the chief of the police force involved, but there is no requirement for a full independent investigation. Complaints about conduct are either investigated by the Director or referred by the Director to the chief who must ensure the complaint is investigated. The Director must be informed of the disposition of all complaints and investigations. Appeals on questions of policy and service are to the appropriate local police services board. Appeals on questions of conduct are to the Director, and a hearing may be held.

The Bill makes it clear that attempts will be made to find ways to resolve complaints, and where that is not possible then a hearing can be held. The burden of proof at the hearing is clear and convincing evidence. The levels of proof at earlier stages are much more vague  the words used are unsubstantiated and believes on reasonable grounds.

The Director may not hire police officers as investigators, although there is no restriction on former police officers serving as investigators. It is an offence to harass complainants; misconduct is defined to include political activity.

There are a number of concerns with the current Bill.

The Bill does not guarantee that an independent investigation will be done. In fact the assumption of the Bill is that most complaints will be referred by the Director to the police force involved and be investigated by that force  a process which hardly differs from the present situation. Since speed and early response are important to accurate investigations, this is a reason for concern. It is of little assistance to know that after the police have completed their investigation  perhaps taking two or three months  the police report will be submitted to the Director who can then wonder whether the investigation has been done in a satisfactory manner. By that time, so much time has passed that it will be impossible to do a reasonable investigation. The lack of a guarantee of an independent investigation from the day the complaint is filed seems to be one of the Bills serious limitations.

The Bill is silent about the percentage of investigators working for the director who are former police officers. The worry here is that police culture also affects former officers, who can hardly be considered `independent from that culture. Lesage had suggested a maximum of 50 per cent should be former officers, but the Bill contains no such limitation.

LeSage had proposed local advisory boards responsible for public outreach and local accountability  generally acting as civilian overseers - but the Bill does not contemplate these bodies, or authorize their establishment. Instead, virtually all of the complaints process, including the extent to which the public knows about it, seems to depend on the decision of the Director, and s/he may not want to have strong local boards that push for accountability and a good public process. Given the difficult experience in Ontario with complaints against the police, it does not seem wise to leave the workings of the process in the hands of a single individual appointee.

The manner in which investigations are undertaken, and the extent to which mediation is a key objective, are not resolved by the Bill. Again, this appears to be left to the discretion of whoever is appointed Director.

These are a few of the more serious limitations of Bill 103 which the Committee will be sure to hear from presentors. It can be expected that some presentors will go into much more detail respecting problems with the Bill, although if these major issues are addressed by amendments, the Bill would be much improved.

3. Subscribe to the Bulletin

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Please circulate this Bulletin to friends and colleagues who might share an interest in policing. We appreciate your comments or suggestions for stories which should be sent to j.sewell@on.aibn.com.

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Toronto Police Accountability Coalition
E-mail: info@tpac.ca