Thursday 3 June 2010

Third-party representation re police complaints

The idea that the police are a law unto themselves is unacceptable in a democracy that prides itself on restraint in the use of coercive state-sponsored force and on accountability for the use of such powers.

There are 60 municipal police services in Ontario. The Ontario Civilian Commission on Police Services (OCCOPS) is an arm’s length, quasi-judicial agency, OCCOPS is a responsibility of the Minister of Community Safety and Correctional Services. Among its many roles, it may review police chiefs’ decisions on public complaints and hear appeals from police disciplinary hearing decisions.

The Special Investigations Unit (SIU) is an independent, civilian law enforcement agency and operates at arm’s length from the then Ministry of the Attorney General. Established in 1990 and governed by Part VII of the PSA, the SIU’s mandate is to investigate police incidents involving serious injury or death

Mr. Justice Patrick J. LeSage was retained by the then Ministry of the Attorney General to review the current system of dealing with public complaints regarding police conduct and to advise on the development of a model of resolving public complaints against the police, to ensure that the system is fair, effective and transparent.

What follows is excerpts from his report of April 22, 2005. Please pay attention to his reference to third-party complaints as this is actually the basis of this article. Following the excerpts from Mr. Justice LeSage’s report, I will include the entire address I gave before the Justice Policy Committee of the Ontario Legislature in 1997 in which I dealt solely on the issue of third party complaints against police officers. And now; Mr. Justice’s report.

Police chiefs administer their police force’s complaints systems. The complaints system did see some changes in 1978 when a new complaint-handling procedure was voluntarily adopted by many local Boards of the Commissioners of Police (the predecessors of today’s police services boards). Under this procedure, complaints against a police officer were investigated by the officer’s own police service and the chief of police was responsible for deciding the disposition of the complaint. After the complaint was disposed of, a complainant could request a hearing before the local Board of Commissioners of Police, which had the power to recommend that the chief take further action. If dissatisfied with the result of such a hearing, the complainant could then apply to the Ontario Police Commission (now OCCOPS), which could then order an investigation if it considered the matter to be of sufficient importance. Still, these new procedures were considered inadequate, particularly within Toronto.

In 1981, the provincial government responded to the dissatisfaction in Toronto by enacting the Metropolitan Toronto Police Force Complaints Project Act, 1981 which established a unique complaints system in Toronto on a trial basis. Under the Act, the Toronto Chief of Police was required to set up a Public Complaints Investigation Bureau to receive, record, and investigate complaints and inquiries. A civilian Public Complaints Commissioner would monitor and review the Bureau’s investigations. The Commissioner also had independent investigative powers. A Public Complaints Board conducted hearings of matters referred to it by the Toronto Chief of Police or the Commissioner.

This experimental system, with minor alterations, was made permanent in 1984. Six years later, the “Toronto System” became a Province-wide system with the passage of the Police Services Act, 1990. Under this legislation, all police services in the Province were required to establish Public Complaints Investigations Bureaus (PCIB’s), although police services with fewer than 20 officers had the option to use the PCIB of another police service.64 The Public Complaints Commissioner was renamed the Police Complaints Commissioner (PCC) and was given province-wide authority. The Public Complaints Board, which had been replaced by ad hoc boards of inquiry in 1984, evolved into the permanent Board of Inquiry in 1992.

Members of the public were able to make complaints, including third-party complaints, either to the PCIB, PCC, or at any police station, bureau, or detachment.

Following PCIB or PCC investigations, final reports were presented to chiefs of police for disposition. Chiefs were entitled to dispose of matters in a number of ways: by taking no further action, admonishing an officer, holding a disciplinary hearing, ordering a Board of Inquiry hearing, or laying criminal charges. A decision on disposition was required within six months of receiving a final report and notice was to be given to the PCC, complainant, and officer. If a chief did not provide notice of a decision within six months, he or she would be deemed to have taken no further action.

Upon the request of the complainant, the PCC could review a chief’s decisions to admonish or take no further action.

Under the current system, Part V of the PSA governs the handling of complaints about police. Members of the public are able to complain about the conduct of particular officers or the policies and services of a police service.

Third-party complaints are not allowed under the legislation. Complaints may be hand-delivered or sent by mail or fax. They must, however, be in writing and must be signed by the complainant. Complaints may be made at police stations or detachments of the police service complained of or to OCCOPS. Complaints made to OCCOPS are forwarded to the chief of police of the police service to which the complaint relates for handling.

A chief may decide not to deal with a complaint that is frivolous or vexatious or made in bad faith. A chief may also decide not to deal with a complaint made more than six months after the fact. As previously noted, third party complaints are not allowed.

The police have made few attempts to make the complaints system user-friendly, and I was told that only the most educated and determined complainant would be able to successfully find their way through the process. Even those complainants who possess these characteristics told me they were surprised by the obstacles they encountered. Many said that their experiences with the system have left them frustrated and angry. I have heard that most people have given up on the system and have instead sought redress through the civil court system or the Ontario Human Rights Commission.

Community groups submitted that a legitimate complaints system cannot be based on a process where a complaint about a police officer must be filed with the police. Not only are police stations intimidating, but I frequently heard that those who have wished to make a complaint have sometimes been discouraged by the police in doing so. Some complainants said that they were threatened with reprisals, and others reported that the police had warned them that they could be charged with public mischief if their complaint was determined to be unfounded. In a similar vein, some complainants stated that they became the subject of the investigation following the filing of a complaint. I was also told that other systemic barriers to the filing of complaints include requirements for written and signed complaints, the prohibition against third party complaints, the unnecessary characterization of complaints as policy or conduct complaints and the six-month limitation period in which to file a complaint.

The writing requirement, it was argued, discourages those who do not have the requisite writing or comprehension skills for making complaints. It is also a barrier for those who are not capable of communicating in English or French.

The prohibition against third-party complaints was raised as a significant problem. Although some acknowledged that it may not be appropriate for just anyone to file a complaint (for example, there were some doubts as to whether someone who read a newspaper report alleging police misconduct should be allowed to file a complaint), it was widely recognized that the right to complain should not be limited to those who are directly affected by the actions complained of. Most community groups proposed that any witness of police misconduct should be allowed to file a complaint. Others argued that advocacy groups should also be able to file a complaint especially in situations where the person or persons who are directly affected are unwilling or unable because of physical, mental, or other circumstances to file a complaint on their own behalf and where there appear to be systemic problems regarding policing practices. Still others argued that anyone should be able to file a complaint and it should be up to the persons receiving the complaint to decide on whether to act upon it.

The current six-month limitation period to file a complaint was also the subject of criticism. Many thought that such a limitation period, commencing from when the facts on which the complaint is based occurred, was unfair to those who have been charged. Some lawyers who have acted for these complainants have stated that they would prefer a longer limitation period or that the limitation period commence running only from the time outstanding criminal charges have been disposed of so that potential reprisals for laying a complaint (such as the laying of additional charges) are avoided. Others argued that there should be no limitation period at all, noting that complaints to many professional bodies are not time-limited. Although there is discretion in the current legislation for chiefs to waive the limitation period, it was suggested this is rarely, if ever, done.

In addition to the barriers to access the system, most community groups said that the investigation of a complaint by the same police service as the subject of the complaint raises significant concerns over the legitimacy and integrity of the investigation. Many felt that investigators within the same police service cannot be objective in the investigation of civilian complaints and that a police culture of protecting fellow officers eliminates any capacity to carry out thorough investigations. Even where the investigations are rigorously conducted and are fair, the perception of taint and unfairness will always exist.

The police emphasized that any changes should not result in a lengthy, expensive and overly bureaucratic process. Complaints need to be dealt with efficiently and they felt that allowing third-party complaints might risk overwhelming the system with complaints that should not be pursued.

Although complainants may file a complaint by sending a complaint to the police or OCCOPS by mail or fax, I believe that many complainants are simply unable to effectively draft a complaint without assistance. As a result, many complainants are likely to prefer to file a complaint in person. Yet filing a complaint about the police is inherently different from filing a complaint against a department store. There is an understandable reluctance to file complaints regarding those in authority by going directly to the authority. This is especially true if the perception is that the filing of a public complaint with the police will turn into an investigation of the person making the complaint, rather than the complaint itself. Other avenues for filing a complaint are necessary.

The current system does not allow third-party complaints. While there was considerable debate as to whether third-party complaints should be allowed, it is obvious to me that the current rule needs to be changed. I also consider it significant that some chiefs of police have advised that despite the Act, they will, quite rightly, consider third-party complaints as part of their duty to manage the police service. I believe that the system should not bar outright third-party complaints.

It must be clear that any person who makes a complaint or is responsible for the handling of a complaint must not be harassed, intimidated or retaliated against for making or handling that complaint.

The following is an address I gave before the Justice Policy Committee of the Ontario Legislature on May 12, 1997. It is quoted directly from Hansard, (the traditional name for the printed transcripts of parliamentary and legislative debates)

The Chair (Mr Gerry Martiniuk)
: Good afternoon, ladies and gentlemen. This is a continuation of the hearings on Bill 105, the Police Services Amendment Act, 1997.
The Vice-Chair: The next presenter we have is Dahn Batchelor. You have 15 minutes to use as you see fit. If you don't use all that time up, we will use it up asking questions. Thank you very much.

Mr Dahn Batchelor: I am appearing here as a private citizen, but just to give you some idea of my background, I studied criminology at the University of Toronto from 1970 to 1974. I studied forensic science at the Forensic Science Centre from 1974 to 1975. I have been an adviser to the United Nations on criminal justice since 1975 and presently hold that position. I have addressed the United Nations 15 times on criminal justice. I am the father of the United Nations standard minimum rules of juvenile justice which all young offenders acts derive from.

I assisted the country of Botswana re the selecting of their training manuals for their police forces. I was a fraud investigator for Centurion Investigations from 1975 to 1976, a syndicated newspaper columnist from 1976 to 1983 and wrote a weekly and daily column on the law. I was an associate editor of Canadian Police News from 1983 to 1986, a group counsellor to the ministry of corrections from 1976 to 1983 part-time, and I've been practicing criminal law in the criminal courts from 1964 to the present.

I have had an opportunity to study Bill 105 and wish to address some of the concerns I have about this bill. I will draw your attention to part V, which deals with complaints.

Section 56 states: "Any member of the public may make a complaint under this part about...the conduct of a police officer." Now there is an exception to the words "any member of the public." That exception is found in subsection 57(1), which states: "A complaint may be made by a member of the public only if the complainant was directly affected by the policy, service or conduct that is the subject of the complaint."

Imagine this scenario if you will: A careless and indifferent police officer doesn't call the victim back after investigating a hit-and-run case and the victim not only has great difficulty in understanding English but also comes from a country where police indifference is the norm, so he does nothing. He knows it's wrong for the police to treat him in such an indifferent manner but he is too terrified to complain.

He calls upon a friend who might be a person who speaks good English, or a paralegal or a lawyer, and tells this person what occurred. For argument's sake, let's say that his friend is a paralegal whom he met previously when he thought he had immigration problems. His paralegal friend knows that this particular officer was wrong in what he did and feels that this officer's conduct should be brought to the attention of the police force.

The paralegal, along with many other citizens, is knowledgeable in the law and in police practices and, as such, is able to prepare a proper complaint to the police, a complaint that they will fully understand. It will include a statement of facts signed by the complainant and a summary of the paralegal's views on the police officer's failings and what was expected of him. In the course of the inquiries, the paralegal learns that although the police officer did conduct an investigation of the hit-and-run incident, he neglected to call the victim back to tell him of his investigation and give him his conclusions.

The officer complained about, having been reminded by a superior officer of his duty to the victim, calls the victim back and tells him that he investigated the hit-and-run accident, but because the driver of the other car lived in Barrie and sounded like he was in his late 60s, he decided not to ask the driver of the car to drive to Aurora, 50 kilometres south. Instead, he asked him to tell the officer on the phone if there were any scratches, dents or marks on his car to show that he had been in an accident. The subject driver, as expected, says that there aren't and the officer then concludes that the subject driver is probably not involved in an accident. The case is closed.

Now anyone with any common sense knows that is a sloppy way to investigate a hit-and-run accident. Since the accident occurred 90 kilometres south of Barrie, it really shouldn't be a problem for the subject driver to drive to Aurora to have his car examined since Aurora is only 50 kilometres away. If that was a problem, the officer could drive to Barrie or have a police officer in Barrie conduct the examination of the subject car in Barrie.

Such an officer as I have described would be very stupid, lazy, incompetent and negligent. The complainant would sense that, but being from a country where the police officers are brutal, the complainant doesn't dare question the police officer's intelligence, knowledge or ability and accepts the incident as an unfortunate occurrence in his life.

Now you and I wouldn't stand for this one bit, but there are thousands of citizens and landed immigrants who not only risk being victimized by this kind of sloppy police work but will accept it because they don't know what to do about it and they're too afraid to complain. But the paralegal knows what is wrong and he knows how to complain and, most important, he isn't afraid to complain.

Ladies and gentlemen, this actually occurred just recently, only the victim of the hit-and-run was me and not some poor landed immigrant who hardly understands English and would be too afraid to complain about the police officer.

After giving the negligent officer a mile-long rope to hang himself, I wrote the commissioner of the OPP and demanded an investigation into why this officer who told me he would call me the next day hadn't called me for 30 days. The next thing I knew, this officer's superior officer called me and apologized and said that the subject officer was chastised for having neglected to call me as he promised. After he arranged for the subject officer to call me and after listening to the subject officer rambling on about the other driver's age, I realized that I had been cheated out of a professional investigation. The original officer sent to investigate my hit-and-run occurrence was a rank amateur being paid as if he was a professional.

I won't give you a dissertation of what I sent to this man's superior officer, but suffice it to say that he was deeply concerned and said that if the new investigator sees one scratch, one mark or one dent on the other driver's car that corresponds with the collision between his car and mine, the other driver is being charged with fail-to-remain.

That's fine. That would come about as the result of professionalism on the part of the new investigating officer. But now let's turn again to the victim in the scenario I previously gave you. Would he have the knowledge, the fortitude and the courage to stand up for his rights and complain about the rank amateur who bungled his way through an accident investigation, a cop who was so indifferent to his work as a police officer that he didn't even bother to call the victim back?

That is why section 57 is flawed. Someone has to represent the victim's interest in this case, but if we're to follow the dictates of section 57 the way it is written; only the fearful immigrant, who hardly speaks or even understands English and who fears police in any case, must make the complaint.

Considering what we have been hearing about the dishonest police forces in Mexico, if you were living there month after month with little understanding of Spanish and mindful of how many of the police officers there are on the take, wouldn't you prefer to have a Mexican friend who was knowledgeable about Mexican law and its police practices represent you with reference to your complaints? Of course you would.

Subsection 57(2) goes on to say in part, "A complaint made by a member of the public must be in writing, signed by the complainant."

If in the previous scenario, a landed immigrant went to his paralegal or any other agent or lawyer or even a knowledgeable friend and asked him to prepare the complaint on his behalf, the paralegal would divide the complaint into two parts. The first would be a statement of facts signed by the complainant and the second part would be the paralegal's thoughts on the matter. It would be foolish to expect the landed immigrant to sign his name to the second part of the complaint because although he may understand to some degree what his paralegal is saying in the paralegal's portion of the complaint, his signature would be meaningless as the thoughts are those of his paralegal and not necessarily his own.

As I see it, subsection (2) is also flawed for the reasons given.
Now I refer you to subsection 58(4), in which it says in part, "The chief of police shall not deal with any complaint made by a member of the public if he or she decides that the complainant was not directly affected by the policy, service or conduct that is the subject of the complaint."

Are we talking about the victim's friend, paralegal or lawyer whom the chief won't deal with? The sentence is too vague. It appears to me, however, that no matter who is representing the victim's interests, be it his friend, his paralegal or his lawyer or for that matter even his member of the Legislature, the chief is not obliged to talk to such a designate chosen by the victim.

I find that subsection offensive and, quite frankly, quite dangerous. It denies victim representation, something that all of us are entitled to.

Nowhere in Canada is any person denied the right to be represented, be that person a prison inmate doing time for murder or a child caught stealing candy. All persons, including victims of crimes or police brutality, are entitled to be represented at all hearings and inquiries or during investigations, no matter how mundane.
The idea of an investigating police officer browbeating a frightened complainant into withdrawing his complaint against another police officer without having the right to have a relative, a friend, a paralegal, a lawyer or even his MPP present is outrageous.

It gives powers to chiefs of police that they would otherwise not have. And all of this is done in the name of justice. If that's justice, then justice it is going under an assumed name. What it is really being done is in the name of police protection. The protection I speak of is not that afforded to the citizens for their best interests but rather that which is afforded to the police for their own interests.

One would have thought that we would have learned from our past mistakes. In times past, we winked when we learned that robbers were tortured to make them confess. Later, when we became more civilized, we only winked when their handcuffs were too tight. Are we now to wink when we learn that the victims of police wrongdoings will have their complaints dismissed because they were browbeaten by police officers because while they were unrepresented, they were too afraid to stand up for their rights and, as a result, they signed away their rights?

Ladies and gentlemen, if you permit these offensive subsections to stand the way they are, you will in essence be winking away the rights of those too terrified to speak up against injustice. They will succumb to wrongdoings committed against them by some of the rogue police officers within our police forces. That will be a lot to ask of many of our citizens and landed immigrants and, in the end, only the very knowledgeable and/or the very brave will risk standing alone and dare speak out and complain.

The Vice-Chair: Thanks, Mr Batchelor. We have a very small minute per side starting with the opposition.

Mr Bruce Crozier (Essex South): Thank you, sir, for coming today. If I were to assume that the reason that these portions of the bill were written the way they are was to somehow minimize what have been in the past considered to be frivolous complaints, how would you address the problem then if not in this way?

Mr Batchelor: That was brought to me the other day by a sergeant in the police department who I'd known and whose advice was asked on this. He says there have been cases where busybodies, people who have a thing against the police are willing to go beyond, make the thing bigger than it really is.

I can't tell you how to control that because obviously there will always be people like that, the same as there will be bad police. But I'm thinking of the mature people, a lawyer, a paralegal or someone who's trained and knows something about police procedures. Somebody calls them up and says: "Look, I think I've been mistreated by the police. I need advice."

I think if that person comes to him, the way I propose it, that person should be able to act for the complainant and get the complainant to sign a statement of fact and then give it to the police, then have the police deal with the complainant, with that person, friend, or whoever present, so that this person feels secure and knows that everything's okay. It's up to the chief of police to determine in his own mind whether the whole thing's frivolous or not. He's the one who has to make that decision.

What I'm concerned about is not the frivolous ones but the legitimate ones where the police, the way this law is set up, will say, "I'm sorry, but we're only going to talk to Mr. Mikenstein," who incidentally doesn't speak English and will have great difficulty understanding what's going on, "and let him make the decision." The man who's the complainant may not really know what's happening to him.

Mrs Marion Boyd (London Centre): Thank you very much for bringing forward in a very clear way the problem with this whole issue around the police chief being able to make this determination around third-party involvement. I know that is a basic issue of justice when people are unable, for many different reasons, to make a complaint without some assistance.

I share your concern, and I share it particularly because the way this is set up there is no appeal above. You used to be able to go to the police complaints commission at that point, but now there's no appeal above that. The appeal can only be based on whether or not the chief was right in saying that it wasn't the first party, so it's particularly dangerous, isn't it?

Mr. Batchelor: I should add that I have over the years, especially since the first public complaints bill was drafted up -- I had a hand in drafting it up, so I was familiar with how it was working -- represented about 25 persons who came to me and said, "I'd like you to look after my interests." I'm happy to say that all 25 cases were resolved.

I'm speaking for myself. If you get some jerk who's going to make a big thing out of it, I can't stop that. But I am thinking there are an awful lot of people out there who really are concerned. If one of you has your constituent complaining about something like this, that would be a problem. I might add that this actually happened in this room. A man came to me the day before and told me he'd been threatened with a gun by a police officer, that they were going to shoot him, and he believed it and he confessed. I brought it to the Solicitor General's attention. He came to me after and said, "I'm going to have it investigated," and he did and the charges against the man were withdrawn.

So these things happen, and the idea that an MPP has his own constituent telling him that he's concerned and then the chief of police says: "I'm not answerable to you. I'm answerable to him. Get out of my office" -- you know what I mean? I don't want to see that happen.

Currently in Ontario, a lawyer, legal clinic or anyone else for that matter can help a complainant prepare his or her complaint. Several years ago, my wife’s car was rear-ended in the parking area of a mall. The driver of the other car refused to exchange information re insurance etc., as per the law. She went to the police and gave the officer at the desk the information with respect to the licence plate number of the other car. The officer decided to do nothing, claiming that the offence took place on private property and as such, doesn’t come under the Highway Traffic Act. She was right with respect to that observation but she was wrong about the law nevertheless because refusing to exchange information is contrary to the criminal code and she should have known that.

Acting on behalf of my wife (with her permission of course) I filed a complaint against the officer and the police admitted that the officer was wrong not to follow up on my wife’s complaint since the offence of the other driver was contrary to the Criminal Code.

A meeting was scheduled between me and an investigator from the complaints department of the police and the officer I complained about. The matter was informally resolved when the officer acknowledged that she was wrong and apologized for the error.

Another time, a neighbour complained to me that her ten-year-old daughter had been arrested at one in the morning and questioned in the police station by two police officers without her parents being present during the questioning. That is against the law in Canada. The next morning, I contacted the complaints Bureau of the police force and complained. As a result of the complaint, the two officers who arrested her were removed from the case and an apology was given to the girl and her parents by the police. It also turned out that the girl had not done anything wrong.

My interpretation of a third-party complaint is two-fold. First, it could mean that someone sees an offence committed by the police but there is no sign of the victim. Many years ago, a friend and I were walking down a street at night and we seen a many rob another man on the street and while robbing him, he knocked him unconscious. We chased after the robber for an hour. I ran into the CBC building and called the police and gave a description of the robber and my friend who was still following the robber. The police immediately came to the CBC building and then we looked for my friend and the robber. We found my friend but not the robber.

My friend said that he found a police officer and told him that the robber (now in the custody of my friend) what he had seen. The officer said that since he didn’t see the robber, he couldn’t arrest him. He ordered my friend to release the robber. The two detectives with me found out who the police officer was and had him brought before the chief of police after I complained. They later told me that the chief really went ballistic when he heard the police officer let the robber go.

Second, a third-party complaint is prepared on behalf of a complainant at the complainant’s request. He should prepare the statement for the complainant and get the complainant to sign it and then (in my opinion) he should be able to include his own thoughts on the matter, something the complainant may not be able to do on his or her own.


Stoney Aphrodite said...
This comment has been removed by a blog administrator.
Dahn Batchelor said...


I will not permit my readers to place ads in my comments section nor will I permit readers to publish their comments in any language other than English. Some of the comments in Chinese were utterly off point and ridiculous.