Wednesday, 17 December 2014

Complaint procedures against the police

On 1997-May-12, 1997, I was invited to address an Ontario Legislative Committee on the government’s proposed Bill 105, the Police Services Amendment Act. What I said is copied from the legislation's documents.
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 practising 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 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 Mister 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.

This was the end of my presentation       

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