A speech with respect to police complaints

On May 12, 1997, I gave an address before the Justice Committee of the Ontario Legislature with respect to various sections of Part V of Bill 105 re the proposed POLICE SERVICES AMENDMENT ACT, 1997.

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.

My current comments

The legislators didn’t accept my suggestions and as a result, the abuses by many police officers continued because many citizens were afraid to file a complaint on their own. When I was practicing law, I had citizens who wanted to file a complaint directly to the Toronto police department asked me to write their complaint and they would sign it.

In one such incident where the police barged into a home and caused $5,000 in damages searching for a gun that wasn’t in the home upon receiving the complaint I prepared, settled rather than be taken to the Small Claims Court. They paid the $5,000 to my clients.

In another incident, my client was charged with an offence in which I represented him in court. The charge was dismissed. I prepared his claim for damages with respect to his handcuffs being so tight, they left a permanent scar on his wrists and also for strip searching him when they knew that female officers would be walking by. They offered $2,000 and he accepted it as settlement of his claim.

Another time, two detectives in the Peel Regional Police arrested a ten-year-old girl at one in the morning because they suspected that she broke the arm of a baby that her mother was caring for the Children’s Aid. They questioned her alone at the police station even though they knew that her parents were in the station. That is against the law in Canada. The next morning I called the complaints department of the Peel Regional Police and demanded that those two cops be removed from the case. They were immediately removed from the case and a highly trained female police officer was assigned to the case. She agreed with me that every time she wanted to visit the home and talk with her parents, look around the home and talk with the girl, I would be present. She finally concluded that there was no way that it would be determined if anyone really broke the baby’s arm. She concluded that the baby may have fallen against something so the matter was closed.

The Special Investigations Unit (SIU) was created in 1990 and its purpose is to investigate serious complaints where citizens have been seriously injured or killed by police officers in the province of Ontario. But unfortunately, it became a paper tiger with no teeth. The reason for this is that the Toronto police officers who were being investigated and the police witnesses refused to cooperate. They were supposed to not talk with anyone before the SIU investigators talked with them first but they actually hired the same lawyers and would compare their notes before meeting with the SIU investigators. Finally, the government was fed up with this nonsense and subsequently passed a law that prohibits the police officers to talk about the complaint until they have each been investigated by the SIU investigators.

Sometime later, I am going to write a series of articles about the abuses brought upon many citizens during the G20 Summit that was conducted in June 2010. In those articles, you will see just how far many of the Toronto police officers had sunk to in their abuses against hundreds of citizens who were later deemed innocent during that police fiasco.