Report on an inquiry into administration of internal investigations by the Metropolitan Toronto Police Force

7.

Role Of The Police Services Board

A Matter of Responsibility

The law gives Boards overall responsibility for policing services in their communities. That is true of the old Police Act which was in effect in 1990, as well as the new Police Services Act. The new Act is more specific about what Boards are supposed to do:

• generally determine objectives and priorities after consultation with the Chief;

• establish policies for effective management of the force;

• appoint and direct the Chief and monitor his or her performance; and

• establish guidelines for administration of the public complaints system by the Chief, review its administration and receive regular reports.

The law says that Police Services Boards must not become involved in day-to-day management of police forces. Their role is not that of police commissioners in some foreign jurisdictions who get involved in investigations. It is an important principle of our system that operational matters of a police force be kept clear of political decision- making. Symbolically and appropriately, the name of the local "board of commissioners of police" in the old Act was changed to the "police services board" in the new Act.

The law is clear that the Board cannot usurp or replace the management role of the Chief of Police. However, the Board clearly has overall responsibilities for the operation of the force. The Chief reports to the Board and must obey its lawful orders and directions.

It is the view of this Inquiry panel that a Police Services Board cannot fulfill its responsibilities for monitoring the policies it sets and the performance of the Chief unless it insists on having the necessary information. And there must be an obligation on the Chief to report fully.

The hands-off stance taken by the Metropolitan Toronto Police Services Board in the matter of the resignation of Constable Gordon Junger represents a misunderstanding of its role and a failure to assume its rightful responsibilities.

Failure To Exercise Board Authority

...the evidence before this inquiry is uncontroverted of an ' ... open, co-operative relationship with the Chief' ... Furthermore, the evidence established that since Chief McCormack became Chief, the level of verbal reporting had ' ... very much increased'.

The Police Services Board was limited -- by lack of information from the Chief -- in what it could do prior to the publicity about the Junger matter. However, once it learned of the matter, the Board should have demanded to see the agreement. It should have asked for legal advice on the implications. It should have contacted counsel for Junger and advised him that the terms were unacceptable to the Board.

The Board did none of the above. It did not ask to see the agreement nor to ask for legal advice. It did not demand a full accounting of the circumstances that led to the agreement. When the Ontario Civilian Commission on Police Services expressed concern about the matter early of 1990. the reaction of the Board was to appoint a task force. The task force did not come to grips with the fundamental problems.

The view of the Inquiry panel is that the response by the Board was woefully inadequate.

The then Chair of the Metropolitan Toronto Police Services Board, June Rowlands, defended the Board's actions before the Inquiry. She said the Board was not aware of the agreement when it was signed; the Board was not party to the agreement, could not change it, and considered that it was within the day-to-day management responsibilities of the Chief.

When reports of the Junger resignation appeared in the press and the matter became a public issue, Ms Rowlands discussed it with the Chief. She learned of the agreement, but she did not ask to see it and testified that she felt he clearly did not want to give it to her. She also stated that stricter guidelines on reporting by the Chief were not required.

Ms Rowlands said that the Board generally felt constrained in what information it could receive about disciplinary matters because of its duties as prescribed in legislation and particularly its potential function as an appeal body in disciplinary cases.

The Metropolitan Toronto Police Services Board appears to have boxed itself into a Catch-22 situation. The Chief did not tell the Board more because it did not ask. The Board did not ask because it assumed the Chief would not tell.

In order for the Metropolitan Toronto Police Services Board to know whether its policies had been followed in the Junger matter, and whether the Chief had exercised good judgment, it should have required answers from the Chief.

Since the Board is the employer of the force, on behalf of the public, any resignation agreement with a member of the force should necessarily be subjected to its approval. The Chief acts as an agent of the Board in signing an employment-related agreement. Junger's resignation was approved by the Board, but the Board was not advised of the agreement.

The Appellate Function

Overall, the Board has made too much of the perceived limitations imposed by its appellate function. There are very few appeals to the Board in any one year. In a disciplinary matter where the officer is still employed by the force, the Board always has an option to refer an appeal to an outside body if it has learned too much about the individual case to give the officer an impartial hearing. Under the old Act, the Board could refer the appeal to a judge; under the new Act, it can refer the appeal to the Ontario Civilian Commission on Police Services.

Safeguard for the Future

The Board submission states pp. 29-30):

The Board is of the view that the reporting which took place in this instance did not adequately prepare the Board to respond to this issue when it first arose and ultimately to protect the interests of the public. More detailed reporting by the Chief to the Board should have occurred as per the directives on this issue. Specifically, such reporting by the Chief should be sufficient to allow the Board to identify issues of importance such as the agreement to resign, whether all charges were properly investigated and whether all charges that could have been laid were indeed commenced.

Nevertheless, it is encouraging that the Board is taking such an interest in the Junger case now.

However, more needs to be done to get to the heart of the matter. A major concern for this Inquiry panel is how to ensure that the Police Services Board is able to fulfil its monitoring function more effectively in future.

The Board has accepted recommendations from its task force on modification of reporting arrangements. The task force said that Internal affairs should provide quarterly statistical reports to the Board on numbers (not names) of officers charged with disciplinary or other offences. The Chief retains discretion to decide which cases to report to the Board in more detail, but the task force said he should report on cases "which may affect the reputation or integrity of the force or an individual member of the force or which may become a matter of public concern".

We consider the reference by the task force to "discretion" in the Chief's reporting to the Board to be inappropriate. It is important that Board policy state clearly the obligation of the Chief to report on cases which involve the integrity of the force or the public interest, and the obligation of the Board to be so informed. There should also be a requirement for regular status reports on serious disciplinary matters.

However, we are concerned that putting policies in place that make the Board the passive recipient of information is not enough. Some mechanism is necessary to allow the Board to assure itself in a more proactive way that it is fulfilling its role as civilian monitor of policing services for the community.

This Inquiry received considerable information on how other forces operate, including descriptions of six police services which sent representatives to give evidence:

Hamilton-Wentworth Regional Police Force, Ontario Provincial Police, Edmonton Police Service, Royal Canadian Mounted Police, Detroit Police Department and New York City Police Department.

It is not possible or advisable to transplant solutions ready-made from other jurisdictions, but the experience of other forces is helpful in suggesting possible options that could be tailored to the Ontario experience. The Edmonton Police Service, for example, uses an independent complaints monitor to conduct an external review.

Ontario has a Police Complaints Commissioner (PCC) with full-time staff to oversee public complaints. But it is not the function of the PCC to monitor if all the policies of the Police Services Board are being implemented; the PCC oversees the public complaints system only.

The Police Services Board might find it useful to have a monitor who could carry out an independent review or performance audit on behalf of the Board of the way the force is carrying out Board policies. For example, later in this report, we recommend limits on the time it should take for an officer charged with a disciplinary offence to have his or her case heard. A monitor could conduct a review to see if the time limits are being adhered to, and if not, why not.

The Metropolitan Toronto Police Services Board should consider options to fulfil its monitoring role more effectively. The Board should have some mechanism for monitoring the implementation of its policies by the force and the capacity to investigate alleged problems which may come to light.

This Inquiry had the benefit of an independent audit of Internal Affairs files, an independent investigation by a Commission investigator, and ongoing advice from Commission counsel. These mechanisms proved very helpful in uncovering problems in administration of internal investigations by the Metropolitan Toronto Police Force.

We direct that the Ontario Civilian Commission on Police Services be advised within six month of the decisions made by the Police Services Board on how it will improve its effectiveness in overseeing implementation of its policies by the force.

Recommendation 1

Recommendation 2

Recommendation 3