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

8.

Professional Standards and Deterrence

A distinction has been drawn by the highest court in Canada between proceedings that are criminal or penal in nature and proceedings that are intended primarily to maintain discipline and professional integrity or to regulate conduct within a particular group, such as a police force. The Supreme Court of Canada has characterized disciplinary matters as "protective or corrective". (Wigglesworth v. Her Majesty the Queen).

That view was reflected in the comments by Superintendent Duncan Wilson in sentencing Sergeant Brian Whitehead on May 11, 1990:

A major role of the Tribunal Hearing Officer is to set standards of acceptable behaviour and conduct for serving members of this Force. The penalties meted out are not intended to punish, but to reflect the seriousness of the offence and hopefully to act as a specific deterrent to the individual and a general deterrent to others. The message should indicate that errant behaviour or misconduct does not meet the standards expected by this community and demanded by this Force.

The Junger Resignation

We strongly disagree. On the face of it, the agreement reflects the attitude that it is acceptable to bargain away the laying of charges for a resignation. It is not. It is imperative for public confidence and police morale that discipline of officers accused of misconduct be appropriate, just and fair, and that it be perceived to be appropriate, just and fair.

In a case like Junger's, where the officer resigns and all existing and potential charges are abandoned and the deal is meant to be kept secret, the general deterrent effect is lost. According to the official record, Junger resigned for personal reasons. What message does that send to the community and the rest of the force?

When discussions took place between Junger's lawyer and Internal Affairs about an agreement setting out conditions for the officer's resignation, no disciplinary charges had been laid, although evidence had been gathered to justify preparation of a brief to the Trials Preparation Unit on several potential disciplinary charges, including accepting money for sex, operation of the escort service and unauthorized use of CPIC. And there was certainly time between Dec. 5 (the date of the "sting") and Jan. 19 (when the agreement was signed) to prepare a brief.

As we noted earlier, the force was not prevented from proceeding with disciplinary charges by the Metro police officers' "Bill of Rights". The "Bill of Rights" provides that no officer should be required to face a disciplinary charge if he or she has been acquitted in criminal court on the same matter. But Junger was charged with a narcotics offence, which was not in any way related to the escort service or use of the police computer. (We discuss the effect on the "Bill of Rights" of the new Police Services Act, which was not yet in effect at the time of the Junger matter, on page 46.)

One of the major justifications we heard for seeking an agreement for Junger's immediate resignation was that the disciplinary process is slow and expensive when the officer is being paid on suspension. But the force itself was clearly in charge of moving the disciplinary process forward and took no action. If a brief had been prepared and charges laid, it is possible that Junger could have been brought before a disciplinary hearing officer in February, 1990.

In other words, there is a process available to deal with so-called bad apples. The force chose not to use it. Even in retrospect, after two years of a Commission inquiry, Internal Affairs still does not seem to see any problem. Therefore, the Police Services Board should have a policy stating explicitly that where there is evidence which could constitute a basis for disciplinary charges against a member of the force, charges shall be laid forthwith.

Plea Bargaining

Supt. Wilson said the offence was so serious that he considered a penalty of dismissal. But based on the mitigating factors, including Whitehead's many years of exemplary service, he told Whitehead he would give him "the opportunity to redeem yourself and continue your career."

The hearing officer's consideration of dismissal -- the harshest penalty available for a disciplinary conviction -- and his decision to demote Whitehead stands in stark contrast to the plea bargain for a much more lenient penalty. We have been told that about half the officers charged with disciplinary offences plead guilty. We are concerned, in light of the Whitehead case, that the force be made aware of the importance of guarding against bargaining away an appropriate disposition in exchange for a guilty plea. If the plea bargain had been accepted in the Whitehead case, the sentence would have sent an unmistakable message to the public and to other officers that the force did not view Whitehead's misconduct as particularly serious.

The fact that Jane Doe was not advised of the hearing and was therefore not present or represented by counsel meant that her views on the seriousness of the offence were not heard. Moreover, in the process of reaching agreement between the prosecutor and defence, the statement of Jane Doe was changed without her knowledge or that of the investigating officers. We concur with Commission counsel's criticism (submission, p. 30):

It may be argued that such an amendment was desirable in order to encourage a guilty plea. Such an argument is misplaced if the officer in question is pleading guilty upon an inaccurate or misleading set of facts. How could any legitimate disciplinary or other public interest be served by such a result?

The Inquiry panel recognizes that plea discussions are a practical alternative to a prolonged court proceeding in the overloaded criminal court system. But there is no particular reason to engage in plea bargaining over Police Services Act charges. We did not hear any evidence that the police disciplinary system is backlogged, or that prosecutors in the Trials Preparation Unit are unable to handle all the cases.

However, given that it is unlikely that plea bargaining will disappear from the disciplinary system, there should be some constraints -- i.e. if there are to be any discussions related to plea or other matters, such as resignation, between prosecution and defence, they should not take place until after charges are laid, except in exceptional circumstances.

Recommendation 4

Delays in Discipline

We are concerned that there seems to be general acceptance that the disciplinary process has to take a long time. Delays in the disciplinary process are almost entirely within the ability of the Police Services Board and the force to control. If the Board is concerned about losing money during disciplinary proceedings because it has to pay officers on suspension or employ them in alternate duties off the street while their case is awaiting a hearing, it should take steps to expedite the disciplinary process.

The Board should issue guidelines to the effect that except in exceptional circumstances, a disciplinary hearing should be held within 60 days of the completion of the investigation. As we have already noted, we heard no evidence that the Trials Preparation Unit of the force is overburdened with cases, nor was there any evidence that Internal Affairs is swamped with work. The timelines we suggest should be achievable. If they are not, the Board should find out why.

Recommendation 5

Professional Standards Review Committee

Members of the committee are to include the Regional Director of Crown Attorneys, the Staff Superintendent in charge of Support Operations, a Superintendent in charge of Professional Standards, a Staff Inspector from Trials Preparation and legal counsel for the Office of the Chief of Police.

This Committee may have been set up with the best of intentions, but it is unclear what use it will be to have an additional step or layer of review within the force. We have serious concerns that it will add further delays to the disciplinary process and will diffuse accountability. Furthermore, this Committee seems to involve the Crown in a police investigation, which runs at cross-purposes to the intent of the force's own Regulation 3. 1.1 which requires that the Crown be consulted for an opinion in cases of where allegations against an officer involve possible criminal charges and no charges are laid (Regulation 3.1.1 is discussed on page 47.)

Recommendation 6

On the Record

If charges are subsequently dropped as a result of discussions between the force and defence counsel for the officer, the withdrawal of charges will have to be documented, and the Police Services Board may ask to know why and under what circumstances this occurred.

If the officer resigns before the charges are disposed of, that circumstance should be on the officer's record. This would preclude a promise of a neutral employment reference such as was made in the Junger agreement. If, for any reason, an officer resigns before disciplinary charges are laid or resolved, the circumstances should be noted in the officer's personnel file. If the former officer seeks employment with another force, the prospective employer should be aware of the true circumstances of the resignation.

It should be routine practice for all police forces to obtain a waiver under the Municipal Freedom of Information and Protection of Privacy Act from an individual who had been an officer with another force and who is seeking employment. The waiver would allow the force to check the individual's past employment record with another police force.

The issue of keeping records arose in another context. During testimony, it was suggested that there should be a record kept of what Police Services Boards are told about individual disciplinary cases since the Board may be asked to hear an appeal on the matter.

We agree that minutes should be kept of the information provided in camera by the Chief to the Board on individual cases. These minutes would be confidential, but would be made available to counsel for the officer in the event of an appeal. Having a record of what the Board knows will provide additional protection to the appellant officer. If the Board has received too much information on a particular case to provide an impartial appeal hearing, the case must be referred to the Ontario Civilian Commission on Police Services.

Recommendation 7

Recommendation 8

Minutes should be kept of the information provided in camera by the Chief to the Board on specific cases. These confidential minutes should be made available to counsel for the officer in the event of an appeal to the Board. If the impartiality of the Board is compromised by information provided on an individual case prior to an appeal, the appeal should be referred to the Ontario Civilian Commission on Police Services for a hearing.

"Bill of Rights for Police Officers"

The "Bill of Rights for Police Officers" was adopted as policy by the Metropolitan Toronto Board of Commissioners of Police (now the Police Services Board) in 1982. One of its provisions says that no officer should be required to face a disciplinary charge if he or she has been acquitted in criminal court on the same matter. Traditionally, in cases where both criminal and disciplinary charges were laid, the disciplinary charge was held over until there was a verdict in court. If the officer was acquitted, even on technical grounds, the disciplinary charge was dropped.

Section 60 (11) of the new Police Services Act states that if an officer is charged with an offence under federal or provincial law in connection with an alleged misconduct, the disciplinary hearing shall continue unless the Crown Attorney advises the Chief that it should be stayed until after the court proceedings.

It has been suggested that the new Act has invalidated the "double jeopardy" provision of the "Bill of Rights". It is certainly clear from the Act that in most cases the disciplinary and criminal proceedings are meant to be parallel processes, each following its own outcome independently of the other. It should follow that the outcome of one does not have to influence the outcome of the other except where the disciplinary charge is that of being found guilty of a criminal offence. The Metropolitan Toronto Police Services Board should adopt a policy that disciplinary charges will be laid and prosecuted independently of the outcome of any criminal charge.

In February 1991 , Chief McCormack issued a routine order changing force practice to comply with Section 60 (11) of the new law. However, the relevant section of the "Bill of Rights" has not been repealed by the Police Services Board.

The "Bill of Rights" also specifies that allegations against police officers arising from citizen complaints must be proved beyond a reasonable doubt. This differed from the "balance of probabilities" proof required for all other prosecutions under the former Police Act. The new Act says in Section 61 (1) that misconduct must be proved on "clear and convincing evidence" at a disciplinary hearing. The force has adopted "clear and convincing" as the new evidentiary burden, but again, the reference to proof beyond a reasonable doubt remains in the "Bill of Rights", which is still technically a policy of the Board.

It is important that the Police Services Board examine the "Bill of Rights" in light of the new legislation. At the very least, provisions which conflict with the new law should be abolished. The Board should not maintain policies which run counter to the letter or the spirit of the new law.

Recommendation 9

• no officer should be required to face disciplinary charges if he or she is acquitted of an offence in criminal court on the same matter; and

• disciplinary charges based on allegations by citizens must be proved beyond a reasonable doubt.

Criminal Charges

This requirement is presumably meant to provide assurance that investigators do not give special treatment to one of their own. The Crown is to give his or her considered opinion on the matter.

However, Internal Affairs has interpreted this regulation to mean that it is not necessary to consult the Crown Attorney if investigators conclude there is insufficient evidence of criminality. This interpretation defeats the purpose of the regulation, which is to ask for independent review by the Crown. The submission of the Metropolitan Toronto Police Services Board states that the existing regulation provides an unacceptable level of discretion. We agree.

The regulation should be amended to reduce the discretion of police in determining what constitutes sufficient evidence and to reflect the intent that the results of all investigations into alleged criminality by police officers be subject to scrutiny by the Crown Attorney when a charge is not laid.

The amended regulation should incorporate the procedure adopted by Internal Affairs since the inception of this Inquiry that where a decision is made not to proceed with criminal charges, a written brief on the case must be presented to the Regional Director of Crown Attorneys. In addition, the Attorney-General should require that the Crown be required to provide its opinion in such cases in writing.

Having both the brief and the Crown's opinion in writing will enhance accountability in the face of potential differences in recall over what exactly was said. In the case of Whitehead, no written brief was prepared for the consultation with the Crown. In retrospect, there are different versions of what exactly the Crown was told about Jane Doe as a witness. Because there is nothing in writing, it is impossible to verify exactly the reasons given by Internal Affairs for not proceeding with criminal charges against Whitehead.

There was no Crown consultation, and no written brief was prepared in the Junger matter in relation to evidence gathered on possible charges in the unauthorized use of the police computer system (CPIC) and breach of recognizance. Unauthorized use of CPIC can result in criminal (breach of trust) or disciplinary charges. A breach of recognizance is a criminal offence.

The Inquiry panel is concerned that all police forces treat any violations of the computer system extremely seriously. The farther technology advances, the more stringently society must safeguard the privacy of individuals in these computer networks. Criminal and disciplinary charges should be laid for alleged misuse of CPIC. The Solicitor General of Ontario should consult with his federal counterpart about stepping up random audits by the RCMP to protect the confidentiality of CPIC.

We are also concerned that breaches of recognizance by a police officer should not be treated any differently than the same offence by a civilian. Junger's association with Roma Langford after his release should have resulted in his arrest and a charge of breach of recognizance.

The Junger deal was put in writing, but written resignation agreements are extraordinarily rare. A suggestion could be made orally to an officer that it would be better to quit than face charges. One Internal Affairs officer told the Inquiry that he was aware of other instances where the force had suggested withdrawal of criminal charges in return for resignation when there was evidence to convict.

Recommendation 10

Recommendation 11

Recommendation 12

Detention and Arrest

The investigations carried out by Internal Affairs were skillful and professional in both cases. However, the investigators made arrests when they admitted that they had no intention of proceeding with the criminal charges for which the arrests were made.

In the case of Junger, the arresting officer said he did not believe that there was sufficient evidence for a charge of living off the avails of prostitution. He said he arrested Junger on that charge after the "sting" in the hotel room because he wanted to caution Junger in case he said anything incriminating. However, the investigator did not question Junger on the prostitution charge. If he was expecting Junger to make an incriminating statement, why did he not question him? Instead, he released Junger unconditionally shortly thereafter. No arrest report was made on the prostitution charge. Junger was re-arrested later the same night on a narcotics charge.

Witnesses for Internal Affairs testified that the arrest on the prostitution charge was proper. They said for an officer to make an arrest, he or she must have reasonable and probable grounds to believe an offence was committed. The standard for laying a charge, they said, is a higher one; the officer must believe that the offence was actually committed. We concur with the submission by Commission counsel (p. 17) that this distinction "amounts to sophistry in the context of the Junger arrest."

Evidence was presented that Internal Affairs is staffed with senior police officers so that in the event of a disciplinary matter, they can give orders to an officer to cooperate. This option was not used in either case.

In the Whitehead matter, investigators said they arrested Whitehead for sexual assault and extortion offences against Jane Doe because they were concerned he was going to assault one of them when he was confronted at Jane Doe's apartment. They said they did not intend to proceed with the assault and extortion charges. Nonetheless, Whitehead was detained at headquarters. He was not formally interrogated in relation to the offences for which he was arrested. No criminal information was sworn and no arrest report was made. When he was sent home, he was not officially released from arrest.

The power of arrest is such an extraordinary power that it must be treated with great caution. If a police force would arrest two of its own officers when the investigators had no intention of laying charges based on those offences, can the public expect the force to follow correct procedures in the arrest of a civilian?

The power of arrest is not to be taken lightly. Police should not make an arrest except for those purposes specifically contemplated by the Criminal Code . The Criminal Code is clear on the powers of arrest for police officers. The Chief of Police should make it very clear to the force that he expects officers of the Metropolitan Toronto force to use the power of arrest in strict accordance with the Code and that failure to do so will result in discipline.

Recommendation 13

It would appear that a tradition had evolved whereby the Commissioner was not notified of cases involving alleged criminal activity by an officer. The reason for this practice, according to witnesses before the Inquiry, is that the Police Act could not override the Criminal Code of Canada.

It is surprising that this exception to the rule was not noticed before now, given the ongoing consultation between the force and the PCC and the fact there were highly publicized prosecutions of police officers involving public complaints handled by Internal Affairs. However, it is unnecessary for this Inquiry to determine the origins of this practice, the effect of which was to set criminal investigations by Internal Affairs outside the purview of the public complaints system.

It is sufficient that once this non-compliance with the legislation was revealed through the Inquiry, it was rectified. The PCC is now advised of public complaints brought to the attention of Internal Affairs that involve alleged criminal activity.

The Inquiry panel has also been advised that discussions between the PCC and the force have resolved another outstanding issue involving the confidentiality of names of police informants.

There is another issue which arose in the context of the Junger and Whitehead matters. In both cases, the person who came forward did not want the case to go to the PCC. Particularly in the case of Whitehead, Jane Doe indicated that she was aware of the public complaints system and did not want her complaint to be monitored. Her major concern was that more people would be aware of her name and the circumstances of the alleged offence.

Most people will support having their complaint monitored by the PCC. But there may be some, like Langford and Jane Doe, who want the information they provide kept confidential within the force. There may be a few who will not cooperate unless they are assured that their case will not be subject to the public complaints system.

It is our view that the individual should have a choice. We also believe that it is more important to ensure that all information of alleged police wrongdoing is brought forward for investigation than to risk losing any information because the individual does not want PCC monitoring.

However, we are concerned that there not be any undue influence or even the appearance of undue influence by police to discourage anyone from going through the PCC process. Therefore, the person should sign an acknowledgement that he or she has chosen not to have the file sent to the PCC. The acknowledgement must also make it clear that the individual can change his or her mind at any time if unsatisfied with the investigation.

A file number, without name or particulars, should also be sent to the PCC. That way, the PCC will be aware that the file exists and may inquire as to its disposition.

The Inquiry panel is aware that an explicit choice is not written into the Act, but neither is any special provision for police informants, which has been negotiated by the PCC and the force. Giving people a choice of the route they wish to take should be allowable on the basis that they are providing information, rather than making a formal complaint within the meaning of the legislation.

Recommendation 14

Role and Reporting of Internal Affairs

It has been suggested that there should be a central clearinghouse within the force for all cases involving allegations against officers. The division of labour on these kinds of cases does appear to be somewhat arbitrary. Traditionally, Internal Affairs was supposed to handle criminal matters, but the bureau and unit commanders also investigate some allegations involving criminal activity.

Some matters which are reported in the field may be referred to Internal Affairs for investigation. Internal Affairs is also supposed to review investigations by other units of the force, except files of the PCB which are reviewed by the Police Complaints Commissioner. Internal Affairs appears to perform a rather passive "review" role in regard to the files of investigations carried out by other units. We did not hear evidence of anything being accomplished by these reviews.

Internal Affairs has traditionally been a special unit, set apart from other units of the force, reporting separately to the Chief. The new organization chart for the force indicates that Internal Affairs will now report to the Deputy Chief, Support Command, who is also in charge of the bureau.

This reorganization should help to clarify accountability. There will be one Deputy Chief receiving reports on Internal Affairs investigations and review files, as well as overseeing the Public Complaints Bureau. Thus there will be a senior officer who reviews all the investigations into alleged misconduct by officers, regardless of the source of the allegation or who investigates it.

We understand the need for a unit like Internal Affairs which can maintain files confidential from other units of the force. If word leaked out within the force about an internal investigation, it might jeopardize the success of the investigation. However, it is also important that investigators not be working at cross-purposes on cases of alleged wrongdoing by members of the force.

Given the fact that Internal Affairs does not review PCB files and that the files of Internal Affairs are kept separately from PCB files, two investigators from different units could be working on related matters and not know it. We suggest that the force work on mechanisms to ensure the optimum flow of information for internal investigations, while protecting the confidentiality of sensitive case files.

Recommendation 15

Public Complaints: Standard of Proof

The Act gives the Chief of Police the responsibility and authority to investigate any apparent or alleged misconduct by a police officer on the force. Section 90 states that the Chief of Police shall review the final report of the investigation of a public complaint and may order further investigation.

The Chief may then:

1. decide that no further action is necessary;
   
2. admonish the officer;
   
3. hold a disciplinary hearing;
   
4. order a hearing by a board of inquiry; or
   
5. cause criminal charges to be laid and refer the matter to the Crown Attorney for prosecution.

The Act is silent on the standard of proof required for the initial assessment of a complaint. There are no procedures established for the Metropolitan Toronto Police Force by the Chief for deciding which public complaints require further action.

Deputy Chief Peter Scott, who has acted as the Chief's designate in reviewing the investigation of public complaints, told the Inquiry that the force requires "clear and convincing evidence" to proceed further. He interpreted that to mean "a strong belief" that the alleged misconduct occurred. He also said that there should be corroborative evidence to substantiate the complaint, although the law does not specifically require it.

We agree with the concerns expressed by Commission counsel in his submission (P.7):

The function of the complaint review officer under Section 90 (3) of the Act would appear to be akin to that of a justice of the peace; however, as interpreted by Deputy Chief Scott, the function he actually performs is that of a judge deciding a complaint on its merits. The position taken by Deputy Chief Scott is somewhat illogical; if he decides that a complaint has no merit, he dismisses it, but if he decides that a case has merit, he may direct a disciplinary hearing where another officer will decide the same question.

Given the sensitivity around the police investigating themselves, and the relatively few complaints in Metropolitan Toronto that have been considered at this early stage to warrant further action, we believe that a new standard should be adopted for the initial review of investigations of public complaints.

In cases where the decision is to "admonish the officer" in accordance with sec. 90 (b), we would maintain Deputy Chief Scott's standard of "clear and convincing evidence" since the case is being decided and resolved. In all other cases (sec. 90 a, c, d and e), where either no action will be taken or a hearing will be held, we recommend that the Criminal Code standard for the laying of a criminal information -- reasonable and probable grounds -- be used. Since corroboration is not required by the Police Services Act to substantiate public complaints, there is no reason for the Metropolitan Toronto force to require it.

We believe this new standard balances the need for fairness to the accused and the need for an open, visible process for dealing with public complaints against police.

Recommendation 16

The complaint officer should have clear and convincing evidence to make a finding that an officer should be admonished. Corroboration of a complaint should not be required before further action can be taken.