Response to the resolutions of the Metropolitan Toronto Police Services Board based upon the Report of an Inquiry into the Internal Investigations of the Metropolitan Toronto Police Force by the Ontario Civilian Commission on Police Services. -- October 26, 1992

Response to
the Police Service Board
Resolutions

Response to the resolutions of the Metropolitan Toronto Police Services Board based upon the Report of an Inquiry into the Internal Investigations of the Metropolitan Toronto Police Force by the Ontario Civilian Commission on Police Services.

1992.10.26

A PREAMBLE & DECLARATION

The resolutions from the Metropolitan Toronto Police Service Board are listed within this report, as are the Forces' responses to those resolutions. Some of the Board's resolutions closely parallel those contained in the Ontario Civilian Commission on Police Service (OCCPS) Report (The Junger Inquiry). As a result, some comments contained herein refer to the OCCPS Report. Some of the recommendations from the OCCPS Report are not feasible, either by virtue of the logistical capabilities of this Force, due to restrictions in the legislation, or by virtue of existing case law or common law. Conversely, many of the resolutions put forth by the Police Services Board speak strongly to the concept of public accountability and a renewed confidence for the police disciplinary procedures. Many of these recommendations are either in place and operating, or plans are in place for their implementation. Finally, amongst the Board's resolutions are those changes that have not previously been recommended or implemented, with which the Force agrees, and welcomes the efforts and direction of the Board in the attempt to enhance public confidence in all aspects of the internal discipline of the Force.

The following are the responses to the Metropolitan Toronto Police Services Board resolutions.

1. The Force shall not enter into any agreement, notwithstanding any legitimate purpose or bona fide intention, which purports to destroy evidence and abandon charges in exchange for the resignation of an officer nor enter into any agreement with no intention of complying with it.

1. The Force agrees with this resolution, and will continue with this practice. The Force recognises the need for public accountability and confidence in the police. Such confidence is enhanced with the assurance that controls are in place to ensure police compliance with all laws and regulations.

   In the course of investigating complaints against any officer, no agreement will be entered into during the investigation that would interfere with the normal course of justice. Where evidence exists which would support the laying of charges, such charges shall be proceeded with even if the officer resigns.

2. Members of the Force shall be treated according to the same standards that apply to all citizens in the investigation and/or discipline for alleged misconduct or criminality.

2. The Forces agrees with this in principle. Officers who are investigated for alleged criminality must be trested according to the same standards as all citizens.

   The Force concurs with the disciplinary principals embodied within the Police Services Act. In matters of alleged misconduct, which could result in discipline which police officers are subject to under the provisions of the Act, The Force feels that the Act legislates not only a standard of conduct, but a standard of penalty with which the Force concurs.

3. All internal investigations into alleged misconduct and criminality by officers shall be conducted thoroughly, impartially and without favour or undue delay.

3. The Forces agrees with this resolution. Further, the Force undertakes to ensure that such investigations shall be measured against the Canadian Charter of Rights and Freedoms to ensure, not only impartiality and an absence of malice, and ensure that the rights and freedoms provided to every Canadian, including police officers, are guaranteed.

4. All discipline or criminal charges that are warranted by the evidence gathered through investigation shall be laid promptly and shall be allowed to proceed to discipline or prosecution.

4. The Forces agrees with this resolution, but it is recommended that the section be broken into two parts:
   1. All discipline charges that are warranted by the evidence gathered through investigation shall be laid promptly and shall be allowed to proceed to discipline; and

   2. All criminal charges, that are warranted by the evidence gathered through investigation shall be laid, when the investigating officer has determined that such evidence provides reasonable grounds to lay the charge, and that such charge should be laid promptly and allowed to proceed to prosecution.

5. Complainants, especially those alleging sexual assault by an officer, shall be given all necessary guidance, support and protection, including confidentiality when requested by the complainant.

5. The Force agrees with this resolution, and undertakes to support such complainants, and provide guidance and protection as applicable to assist them through the process. Further, the Force will take whatever measures are appropriate to ensure the confidentiality requested by the complainant.

6. The Chief shall ensure that these standards of conduct are maintained and that he or she is fully informed of all the circumstances of any agreements or procedures to ensure that those which do not meet such standards are not entered into and to take immediate remedial action.

6. The Forces agrees with this resolution.

7. Members of the Force who become aware of impropriety, criminality, or conduct which in any way could harm the public confidence of the Force, have a duty and obligation to report it to senior officers.

7. The Force agrees with this resolution. Currently the regulations of the Force that govern officer actions and conduct state:

   "A member shall report forthwith to a supervisor or a member of the Internal Affairs Unit: ... details of any instance where another member performs acts or conducts himself (herself) in a manner which will, or is likely to, bring discredit up on the reputation of the Force.

   A supervisor shall immediately notify the member's Unit Commander in writing, or if not practicable, the Unit Commander, Internal Affairs Unit, upon being made aware of discreditable conduct by a member of the Force. In addition, the supervisor shall ensure that the information is kept confidential and advise the reporting member likewise."

   (Regulation 4.2.2.)

8. The Chief shall ensure that the Board is fully informed of all circumstances necessary for the Board to be able to fulfil its mandate, including the responsibility to direct remedial action if necessary and to account to the public; if it comes to a choice between retaining the appellate jurisdiction of the Board and fulfilling the Board's oversight function, the latter shall prevail.

8. The Force agrees with this resolution, with reservation. Such action may have significant legal implications. It would force the Board to abdicate their statutory obligations as the second tier appellate, shifting that responsibility to the Ontario Civilian Commission on Police Services.

   Section 63 of the Police Services Act outlines the Board's responsibility to act as an appellant body in matters of internal discipline. Although section 64 allows for the transfer of this appellant body function to the Ontario Civilian Commission on Police Services, this is clearly for exceptional circumstances. The abrogation of this responsibility removes one level of appeal from the process, and as such offends th Officer's rights to equal treatment and due process. The Force feels that a balanced level of information can be provided to the Board, to ensure that the Board can fulfil their responsibility to the public in an oversight capacity, while assuring that their appellant function is not compromised.

Prohibited Agreements

1. Commencing immediately, the Chief shall not, under any circumstances and for any purpose whatsoever, however legitimate, enter into, or authorize or permit others to enter into on his or her behalf, an agreement such as that described herein.

1. The Force agrees with this resolution. Under no circumstances will disciplinary agreements be entered into that attempt to hide their content from public examination. Nor will any disciplinary agreements be entered into that provide a beneficial level of treatement to the offender simply by virtue of his or her office or position.

Prohibited Agreements

2. Commencing at the next in camera Board meeting, and continuing thereafter, the Chief shall report fully to the Board on all cases involving alleged wrongdoing by members of the Force, where such wrongdoing may affect the integrity of the Force or the public interest. Such matters will include:
   1. all cases in which a criminal offence is, or may be, alleged as [sic] against a member of the Force:
   2. all cases which concern allegations of violence, sexual harassement, misuse of force or racial or gender bias by members of the Force; and
   3. in all discipline cases in which the alleged misconduct may pertain to conduct by an officer that would constitute discreditable conduct, insubordination, neglect of duty, deceit, breech of confidence, corrupt practice or an unlawful or unnecessary exercise of authority.

2. The Force agrees, in part, with this resolution. However, the scope of cases which the Board wishes to be kept informed of is so broad that keeping the Board informed would be logistically impossible. It would require that the Chief report on approximately 850 open cases a month.

   Therefore, the Force recommends that the Board continue with the policy, as recommended in the Feburary 19, 1991 report "Submission of the Metropolitan Toronto Police Services Board to the Ontario Police Commission Inquiry into Metropolitan Toronto Police Force Internal Investigations", where recommendation (2) states:

   Continued Reports by the Chief of Police

   The board will continue to receive verbal reports, in private, from the Chief of Police from time to time, on cases where officers are under investigation for offenses which may lead to discipline or criminal charges. The names of the officers are not given by the Chief, and the details provided, are generally limited. This is the method by which the Board was made aware of the Junger matter. The lack of detail in these reports,is necessary, so as not to jeopardize any ongoing criminal investigation, or to prejudice the Board's position as an appellant body in discipline proceedings and to ensure that the Board be kept informed of these matters so that it may address the need for any action that should be taken should the case become a matter of public concern in the future.

2. (continued) The reports to the Board,
   1. shall be provided to the Board in a timely fashion in order to permit the Board to fully and appropriately address the matters in issue; these reports shall be in writing and the Chief shall provide written status reports on a monthly basis; all such reports shall form part of the confidential minutes of the Board and shall be provided to defence counsel in the event that the Board's impartiality is challenged;
   2. shall be complete and thorough; irrespective of the Board's appellate function, the Chief shall ensure that the Board is provided with enough information to permit it to make a full assessment of the situation and to thereby properly protect the public interest;
   3. shall address whether appropriate arrest and suspension procedure have been followed;
   4. shall state which unit is conducting the investigation and why the matter was assigned to that unit

2. a/b. The Force's concern with the nature of these reports is that such action continues to remove the Board from the appellate functions allotted to them in Section 63 of the Police Services Act.

   It is believed that reports can be brought before the Board that provide sufficient information to ensure that the Board can fulfil their responsibility to the public in an oversight capacity, while assuring that their appellant function is not compromised. Further, concern in regards to this specific request, however, is that this action tends to duplicate the function currently fulfilled by the Police Complainants Commissioner vis-a-vis a review of ongoing matters.

   1. Procedures are already in place that ensure that, upon review of any investigation, if it determined that arrest or suspension procedures are not followed, then the approprate disciplinary action will be taken, and the Board will be notified.
   2. The Force agrees with this recommendation.

3. Commencing immediately, the Chief shall obtain the Board's approval, prior to the finalization, of all employment related agreements negotiated by the Chief, acting as an agent for the Board. Such negotiations shall involve Labour Relations and the Legal Advisor.

   Where such employment related agreements arise from, or in, the context of alleged wrongdoing by members of the Force, the Chief shall bring such agreements, and the circumstances which give rise to them, to the attention of the Senior Regional Crown Attorney, (the "Crown Attorney"), and the Trials Preparation Unit in order to ensure that:

   1. all possible criminal or disciplinary charges have been investigated; and
   2. all appropriate charges are in fact commenced and proceeded with;

      The Chief shall report back to the Board, in writing, as to the results of the consultation with the Crown Attorney and the Trials Preparation Unit.

3. The Force agrees with this resolution, with the understanding that the Force loses jurisdiction in disciplinary matters upon resignation of the defendant.

   However, despite the loss of jurisdiction, a notation is added to the matter by the prosecutor, that the matter would have been vigorously prosecuted except for the resignation of the member. This allows for re-commencement of proceedings, should the member withdraw their resignation, or appeal to the Ontario Civilian Commission of Polce Services for re-appointment to the Force. In such cases, disciplinary proceedings would resume.

4. The Chief (shall) report to the Board at its first meeting in October as to:
   1. the effect of the PSRC on the accountability of the Chief to the Board on matters of discipline or criminality involving officers and whether the PSRC in any manner delays the disciplinary process or delays the Chief reporting to the Board on these matters;

4. a. The PSRC on instructions from the Chief of Police, reviews criminal allegations against officers, whether criminal charges are laid or not. Further, the PSRC provides direction to investigators, and reports to the Chief the PSRC's opinions and recommendations. In addition, the PSRC also reviews all investigations where major breaches of discipline are alleged, and reports to the Chief, the committees recommendations and opinions regarding the laying of charges under the Police Services Act. The Chief considers the recommendations of the PSRC and ensures that the appropriate aciton is taken. The PSRC does not delay the disciplinary process, or the Chief reporting to the Board.

4. b. mechanisms with the PSRC or elsewhere in the Force which will ensure, with regards to disciplinary matters that:
   1. where evidence exists which could constitute a basis for disciplinary charges, under the Police Services Act (the "Act"), such charges shall be laid forthwith. Any resolution of the matter shall only occur after the charges are laid. Such resolutions shall form part of the disciplinary hearing process from which a record of the proceedings shall be prepared;

4. b. i. The Force disagrees with this resolution. Such action would remove any kind of informal discipline procedure, which currently exists within the Working Agreement, and Section 59 of the Police Services Act, 1990.

   Further, the wording of "forthwith" suggests that charges should be laid immediately after the information has come to light, irrespective of the status of the investigation. The Force recommends, that where evidence exists that could constitute a basis for a disciplinary charge, and circumstances dictate the need for formal disciplinary proceedings, that such charges shall be laid forthwith, pending the completion of the investigation. Any resolution of the matter shall occur after charges have been laid, and as such shall form part of the disciplinary hearing process from which a record of the proceedings shall be prepared.

4. b.
   2. on the completion of an investigation into disciplinary charges under the Act, a hearing will be held within 60 days unles there are exceptional circumstances and the Board approves the extension of time. Further the Chief shall take all appropriate steps to ensure that the investigation and any hearing or appeal arising therefrom shall proceed as expeditiously as possible;

4. b. ii. The Force disagrees with this resolution. The hearing of a disciplinary matter within 60 days of the laying of a charge, has many logistical and legal barriers that cannot be circumvented.

   An informed decision regarding the appropriate Police Service Act charge can only be made after an examination of the full and complete brief with all relevant information present.

   Even if the appropriate support staff were available, it is unlikely that an adequate brief could be prepared that included the transcripts of taped interviews, so that it could be presented to either the Professional Standards Review Committee or to the Trials Preparation Unit.

   The Officer must be served with the documents and ordered to appear. The Officer's first appearance is usually scheduled for his or her day shift, otherwise the Officer would be entitled to a call back. The Officer's dayshift is part of a five-week rotation. The Officer also requires sufficient time to retain and instruct Counsel after his or her first appearance, and prior to the hearing.

   With the consent of the Hearing Officer, counsel for the Officer, and the prosecutor, a trial date must be set.

   • consideration must be given to the availability of civilian and police witnesses;
   • consideration must be given to the availability of defense counsel, bearing in mind that such counsel will have other matters in other Courts to deal with.

   Requiring hearings be held within the 60 day limit presents the likelihood of defense counsel successfully arguing that protections and guarantees of due process under the Charter of Rights and Freedoms have been denied.

4. c. The Chief (shall) report to the Board at its first meeting in October as to:

   a reconsideration of the role of the PSRC, and particularly the role of the Crown Attorney's office on the PSRC, in light of the need to develop mechanisms within the Force to deal (sic) allegations of criminal offenses by officers in a manner that will reduce the discretion of the investigating officers in determining what constitutes sufficient evidence; in reconsidering the PSRC and/or in establishing such mechanisms, the following amendment to Regulation 3.1.1. shall be considered:

   "Where there is any allegation of misconduct involving criminal acts committed by a member of the Force, the Chief of Pollice shall ensure that the results of the investigation of the allegations be brought before the Regional Director of Crown Attorneys in all circumstances whether or not a charge has been laid.

   In this respect, the Chief shall ensure that the Regional Director of Crown Attorneys:

   1. considers whether all possible criminal charges have been appropriately investigated; and
   2. whether charges should be laid against a member;

   This process of consultation shall be reduced to writing."

4. c. The Force agrees in part. The Board requests a review of the Crown Attorney's role on the PSRC in light of a regulation aimed at reducing the investigating officers discretion, by requiring that matters be brought before the Crown Attorney.

   The PSRC is mandated to review allegations of criminal misconduct by members of the Force, and the Director of Regional Crown Attorneys is a committee member. Investigators do not have any discretion in whether matters should be brought before the PSRC. The Six Month Report of Professional Standards Review Committee stated "The Regional Director of Crown Attorneys, Mr Jerome Wiley, has expressed an opinion that the PSRC is the best format for deciding these matters in an open and thorough manner". As a result, the PSRC and the Crown Attorneys role with the committee, fulfil a vital and needed function.

   The current procedure, requires matters involving criminality and serious breaches of discipline be brought before the PSRC. The committee must then determine if all appropriate charges have been investigated, and what charges, if any, should be laid. These decisions are committed to writing at each PSRC meeting.

4. The Chief (shall) report to the Board at its first meeting in October as to:
   4. mechanisms within the Force that will be reviewed by the PSRC to ensure that in all furture cases where members of the Force have been the subject of an arrest, where any such arrest has occurred which is inconsistent with the terms of the Criminal Code, disciplinary charges shall proceed against the officer who carried out the arrest.

4. d. There are mechanisms, both externally and within the Force, that ensure disciplinary charges would proceed against a member who affects an arrest inconsistent with the terms of the Criminal Code. These mechanisms include the Criminal Justice system, which reviews each charge brought before a Court to ensure that the actions of an officer are consistent with the terms of the Criminal Code.

   The Forces internal discipline system, the Rules and Regulations of the Force, and the supervisory structure of the Force are designed to ensure the requirements of the Criminal Code are followed.

   The same standards and safe guards are in place for members of the Force, as there are for members of the Public, to ensure that all conditions and requirements of the Criminal Code are met.

   However, unlike general criminal matters, those criminal matters involving members of the Force are reviewed by the PSRC, as is the arrest procedures of the investigating officers. If the arrest is inconsistent with the terms of the Criminal Code, disciplinary action will be proceeded with at that time, if there is evidence of misconduct.

4. e. mechanism within the PSRC and the Office of the Deputy of Support Command to ensure an optimum flow of information among the Internal Affairs Unit, The Public Complaints Investigation Bureau, (the "PCIB"), and the Sexual Assault Squad, (the "SAS"), in connection with their investigation of members of the Force to ensure:
   1. there is no duplication of efforts or investigation as between Internal Affairs, the Public Complaints Investigation Bureau or any other investigative unit; Any possible conflict or duplication of investigative efforts shall be resolved as early as possible by the Deputy Chief of Support Command;
   2. confidentiality is maintained in appropriate cases.

4. e. The Force agrees in part. The Boards' resolution 11 explains why the Sexual Assault Squad is included in the list of above units. The Force disagrees with the Sexual Assault Squad investigating internal matters of discipline or criminality. The Force's response to resolution 11 goes into greater depth on this matter.

   The Force agrees with ensuring the optimum flow of information between all units involved in internal investigations of officers. The Professional Standards Unit and the Office of the Deputy Chief of Support Command monitor ongoing investigations to ensure there is no duplication of efforts. To ensure an optimum flow of information will require the appropriate technology, and currently attempts are being made to provide a computer network for Internal Affairs, the Public Complaints Investigation Bureau, the Trial Preparation Bureau, the Professional Standards Unit and the office of the Deputy Chief of Support Command. Such a computer network would allow greater flow of information between all the involved units.

   The OCCPS Report recommendation 15 mentions mechanisms to ensure the optimum flow of information between these units. The Report also comments on the suggestion of having a central clearing house within the Force to deal with the assignment of investigations involving allegations against officers.

   With regards to public complaints, section 81 and 82 of the Police Service Act places the responsibility for such decisions relating to the assignment of investigations with "the person in charge" of the Complaints Bureau. There are no provisions in the Act for removing this responsibility, nor for converting or changing it. As a result, in order for this Force to comply with the legislation, all public complaints must go through the Unit Commander of the Public Complaints Investigation Bureau (PCIB). Other investigations, that are not public complaints, are dealt with by the Internal Affairs Unit, or at the field unit level. The more serious of these are monitored by Internal Affairs and subsequently reviewed by the PSRC. Less serious discipline matters are dealt with by the Unit Commander pursuant to section 59 of the Police Services Act (Informal Discipline).

   The PSRC has recommended an internal discipline procedure (see Board letter 1992.09.23, Six Month Report of Professional Standards Review Committee, Appendix E) that will provide a review mechanism for discipline dispensed at the Unit level by the Unit Commander.

   The Unit Commander of the PCIB may decide that certain complaints require intensive investigation, such as electronic surveillance, undercover investigators or mobile visual surveillance, while maintaining confidentiality to protect the integrity of the investigation. The Unit Commander of the PCIB, in consultation with the Unit Commander of Internal Affairs, the superintendent of Professional Standards and the Deputy Chief of Support Command, will delegate Internal Affairs to conduct such investigations, and report the results back to the Unit Commander of the PCIB so that the further requirements of the Police Services Act are fulfilled. Criminal or disciplinary charges may be laid, but in either case the investigation must be brought before the Professional Standards Review Committee. In all cases, however, the Deputy Chief of support Command will adjudicate the matter and report to the complainant and the Public Complaints Commissioner (PCC) on the outcome.

   In these instances the Unit Commander of the PCIB may invoke Section 79(1) of the Police Services Act which permits the investigation to proceed without notifying the involved officer or issuing interim reports. In such cases the Office of the PCC is notified of wht action is taken, that Internal Affairs is investigating the incident, and that a final report will be forwarded to the PCC office upon completion of the investigation.

   2. The Force will endeavour to ensure the confidentiality of the complainant to the full extent provided by law, when such requests are made.

      A more difficult issue is where anonymity is requested by an informant who does not wish to be identified to the police officer. There is no provisions within the Police Services Act for this category of public complaint, and Police Forces stand to lose important information of deviant officers if this situation is permitted to continue.

      It must be addressed in some form. Changes made to the current legislation to allow for a signed waiver, such as the one advocated in recommendation #14 of the OCCPS Report, may be the avenue that needs to be explored in order to remedy this problem.

4. f. standards that will apply where any of the work of the PSRC has been delegated to Unit Commanders. These standards shall include:
   1. The PSRC may delegate the authority to review certain classes of investigation and decisions whether to lay charges but in no event, to any officer below the rank of a Unit Commander;
   2. Such Unit Commanders shall be directly accountable for their decisions which will be reviewed by the PSRC on a regular basis and the decisions of the Unit Commander and the review by the PSRC shall be documented.

4. f. No work of the PSRC is delegated to Unit Commanders. Investigations are assigned as outlined in the Force response to resolution #4.e. The PSRC review investigations done at other levels. The Committee, (acting on the Chief's behalf), having the benefit of senior officers, the Force Legal Advisor and the Regional Director of Crown Attorney's, can review investigations from many different points. The committee also has the benefit of directing further investigation be done if required.

4. g. the written decisions of the PSRC shall be made available to the Board on a formal and regular basis.

4. g. The Force agrees with this resolution. An account of cases reviewed and the decisions and rationale for them will be provided to the Board by the Chair of the PSRC. Such an account shall encapsulate the minutes of the PSRC meeting, and must be sufficient to ensure that the board is able to fully and adequately fulfil their obligations to the public as an oversight body, and to ensure fair and equitable treatment of police officers in the area of internal discipline. Such reports must also be of a nature, that they do not compromise the appellant function of the Board as mandated in Secion 63 of the Police Services Act.

4. f. No work of the PSRC is delegated to Unit Commanders. Investigations are assigned as outlined in the Force response to resolution #4.e. The PSRC review investigations done at other levels. The Committee, (acting on the Chief's behalf), having the benefit of senior officers, the Force Legal Advisor and the Regional Director of Crown Attorney's, can review investigations from many different points. The committee also has the benefit of directing further investigation be done if required.

5. Commencing immediately, the chief shall ensure that where an officer resigns and allegations of wrongdoing against the officer that [sic] are either under investigation or disciplinary charges are not yet disposed of, the circumstances of the resignation shall be recorded in the officer's personnel file and noted in the employment reference by the Force. Further, for all future applications to the Force, the Chief shall ensure that a waiver is obtained pursuant to the Municipal Freedom of Information and Protection of Privacy Act, (MFIPPA), such that their past records of employment may be checked. This waiver, and uses to which it is subsequently put, must be consistent with the protection accorded employees pursuant to the MFIPPA and the Ontario Human Rights Code.

5. The Force agrees with this resolution, and steps are being put into place to ensure that such measures are taken. This matter has also been addressed in the Force's response to resolution #3.

6. Commencing immediately the Chief shall ensure that the conduct of disciplinary proceedings continues to occur in a manner consistent with the Act rather that the Bill of Rights and that the Chief shall take all appropriate steps to continue to ensure that;
   1. subject to a stay being requested pursuant to the Act, disciplinary charges will be laid and prosecuted independently of any criminal proceedings; and
   2. disciplinary charges shall be proved if the evidentiary burden establishes clear and convincing evidence as against a member of the Force.

6. The "Police Officers Bill of Rights" is now redundant as the rights of Police Officers are now entrenched within the Police Services Act. The Force therefore undertakes to ensure that disciplinary proceedings continue to occur in a manner consistent with the Act.
   1. A stay of prosecution is requested after charges have been laid, not before, as this section seems to indicate. This is the current practice.
   2. This is the current practice of this Force, pursuant to Section 61 of the Police Services Act.

7. Commencing immediately the Chief shall ensure that any use of the Police Computer Network ("CPIC") by members of the Force for reasons other than the necessary performance of police duties shall result in the laying of criminal and/or disciplinary charges. Further, the Chief shall immediately issue routine orders requiring any member of the Force, who believes that access to CPIC may have been carried out by another member other than as required for police duties, to report the matter to the attention of the Unit Commander responsible for discipline within the Force.

7. The Force concurs with the need for security of the CPIC system. Where evidence of misconduct supports the laying of disciplinary or criminal charges, such charges shall be laid expeditiously, and fully prosecuted as provided for in the Criminal Code, or the Police Services Act, as the case may be.

8. The Chief shall immediately put into place routine orders which address circumstances where an officer is the subject of an Undertaking or Recognizance entered in [sic] pursuant to his or her release on pending criminal charges. In this regard, the Board specifically directs the Chief to address the following issues:
   1. the rise in domestic violence against women both leading to and following the laying of criminal charges:
   2. the concern of the Board that there be no gender bias with regards to decisions as to whether to charge [sic] a breach of Recognizance or Undertaking;
   3. The inherent power imbalance that exists with regards to victims of domestic assault in facing their abuser in the context of the prosecution of charges.

8. The Force agrees that with regards to recognizances, that Officers be treated in the same manner as any other citizen, based upon the same set of circumstances.

   A Routine Order has been published (#1462 - 92.09.10) expressing the Forces's concern about domestic violence, and outlining the required police response. A further Routine Order has been published stating that:

   BREACH OF RECOGNIZANCE INVOLVING DOMESTIC VIOLENCE

   The Force recognizes the rise in domestic violence both leading up to and following the laying of criminal charges, and the inherent power imbalance that exists with regards to the victims of domestic assault in facing their abuser in the context of the prosecution of charges. As such, when any person, regardless of their gender, breaches a recognizance or an undertaking that was entered into as a result of an allegation involving domestic violence, that person shall be dealt with according to established procedures. If the person involved in the recognizance or undertaking is a member of this Force, they shall be treated in the same manner as any other citizen.

9. Commencing immediately, the Chief shall consult with the Police Complaints Commissioner, ("PCC"), and report back to the Board within one month hereof as to the advisability and means, including legislative amendment, by which complainants filing complaints at a police division or the PCIB, pursuant to Part VI of the Act, may waive the right to have the complaint monitored by the PCC.

9. The Force agrees with this resolution, and advocates that the legislative changes be enacted which would provide for such a waiver. A meeting has been sought with the PCC, to address the Force's concerns in this area, as outlined in the Force's response to recommendation #4.e.ii.

10. The Chief shall henceforth conduct his review of investigations of misconduct, pursuant to section 90 of the Act, by applying the following evidentiary standards:
    1. only reasonable and probable grounds will be required to warrant:
       1. holding a disciplinary hearing;
       2. ordering a hearing by a Board of Inquiry; or
       3. causing criminal charges to be laid and to refer the matter to the Crown Attorney for prosecution;
    2. however, clear and convincing evidence must exist to justify admonishing an officer
    3. there must be a determination that there is a lack of reasonable and probable grounds to decide to take no further action.

    Corroboration should not be a prerequisite for further action being taken in all of the above matters. All the above decisions shall be documented and made available to the Board on a formal and regular basis.

10. The Force disagrees with this resolution. Section 90 of the Police Services Act indicates that the Chief shall make a decision after reviewing the final report. This section is silent on the evidentiary burden of proof that is required. This section requires the Chief to adjudicate over the matter and, as such, places him or her in a position that is closer to preliminary enquiry, than to simple informant.

    The application of the "reasonable and probable grounds" evidentiary test for the Force, would be unlike any other police force in the Province of Ontario. As such, the officers of the Force would receive unequal treatment, which would be unfair.

    Finally, there is no provision within the Police Services Act for the Board to change or modify the evidentiary burden of proof, and this must be left to the Chief, as directed in section 90 of the Police Services Act.

    With respect to corroboration, the Force agrees that it is not an absolute prerequisite to further action. However, it must be considered, if available, in determining what further action is warranted.

11. The Chief shall report to the Board within one month's time on strategies to:
    1. ensure that the Sexual Assault Squad is directly involved in all investigation of sexual offenses, especially those in which the alleged assailant is a police officer;
    2. provide support to persons complaining of sexual offenses, especially where the alleged assailant is a police officer and encourage their cooperation with investigations and disciplinary proceeding and/or criminal prosecutions;
    3. commit the Force to support the vigorous prosecution of all sexual and ofther offenses of violences against women.

11. a. The current mandate of the Provincial Special Investigative Unit (S.I.U.) now includes sexual assaults committed by police officers. As a result some investigations may be removed from the control of the Force by the S.I.U. based upon their mandate.

    Due to the nature of internal investigations, and the variance in mandates between the Sexual Assault Squad and Internal Affairs, and the need for confidentiality of investigations and records, it is believed that all internal investigations should continue to be conducted by Internal Affairs. Further, this ensures that all internal investigations, and all other aspects of internal discipline remain under the control of the Deputy Chief of Support Command.

    Internal Affairs has recently had the benefit of receiving into the unit a long time member of the Sexual Assault Squad, along with another experienced Sexual Assault investigator. These officers will conduct in-house training sessions which will augment the existing expertise, and enhance the capability of Internal Affairs to deal with victims of sexual assualt with the same sensitivity and investigative proficiency as displayed by the Sexual Assult Squad.

    2. The Force agrees with this recommendation. Further, the Force recognizes the unique and devastating nature of this type of crime. As such the Force will continue to provide encouragement and guidance to the victims of these crimes, mindful of the fact that the Force's interaction with the complainant will have a lasting effect, and have a direct impact upon the complainants recovery from the incident.
    3. The Force agrees to support the vigorous prosecution of all sexual assaults and other offenses of violence.

11. The Chief shall report to the Board within one month hereof on the mechanisms the Board may consider to ensure that victims and/or complainants are advised of the progress of disciplinary proceedings against members of the Force and encouraged to participate in such proceedings, including cooperating with community agencies which provide counselling and advocacy support. In particular, the Chief shall consider and report to the Board on mechanisms:
    1. to ensure all victims and/or complainants are, and will continue to be, provided with written notice of the time and place of the disciplinary hearing;
    2. to provide victims and/or complainants with the opportunity to ask the hearing officer to protect their anonymity and to hold the hearing in camera;
    3. to provide all victims and/or complainants, whether or not they participated in the hearing of the allegation against the officer, with input into any sentence passed by the Trials Officer by means of a Victim Impact Statement. Such a statement may be provided to (sic) Trials Officer in written form or it may take the form of oral statements. In the latter case of oral statements, these should not be required to be made under oath or to be the subject of cross examination. However, the Officer, or his or her counsel, should be provided with appropriate disclosure of the complainant's concerns in advance of the hearing. Victim Impact Statements shall be included in all reports to the Board.

11. The Force currently has programs and monitoring mechanisms in place that insure that a complainant is afforded the assistance required in these most difficult of circumstances. Access to these programs is ensured though Administrative Procedures, supervisory personnel, Unit Commanders, and the PSRC.
    1. The Force agrees, and this will continue to be the practice.
    2. The Force agrees, and Trials Preparation will continue to seek In Camera hearings on the witnesses behalf in all instances where confidentiality is an issue. Anonymity, however, cannot be guaranteed in a hearing process.
    3. The Force disagrees with this recommendation, as it is inconsistent with the principles of law. The evidence adduced via the Victim Impact Statement must be proved by the Crown, if disputed by the defence (R vs. Gardiner, 1982 30 C.R. (3rd) pg. 289). Secondly, the very nature of the statement involves intimate details and feelings of the witness.

       The rationale for divulging such information to the Board is unclear, and potentially unnecessary. The witness must be assured of the confidentiality of such documents, and feel confident that distribution will be restricted to counsel, the prosecutor and the adjudicator.