Canadian Journal of Criminology, October 1991|
(excerpts pp. 349-358)
The Future of Civilian Oversight
Toronto: A case study
As a result of the American civil rights movement in the 1960's and generally heightened awareness on the part of all North Americans as to their rights, the 1970's was a period of unrest in many Canadian cities and especially in Toronto. Conflicts between the police and Toronto citizens were numerous. The tension, in those years, was not only between police and the visible ,minority communities of the city but was more generalized and encompassed disparate factions of the community.
Of the citizens who had occasion to interact with police during those years, there were those who objected to the treatment they received at the hands of the police and complained of a lack of adequate response by the police force to their concerns. Many who had specific complaints they wished to make against specific officers were reluctant to approach the very force they were complaining about to lodge the complaint. At worst they feared reprisal, at best an inadequate response. Of those who did formally advise the force of their concerns, many were dissatisfied with the result. In some instances, complainants were warned that if they filed a complaint and it proved to be unfounded, they could be charged under the Criminal Code with public mischief. Others were simply never informed as to the outcome of the police investigation of their complaint. They were never told if the officer in question had been disciplined or, if so, the nature of the discipline which had been meted out. The suspicion was often that an officer who was the subject of a complaint would receive no more than a metaphorical slap on the wrist.
The community perception, in many cases, was that the collegiality within 'brotherhood' precluded consistent objectivity in the handling of complaints. The fact that officers rarely admitted to witnessing the misconduct of fellow officers created a 'blue wall of silence' which frustrated the public. This perception, which was held by many during those years, gave rise to tension and discontent with the fact that police no longer appeared to be fully accountable to the public they served. This general tension, exacerbated by particular incidents from time to time, spawned numerous calls for greater accountability by police. In the space of six years, no fewer than five reports examined different aspects of the interaction between the police and various segments of Toronto's population. Many of these called for some form of civilian oversight of the police to ease the conflict.
In response, in 1977, the then Solicitor General for Ontario introduced in the Legislature a bill which was the first attempt to involve civilians in the police complaints process province-wide (Ontario 1977). The proposed legislation, however, came under attack from both the police and the public and did not receive third reading.
In a second effort the following year, the Solicitor General instructed the Ontario Police Commission to develop a procedure for the handling of public complaints which was subsequently adopted by many local boards of commissioners of police by way of bylaw. Those arrangements, however, did not satisfy certain segments of the Toronto community.
Finally, in 1981, the government responded to the growing pressure in that city by creating, as a pilot project, the Office of the Public Complaints Commissioner pursuant to the Metropolitan Police Force Complaints Projects Act, 1981 (hereinafter referred to as the 1981 Act) (Ontario 1981). The Office was given jurisdiction only over the Metropolitan Toronto Police Force, specifically its sworn officers but not its civilian members.
While there had been much previous debate as to whether the police, civilians or a combination of the two should do initial investigations into complaints about police, the project legislation provided that, except in certain unusual circumstances, police would retain initial responsibility for the investigation of public complaints. Complaints could be lodged with either the force or the Office of the Public Complaints Commissioner, but regardless of where they were lodged, and whether orally or in writing, they were to be recorded and forwarded to the force for investigation. The force was required to set up a Public Complaints Investigation Bureau which was obliged to provide every thirty days an interim report to the parties on the status of the investigation. Such interim reports were also to be forwarded to the Public Complaints Commissioner who could thereby monitor the police progress in the matter and thus maintain public confidence in the system.
The 1981 Act also provided for the withdrawal of complaints by complainants and outlined a procedure for the informal resolution of complaints in writing on agreement of both parties.
On completion of an investigation, the Bureau was required to send a final report on the matter to the parties, the Public Complaints Commissioner, and the Chief of Police. The Chief could then decide either that the matter called for no further action or that discipline of the officer in question was warranted. In the latter instance, he or she could decide to reprimand the officer, hold an internal disciplinary hearing, order a civilian board of inquiry, or cause an information to be laid against the officer and refer the matter to the Crown Attorney for prosecution. The complainant, if not satisfied with the decision of the Chief to take no further action or reprimand the officer or with the outcome of an internal disciplinary hearing, could, within thirty days, request the Commissioner to review the Chiefs decision.
After conducting the review, the Commissioner could decide that no further action was warranted or could order a hearing by an independent civilian board of inquiry if he or she believed it to be necessary in the public interest. In more minor cases, such boards would consist of a lawyer sitting alone. In more serious cases, the panel would also consist of a person recommended by the Municipality of Metropolitan Toronto and a third person recommended jointly by the Toronto Police Association and the Metropolitan Board of Commissioners of Police. Misconduct had to be proved beyond a reasonable doubt with decisions of the board given in writing with reasons. When misconduct was found, the board would not be required to return the case to the Chief for penalty but, rather, would impose discipline directly on the officer. Penalties could range from a reprimand to dismissal from the force. A party to a hearing could appeal to Divisional Court within thirty days of receiving notice of the board's decision.
The 1981 Act also provided the civilian oversight body with another valuable tool. It empowered the Public Complaints Commissioner to make recommendations with respect to the practices or procedures of the force, or any law affecting the resolution or prevention of public complaints. It was recognized that, through investigating, monitoring, and reviewing civilian complaints, the Commissioner would be in a unique position to identify preventative measures that might be taken by police to avert future complaints.
It would appear that the Office satisfied the public need in the city and was, therefore, made a permanent operation three years later, pursuant to the Metropolitan Toronto Police Force Complaints Act, 1984 (hereinafter referred to as the 1984 Act) (Ontario 1986). For the next six years, the Office of the Public Complaints Commissioner remained the only civilian oversight body in the province.
Due to the fact that the Toronto complaints system was the result of negotiation with both police management and the Toronto Police Association, police in Toronto accepted the system initially. Both police management and the Association saw an opportunity to defuse considerable public hostility and, through enhanced community support, to improve officer morale.
Clearly, however, many officers soon came to feel uneasy with the concept. They felt unfairly singled out as the only officers in Ontario subject to such a system. In addition they were never adequately instructed in advance of the legislation as to how the system was to operate, including specifics of the various rights they were afforded under it. Thirdly, because the system was born of conflict, they felt that a watchdog had been imposed on them as a placebo to calm a vocal community and that police concerns had not been equally considered. In sum, police resented the operation, and a feeling rancour soon set in, quickly distilling into a desire on the part of the Toronto Police Association to destroy the Office.
In 1985, matters came to a head. The Public Complaints Commissioner ordered a hearing by a civilian board of inquiry into allegations by a member of the public that an officer had assaulted him and caused a permanent physical disability. While the Chief of Police had dismissed the complaint as requiring no further action, the board found the officer to be guilty of the misconduct alleged, and ordered him to resign or be dismissed from the force. That finding was appealed to Divisional Court and the Association used the appeal as a vehicle for waging war on the Office (Ontario Divisional Court 1987). The legal challenge specifically alleged that the legislation creating the Office offended the provisions of the Canadian Charter of Rights and Freedoms, that it infringed the right to trial by an independent and impartial tribunal, and violated the equality provisions of the Charter to the extent that not all Ontario police officers were subject to its strictures. The appeal was not successful.
The Association also attempted to derail the system and render it ineffective by launching a public campaign designed to discredit the process. In its publication 'News and Views', the Association's President wrote that "The
Association fervently believes that the only good external complaints system is a dead complaints system" (Walter 1987). After losing the Court appeal, officers withdrew some services by refusing to summon drivers for parking and moving infractions. Public sentiment, however, was not in their favour. In fact, the publicity surrounding the case had an ultimate effect very different from that intended. It heightened public awareness of and support for the Office of the Public Complaints Commissioner and, in fact, eventually led, through a dramatic series of connected events, to the expansion of the system throughout the province.
In 1986, Bill 90 (Ontario 1984) was introduced in the Legislature to provide for the extension of the services of the Office of the Public Complaints Commissioner across Ontario on an opt-in basis. That bill had not been made Iaw, when two black males were fatally shot by Toronto and Peel Region police in August and December of 1988 respectively. The outcry from Toronto's black community was deafening and, in response, the Ontario Solicitor General struck the Task Force on Race Relations and Policing to report on relations between police and visible and minority communities throughout the province with a view to recommending ways in which better relations could be fostered. The Public Complaints Commissioner was named Chair of the Task Force. While civilian oversight mechanisms for the handling of complaints about police were not within the Task Force's terms of reference, many of the oral presentations and written briefs touched on this issue and revealed chat there was much disparity between, and little independent monitoring or review of, police-controlled complaints systems throughout Ontario. The Task Force Report, therefore, confirmed the demand and need for a standardized process of civilian oversight throughout the province.
As a result of information and views conveyed to it by the Task Force upon completion of its work, the government developed Bill 107 to provide for the expansion of the Toronto civilian oversight model on a mandatory basis across the province. the shooting of the third black male in Toronto in May of 1989 hastened Third Reading of Bill 107 and Royal Assent which was given to the bill in June, 1989. The Police Services Act, 1990 (hereinafter called to as the Act) (Ontario 1990) was proclaimed in force on December 31, 1990. Part VI of the Act repealed the former Metropolitan Toronto Police Force Complaints Act, 1984 and, in its stead, established a province-wide police complaints system.
The Ontario police complaints system
Essentially the new Ontario system is based on the Toronto model which was operated by the Office of the Public Complaints Commissioner. The jurisdiction of that office , newly named the Office of the Police Complaints Commissioner, extends to cover all municipal and regional forces in the province as well as the Ontario Provincial Police. The office reports to the Attorney General and is responsible for overseeing the handling of complaints made by members of the public concerning the conducts of all sworn Ontario Police Officers.
The Act requires that every Ontario police force either establish a separate unit to act as its public complaints investigation bureau or make contractual arrangements with another police force for the use of its bureau. Public complaints can now be lodged at any such bureau, any station or detachment of any police force, or at an office of the Police Complaints Commissioner. Regional offices of that operation are being opened in various centres around the province.
The new legislation, while patterned in the Toronto approach, represents a departure from it in several unique ways.
Firstly, a complaint must now be lodged within six months of the alleged misconduct, unless the Commissioner, on request, extends the time for making the complaint.
The Act now also provides that, in exceptional circumstances and at the direction of the Attorney General, the Commissioner, himself or herself may lodge a complaint to initiate the process, This change responds to concerns that the former statute only permitted persons who witnessed or were otherwise directly affected by the alleged misconduct to file a complaint.
Similarly, the Commissioner can decide, again on his or her own initiative, to review the decision of a Chief of Police on a complaint, whether or not there has been a request by the complainant in the matter to do so.
Part VI of the Police Services Act, 1990 further incorporates a number of significant changes with respect to the conduct of boards of inquiry. It provides for the creation of a provincial tribunal to be headed by a full-time Chair with a permanent staff including a Registrar. Hearings will be held, when possible, in the region where the complaint arose and will be heard by a panel of three part-time members from that region of the province. The hearings will be chaired by members of the Law Society of Upper Canada recommended by the Attorney General. The other two panel members, who may or may not be either lawyers or serving police officers, will be drawn from rosters of appointees recommended by the Police Association of Ontario and the Association of Municipalities of Ontario respectively. The Police Complaints Commissioner will be a party to, and have carriage of, proceedings before the boards of inquiry. The alleged misconduct of the subject officer must now be proven "on clear and convincing evidence" rather than beyond a reasonable doubt as dictated by the former legislation.
Future prospects for civilian oversight
Police officers in Ontario have had only a short time in which to become familiar with the expanded public complaints system and how it affects them. In these early days, there is, with police ranks, a prevailing skepticism and unease with the concept of civilian oversight in general, and with particular aspects of the legislation such as its application to off-duty conduct and its impact on the mandate of the internal affairs units of the province's police forces. This initial wariness, together with the difficulties which were encountered by the Toronto office, make it tempting to imagine storm clouds on the horizon and predict a dubious future when contemplating the long-term evolution of civilian oversight of police in Ontario.
It is necessary, however, to determine how, in fact, the success or failure of such a system is to be measured over time. Several years into the future, one could look to various factors as indicators of success. The system could be seen to be validated by an acknowledgement on the part of the public in general that the service is one which is needed and used. Volume of complaints filed would be the gauge of such need. One could argue that the greater the number of complaints lodged, the greater the system's perceived value. Conversely, a decline in the number of complaints over time would indicate that members of the public believe the system to be ineffectual and lacking faith in its ability to redress wrongs, simply cease lodging complaints. However, reduction in the number of complaints lodged over time could also indicate that the expansion of the Office of The Police complaints Commissioner province-wide has had a positive impact on police behaviour and, by its very existence, has acted as a deterrent to misconduct.
It might, therefore, be more precise to measure the eventual success or failure of the system by the degree to which individual complainants are satisfied with the disposition of their particular cases. This would involve , at some future date, an examination of the extent to which those who use the system felt their concerns had been handled both fairly and expeditiously. It would also entail a study of the degree to which the process provides an independent forum for the airing of concerns by more marginalized groups, including native Ontarians.
While the complaints system was created for the benefit of the Ontario public, perhaps, ultimately, the most telling indication of the efficacy of the system must be the long-term police response to it. If police officers in Ontario, after a period of adjustment, come to accept, and even endorse the system as being fair, then the system will survive as a viable process.
To that end, every effort has been made not to repeat the manner in which the Toronto system was inaugurated, but rather to educate police personnel early on, not only regarding the mechanics and legalities of the system, but also regarding the philosophy and community concerns which gave rise to the legislation in the first instance.
Police throughout Ontario must also come to believe that it is not impossible to create a common system of oversight which will work equally well for all parts of such a large and diverse province. Many of their numbers question whether a service which was developed in Toronto to meet the needs of a large, multi-racial, urban centre is suitable to meet the needs of smaller, more rural or more homogeneous locales. In view of some, the new system is both too expensive and too cumbersome for the needs of many areas of the province. To survive, the system will have to live up to its promise of being flexible and sensitive to local needs. If police, in the future, see that regional offices of the Police Complaints Commissioner are staffed locally, and that board of inquiry members are selected locally, their alienation from the genesis of the system will abate and their sense of need for such a system, and ownership in it, will increase. As the system matures and evolves beyond its Toronto roots, police in other parts of the province will come to view it as a means of improving not only race relations but human relations in their respective communities.
In fostering harmonious relations between the police and the community, the Office of the Police Complaints Commissioner must assume a significant role. Historically, the Office in Toronto has provided a mechanism for the furtherance of better relations between the two groups. The expanded Office must become even more proactive and, through outreach efforts, provide individuals and community groups throughout the province with an effective method of voicing concerns about police conduct. Such information can then be passed on to police management to enable it to either take remedial or preventative action. the forging of an alliance between police and the public through mediation must continue to be a vital and positive aspect of the Office's mandate. To succeed fully, the Office must develop not only as a means of disciplining individual officers but also as a forum for the consideration and resolution or more generalized contentious matters. Through learning of and sharing of public values and expectations, police will, of necessity, receive greater job satisfaction . In addition, by enlisting the participation of the public, including the visible minority public, in accomplishing appropriate service delivery, they will be guaranteed societal approval and support.
Police must also be assured that being subjected to a civilian review body is not necessarily a sign of lack of trust in their ability to treat public complaints seriously and effectively discipline members. Many forces in Ontario have always handled public complaints to the complete satisfaction of the communities they serve. While others have not been as successful, the new complaints legislation does not assume that police cannot or were not properly investigating and disposing of public complaints. To the contrary, it acknowledges that the right and the obligation to discipline members of a police force should remain with police management as its responsibility. The legislators did not opt for a purely civilian system of handling public complaints as was called for by various segments of the population. Rather than removing police from the process, they stipulated that police should continue to perform the initial investigation of most complaints, thereby encouraging management to be responsive to public concerns. To the degree police are successful, harmony between police and the community will be improved.