Justice Michael Tulloch’s report into police oversight in Ontario makes 129 recommendations including call for release of all future and past Special Investigations Unit (SIU) director’s reports
Crucial information about investigations into deaths involving officers in Ontario will soon be routinely disclosed to the public following the release Thursday of a sweeping report on police oversight.
Ontario will also now require police watchdogs to begin collecting demographic data, including statistics on race, ethnicity and Indigenous status, Attorney General Yasir Naqvi announced shortly after the release of the much-anticipated Independent Police Oversight Review, led by Court of Appeal Justice Michael Tulloch.
“I’ve seen a great appetite for change in the province,” Tulloch told a packed conference room at a downtown hotel Thursday afternoon.
“The people of Ontario are entitled and deserve to know that, when it comes to the operation of police services in the province, justice is not only done, but is seen to be done.”
Tulloch’s report makes 129 recommendations to improve police oversight in Ontario. These range from measures to increase transparency to the creation of a new professional policing college to the drafting of special watchdog legislation separate from the province’s Police Services Act.
Calling the report “extremely thoughtful,” Naqvi committed to taking immediate action on key elements of the report — “our work begins today,” he said — although he did not commit to the wholesale implementation of Tulloch’s report.
Naqvi said he would move on a central recommendation: the call for the release of past and future Special Investigations Unit (SIU) director’s reports detailing cases where the watchdog has deemed no criminal charges should be laid.
However, the release comes with the significant caveat that no identifying information about officers or witnesses be released.
On the “polarizing” issue of naming officers who used lethal force, Tulloch and the review team determined the release of the officer’s name was not necessary.
“Releasing the officer’s name would not make the SIU investigation any better. And it would not improve transparency in a meaningful way. That is, it would not make it any easier to understand what the SIU did to investigate, or why the SIU did not lay charges,” the report states.
That decision drew significant criticism from rights’ groups Thursday, including from members of Black Lives Matter Toronto, whose protests of shootings of black people involving police helped prompt Tulloch’s government-commissioned review last spring.
Calling the decision to release all SIU director’s reports a “very, very positive step in the right direction,” Pascale Diverlus, a co-founder of the group, said she is, nonetheless, upset the names of officers won’t be routinely disclosed, saying they should be released in every case.
Donardo Jones, director of legal services with the African Canadian Legal Clinic, was equally disappointed, saying he doesn’t understand why the consideration for possible retaliation against officers was given so much weight — particularly when the names of officers will ultimately come out at a coroner’s inquest.
“The fact that police are being given special recognition, I think is almost a double standard,” he said. “Police are no exception; their job doesn’t put them in some kind of sacred space.”
Ontario’s information and privacy commissioner Brian Beamish has previously said officers’ names may be disclosed in “circumstances of significant public interest,” despite government claims they are protected under freedom of information and privacy legislation.
Tulloch’s report says the calls for releasing officer names is a “by-product” of public mistrust of police oversight, caused in large part by a lack of transparency.
He, therefore, recommends the watchdog must begin publicly releasing, on its website, the SIU director’s report, a document that currently can only be seen by Ontario’s attorney general. The report must contain a “detailed narrative of the event,” the reasons for the director’s decision, any audio, photo or video evidence, and more.
“The public needs to know whether the SIU is doing the job it is supposed to be doing,” the report states.
Tulloch also called for the release of all previous director’s reports into police-involved deaths — prioritizing cases where no coroner’s inquest was held — but says the names of officers and witnesses must be withheld.
Naqvi committed to releasing those past reports, saying the timeline for the release from 2005 to today is December, and that, by summer, 2018 the government will release reports from 1990 to 2004.
Answering fervent calls from rights groups, including the Ontario Human Rights Commission, the report recommends oversight agencies begin collecting demographic data, including data related to gender, age, race, religion, ethnicity, mental health status, disability and indigenous status. Advisory committees should be established to advise the agencies on the best practices of data collection, it recommends.
Tulloch said Thursday that the data was vital for evidence-based policy and decision-making, accountability and transparency, and, if used properly, it may build public confidence in policing and police oversight.
University of Toronto criminology professor Scot Wortley praised Tulloch for the recommendation. The lack of data has made attempting to research racial disparities in the justice system “exceedingly difficult,” Wortley said.
“In many ways, I think the lack of data has contributed to the crisis in confidence that the justice system has experienced over the last few years,” Wortley said in an interview.
“Rightly or wrongly, it can give the impression that the system has something to hide, and I think this (recommendation) will go a long way toward helping discovering disparities and addressing them.”
In a brief statement issued after the report’s release, SIU director Tony Loparco said the agency welcomed the review, but will need time to consider the contents carefully.
“That being said, I am committing the SIU to take the steps required to implement the recommendations that may be legislated, with the increased resources Mr. Justice Tulloch has deemed necessary to conduct civilian oversight properly,” Loparco said.
Tulloch recommends the creation of a regulatory body for police officers to create a culture of professionalism, just as many other professions in Ontario, such as doctors, lawyers and teachers, have in place.
Policing, Tulloch said, “should be seen as a distinguished profession.”
He recommends that the College of Policing develop a “curriculum for a professional degree in policing,” which would incorporate areas such as mental health, domestic abuse, the serving of vulnerable communities, and anti-racism and equity studies.
The college would set ethical and professional standards for the job of police officer, and should work to create a police culture “that is more progressive and inclusive,” describing the traditional culture as “white, male and hyper-masculine.”
While Tulloch’s review received praise for being a step in the right direction, many stressed the importance of moving from talk to action.
“The million-dollar question is whether the government will act on the report,” said former SIU director André Marin, who, in his subsequent role as Ontario ombudsman, prepared two reports on the SIU.
“This report is a courageous and important step forward towards restoring the public’s confidence in our police. It is critical for these recommendations to be implemented as soon as possible,” said Daniel Brown, a Toronto director of the Criminal Lawyers’ Association.
Tulloch’s review was commissioned by the Liberal government last spring, amid growing controversy about police use of force and mounting public pressure for greater transparency from police watchdogs, including the SIU.
The review, tasked with “enhancing the transparency and accountability” of Ontario’s police oversight bodies, was struck after weeks of protest sparked by the SIU’s decision to clear an unnamed Toronto police officer in the July 2015 death of Andrew Loku, a mentally ill South Sudanese man shot dead in the hallway of his apartment building.
The SIU ruled the officer’s lethal force was justified because Loku was advancing on police while holding a hammer.
The watchdog did not explain how investigators weighed evidence from an eye witness who said Loku did not pose a threat at the time.
The decision prompted a 15-day camp-out by Black Lives Matter Toronto outside police headquarters.
Demonstrators demanded the name of the officer who shot Loku and more information about the incident.
Tulloch also recommends the SIU, the Office of the Independent Police Review Director (OIPRD) and the Ontario Civilian Police Commission (OCPC) have their own legislation, separate from Ontario’s Police Services Act. “It could confirm their importance and their independence,” the report says.
“The recommendations for the OIPRD in the report would, if implemented and properly resourced, increase the transparency and accountability of the complaints system,” said Gerry McNeilly, independent police review director.
Karyn Greenwood-Graham, whose son Trevor Graham was killed by Waterloo police in 2007 and who runs a group for families affected by fatal police incidents, commended Tulloch for “reminding the Ministry of the Attorney General of what it’s supposed to be doing.”
“I really would like to thank Justice Tulloch. The affected families of police homicide were heard, they were valued, and were treated very well in this whole process,” she said.
Joanne MacIsaac, whose brother Michael was shot and killed by Durham police in December 2013, said she was especially pleased that Naqvi is open to discussing legal funding for families at coroner’s inquests. An inquest into Michael’s death is set to begin in July, and MacIsaac and her family are looking to meet with the attorney general soon to discuss legal aid coverage.
“We sit around in these coroner meetings and the police officer has a lawyer there, the police service has a lawyer, the coroner has the Crown.
“We’re the only people who don’t have any funding for a lawyer,” MacIsaac said.
As for the recommendation to not name officers cleared of criminal wrongdoing, MacIsaac called the logic “silly,” as the names will eventually be released at the coroner’s inquest.
“Give us the names. Don’t make us wait,” she said.
Some critics argued that Tulloch did not go far enough in his recommendations on the participation of the subject officer in an SIU investigation.
While the judge recommended that the officer be compelled to turn over his or her notes that were drafted prior to SIU involvement, Tulloch did not suggest that the officer should also be compelled to give investigators an interview.
The rationale has always been that a subject officer has the same right to silence enshrined in the Charter of Rights and Freedoms as anyone else under criminal investigation, but observers have said it’s time to change that and let the courts decide whether this right actually applies to a police officer under investigation for actions taken while on the job.
“I recognize there’s a good argument that officers have the same Charter rights that you and I do,” said lawyer and former SIU director Howard Morton, who said the lack of recommendations on the issue was a disappointment.
“But I’ve always felt that they do not have the same Charter rights because they are not only public servants, they are public servants of the highest order, they are authorized to use deadly force, and, to say that an officer should not be required to subject herself or himself to an SIU interview, is simply wrong.”
Lawyer Peter Rosenthal, who has represented many families of people killed by police, shared Morton’s disappointment.
“I would recommend that (the subject officer) be required to give a statement, and then the courts would have the possibility of determining what, if any, use that statement would be.”
Morton said the recommendation that officers would be open to being charged with an offence for failure to cooperate with the SIU was “wonderful,” saying he often struggled as SIU director in the mid-1990s in securing cooperation. He did say, however, that he believes this has improved.
Failure to cooperate “should be an offence. The only way you can ensure cooperation is if there’s a penalty for failing to do so,” Rosenthal added.
Toronto Police Association president Mike McCormack told the Star the duty to cooperate with an SIU investigation has always existed, “and our officers have always cooperated fully with the investigators.”
Bruce Chapman, president of the Police Association of Ontario, said in a statement Thursday that Tulloch’s report “confirms what police officers have known for a long time: Ontario has a rigorous police accountability system in place.”
“No other jurisdiction in North America has more oversight than Ontario does, and we are pleased that we do . . . as it protects both the public and police officers.”