Police Services Act must be amended to ensure police are accountable & transparent

Update:

After a January 2015 shooting involving police, officers attempted to access and copy security footage ahead of civilian investigators, according to a letter from the SIU to Toronto’s police chief. photo by fightyourtickets.ca

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Under the Police Services Act, Ontario police forces are under no legal obligation to respond to letters the SIU sends that include concerns about police actions.

In a dozen investigations, the SIU says police appear to have violated their legal duty to co-operate with the provincial watchdog, including allegations police failed to immediately notify the SIU of a serious civilian injury or interfered with a scene after the watchdog took over an investigation. photo by fightyourtickets.ca

Allegations of police behaviour that “threatened to undermine the integrity” of investigations.

A delay that denied the public “the benefit of a thorough investigation into serious allegations of police misconduct.”

Repeated complaints of officers waiting weeks, months, or in one case, nearly four years before reporting serious injuries suffered by members of the public during police interactions.

More than 150 recent letters sent from the director of Ontario’s Special Investigations Unit (SIU) to the Toronto police chief, obtained by the Star through a Freedom of Information request, reveal new cases of what the watchdog considers problematic officer conduct uncovered during probes of police-involved deaths, serious injuries or allegations of sexual assault.

Toronto police say they investigate every concern raised by the SIU and take remedial action wherever necessary.

In a dozen investigations, the SIU says police appear to have violated their legal duty to co-operate with the provincial watchdog, including allegations police failed to immediately notify the SIU of a serious civilian injury or interfered with a scene after the watchdog took over an investigation.

In one case, SIU director Tony Loparco said it was “extremely lucky no one was shot” when an unnamed Toronto officer attempted to arrest a mentally ill person while carrying a C8 carbine rifle, and the person “reached for the trigger on a crowded street,” Loparco wrote in a December 2015 letter to Chief Mark Saunders.

In another case, SIU acting director Joseph Martino said officers risked jeopardizing public confidence in an investigation into a January 2015 police-involved shooting when they attempted to access and copy security footage before civilian investigators — an issue identical to the one that would arise again six months later in the high-profile fatal shooting of Andrew Loku.

The SIU director writes a letter to the chief at the completion of every SIU investigation involving Toronto police. In the majority of the letters obtained by the Star, written from September 2013 to May 2016, no issues are raised about officer conduct.

But in probes where the SIU identifies police behaviour it finds concerning, or about which the watchdog wants more information, the SIU director often requests that the chief look into the matter and report back.

“I would ask that your service take a close look at the questionable conduct of these officers and to write to this office with the results of your inquiries,” Martino wrote in his Aug. 31, 2015, letter to Saunders regarding the attempt to download surveillance video.

Toronto police have “made it clear” they do not respond in writing, an SIU spokesperson said — because the SIU has no authority under the Police Services Act to ask chiefs to investigate officer conduct. photo by fightyourtickets.ca

But police chiefs are not legally obligated to respond to these letters — Toronto police have “made it clear” they do not respond in writing, an SIU spokesperson said — because the SIU has no authority under the Police Services Act to ask chiefs to investigate officer conduct.

Toronto police says its professional standards unit investigates “each and every comment” in SIU letters and reports back to the police board.

“Discipline and training are applied where appropriate,” said Mark Pugash, a spokesperson for the Toronto police.

Critics say the watchdog nonetheless repeatedly raises the same complaints — and regulations intended to safeguard the watchdog’s independence are “continually and regularly ignored by police services with impunity,” said André Marin, a former Ontario ombudsman and past SIU director.

“The problem here is that there is no consequence attached to police thumbing their nose at the SIU and the law,” Marin said.

Marin and other critics say the SIU itself should have more power to ensure police comply with laws intended to protect the integrity of SIU probes. And now may be the time for change, thanks to the rewriting of Ontario’s Police Services Act and the ongoing review of the SIU and other police oversight bodies, led by judge Michael Tulloch.

Marin said he wants to see Tulloch make recommendations aimed at giving the watchdog greater powers to hold police accountable when it has reason to believe officers breached their legal obligations.

Specifically, he hopes the review recommends attaching a penalty, under legislation, for failing to comply with regulations governing the SIU, such as a fine or jail term. “You would see immediate compliance,” he said.

Ian Scott, who as director of the SIU from 2008-2013 made frequent requests of police chiefs to report back on officer behaviour, said the SIU director should have the ability to complain to Ontario’s Civilian Police Commission, something the director isn’t allowed to do under existing legislation.

In an interview, Scott said the benefit of complaining to the commission is that it can launch a misconduct case outside of the usual police tribunal, a system many feel isn’t accountable because chiefs pick the adjudicator and prosecutor.

Bullets were found laying on the street (as indicated by the yellow markers placed on street). Tensions over the SIU letters arose again in 2013 when then-SIU director Ian Scott publicly criticized former Toronto police chief Bill Blair for refusing to respond to more than 100 letters containing complaints about officers. photo by fightyourtickets.ca

Tulloch’s much-anticipated report is due at the end of the month. In an email to the Star, a spokesperson for the review said Tulloch is looking at clarifying the SIU’s mandate and “the extent of the police duty to co-operate.”

An SIU spokesperson, Monica Hudon, told the Star Toronto police have “made it clear it will not respond in writing to concerns raised in the SIU director’s reporting letters.” But she said the service has reached out to the SIU in “other forums” to address issues raised.

“Often, this will involve telephone conversations and an exchange of views between senior officials of our respective agencies,” she said, adding that Toronto police have committed to taking remedial action in some cases.

Pugash said in some instances where the SIU has complained about a delay in notification, police needed more medical information before determining if the SIU threshold had been met; the SIU only takes over an investigation if injuries are deemed “serious.”

“In some cases, we disagree with Mr. Loparco’s contentions,” Pugash said. “The fact remains, however, that every issue is investigated, action is taken wherever appropriate, and everything is reported to the police services board.”

Toronto police board vice-chair Chin Lee said the board receives all letters from the SIU director to the chief, alongside the results of the mandatory internal police probes, which must occur within 30 days of the closure of every SIU investigation involving the service. The intention of the internal probes is to determine if policy or training changes are necessary or if disciplinary action should be taken.

“The board reviews these letters and may direct the chief, as necessary, to deal with any issues raised. The board also seeks the relevant information to fulfil its oversight responsibilities when it deems it necessary,” Lee said.

Until recently, the chief’s internal reports were not made public. But as of June 2016, the board began releasing versions of the reports, though some information, such as the names of officers involved, is not public.

Since that time, 17 internal reports have been released in the board’s monthly agendas, dating to cases closed in August 2015 and as recent as July 2016.

However, no internal reports have been released for cases closed between September and December 2015, a period during which the SIU raised concerns about officer conduct in four investigations.

That includes the cases where Martino flagged the issue of officers attempting to download surveillance footage after the January 2015 shooting, and the incident involving a C8 carbine rifle.

The board did not respond by deadline to questions about the four-month gap in internal reports released so far.

One internal report released by the board, however, does show Toronto police professional standards unit investigated an SIU director’s allegations that there was a notification delay and that police wrongly attempted to obtain a statement from an injured man during an SIU probe.

After looking into the complaints, professional standards said the notification delay was caused by a holdup in getting medical information, and that police had obtained permission from the lead SIU investigator to speak with the injured man.

The issue concerning the downloading of surveillance video following a police-involved incident appears to be a sticking point between the SIU and Toronto police.

Last spring, when Ontario’s attorney general released a censored version of the SIU director’s report into the fatal Toronto police shooting of Andrew Loku, it was revealed that Loparco had raised concerns about an officer attempting to review and download surveillance video.

Loparco said the officer’s conduct violated the Ontario regulation stating the SIU is the lead investigative agency.

A civilian watchdog (the “SIU”) can’t expect to get very far if the police won’t co-operate with the SIU. When there is lack of co-operation, the Police Services Act can’t presently impose sanctions on the police and police chiefs. photo by fightyourtickets.ca

Toronto police say the officer was performing their duty to secure the scene. Speaking to the Star last year, Pugash said police disagreed with Loparco.

“In this case, it was, ‘Did the video exist? Was it recording?’ In which case they would need to download it to preserve evidence.”

Pugash also said “several” SIU officials at the scene had no objections.

In his communication with Saunders about a similar incident six months earlier — where officers allegedly attempted to “access and copy” security footage from a police-involved shooting at a pharmacy — acting SIU director Martino said there was no impact on the investigation because the footage didn’t capture the incident and SIU investigators were able to intervene to “prevent the officer from copying the footage.”

Asked if Toronto police responded in writing, as Martino requested, Hudon said she could confirm that concerns raised in Martino’s letter “have been the subject of dialogue” between the SIU and police.

The Star also asked why the SIU does not issue news releases in all investigations, particularly in cases where there is a high public interest. No news release was issued, for instance, in the case involving the C8 rifle incident.

Hudon said the SIU receives notification of hundreds of incidents every year. Given the SIU’s limited resources, it is not feasible for the watchdog to issue a news releases in all of them, she said.

“We have noted this issue in our submissions as part of the review being undertaken by Justice Tulloch. Given our present resources, the SIU is committed to issuing news releases in all death cases, whenever a firearm is used and for major vehicle collisions,” Hudon said.

Wendy Gillis can be reached at [email protected] .

Letters from SIU director to Toronto police chief

“Tragic outcome” narrowly avoided

In a December 2015 letter to Chief Mark Saunders, SIU director Tony Loparco highlights what he calls the “quite troubling” conduct of an officer who helped a colleague arrest a mentally ill person while carrying a C8 rifle — a military grade weapon used for long-range shooting.

The mentally ill person quickly grabbed the gun, refused to let go and “reached for the trigger on a crowded street,” Loparco wrote. “Several” officers were required to remove gun from the person’s grip.

“The incident could have led to a much more tragic outcome in the circumstances,” Loparco wrote.

Four-year delay

In a June 23, 2015 letter, Loparco wrote to Saunders about a serious wrist injury incurred by a member of the public that did not come to the attention of the SIU until almost four years later. Loparco said the passing of time had created an “evidentiary vacuum” and therefore there were no reasonable grounds to proceed with charges against the two officers.

“The failure of the (police) to contact the SIU has effectively denied . . . the broader public the benefit of a thorough investigation into serious allegations of police misconduct,” Loparco wrote.

Investigation ‘compromised’

In an August 25, 2014, letter, Loparco wrote to then-chief Bill Blair about a two-month delay in notifying the SIU about an incident where a Toronto police officer was found to have broke someone’s nose.

Though Loparco found the use of force by the officer was legally justified, he lamented the delay in notification despite “various officers” being aware of the broken nose — a clear serious injury — within hours of the incident.

“A delay of this nature can only degrade the quality of a witness’ recollection of the events in question, and clearly compromised the integrity of the SIU’s investigation,” Loparco wrote.

‘Climate of hostility’

The question of whether police chiefs must directly respond to concerns raised by the SIU director is not a new issue in Ontario.

After former SIU director Ian Scott began requesting responses to concerns raised in his letters to chiefs when he took the reins of the agency in 2008, the Ontario Association of Chiefs of Police’s SIU Committee “strongly urged” chiefs not to respond to director’s letters, saying the SIU had no authority in matters of police conduct.

As tension increased between the SIU and police chiefs, former chief justice Patrick LeSage was tapped by the attorney general in 2011 to review the Police Services Act with an eye to resolving certain issues involving the SIU, and concluded the legislation was clear that chiefs are not obligated to respond.

“The SIU director’s authority does not extend to requiring the chief of police to investigate or report to him and should not be part of the SIU director’s communication with the chief of police,” LeSage wrote.

Instead, issues raised by the SIU are intended to be dealt with in the mandatory internal investigations a police service must conduct after every completed SIU investigation, to determine if training or policy changes need to be made or if disciplinary measures are warranted. The results of that probe must be presented to the board within 30 days of the completion of the SIU investigation.

Tensions over the SIU letters arose again in 2013 when then-SIU director Ian Scott publicly criticized former Toronto police chief Bill Blair for refusing to respond to more than 100 letters containing complaints about officers.

LeSage’s report, Scott said at the time, did not preclude police chiefs from being responsive to concerns that affect police, the SIU and the public. Marin agreed, saying LeSage’s report should not prevent the SIU from identifying issues of concern in its correspondence with chiefs of police.

“While (the SIU director) is unlikely to receive a response given the current climate of hostility, he should not be prevented from politely requesting one,” Marin, then Ontario ombudsman, wrote in Oversight Undermined, a 2011 report on the SIU.

 

 

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