“A person having a complaint against a member of a municipal force or the provincial force shall make the complaint to the appropriate authority within 90 days of the commission of the alleged act complained of, or within 10 days of the alleged act being discovered.”
- In section 34 of the Regulations it says: “No proceedings for an alleged disciplinary fault under the code shall be commenced more than five months after the occurrence of the disciplinary default, or more than three months after the discovery that an alleged disciplinary default has occurred, whichever is the later.”
Recommendation: That for the purpose of consistency the dates being introduced into S.39.1. be the same as those in the regulations.
- The above section places the onus for making the complaint to the appropriate disciplinary authority upon the citizen. Most citizens do not know who the appropriate authority is and will often simply appear at the complaints desk or speak to a shift sergeant. The first person he talks to within the police force, however, does know the appropriate authority, and the onus should be on that person to forward the complaint to the appropriate person. This would make it the duty of the police officer to take some action and not place an unreasonable demand on the citizen.
Recommendation: “A person having a complaint against… may make a complaint to the force involved. If the person receiving the complaint is not the appropriate disciplinary authority he or she shall communicate that complaint to the appropriate authority.”
- S.39.4 “The disciplinary authority receiving a written complaint under subsection (3) shall forthwith cause the complaint to be investigated within a reasonable period of time and…”
The wording here is a bit unclear. The intention is to make some demand upon when the investigation shall begin and to offer a guideline for the completion of that investigation. We have had some concerns about the length of time some investigations take and would like to see something stronger and clearer.
Recommendation: “… shall forthwith cause the complaint to be investigated and that investigation shall be completed within two months unless it can be demonstrated to the B.C. Police Commission that circumstances which the force could not control hindered the investigation.”
- S.39.2 “The disciplinary authority receiving a complaint under subsection (1), which does not allege criminal behaviour, shall informally hear and attempt to resolve the complaint….”
This phrase introduces a substantial change to the Act and one which we think should be resisted. First, it has always been the intention of the Act, that the complaint process is not to be seen as a punitive one but one whose objective is primarily mediative and educative. It is important that this spirit be preserved. This section begins to undermine this by proposing that an initial evaluation will be made of a citizen’s complaint and a decision made to allow it to proceed under the Act or as a criminal investigation. This reduces the opportunity for the complaint to be used to educate both parties and to bring about some mediation.
Second, the introduction of this phrase may serve to seriously limit the use of the Act. The line between a criminal event and a non-criminal one is not always self-evident and is only achieved through some interpretative process. It would be possible to interpret many citizen complaints as having an allegation of some criminal event. This would leave the Police Act to deal with relatively minor issues.
Third, many complaints can be seen to have both criminal and non-criminal acts involved. Would the criminal event override the other aspects of the complaint? Would one be able to use the Police Act to deal with the non-criminal aspects of the complaint?
Four, while this section appears to deny people access to the Police Act if it is deemed that a criminal event occurred, section 38 reads: “…sections 39 to 47 do not preclude the taking or continuing of a) civil or criminal proceedings against a provincial or municipal constable…”
Since the intention of this distinction being drawn may be to reduce of eliminate the possibility of double jeopardy, it should be recalled that Section 10.3 of the Regulations states: “Where a member has been prosecuted in respect of an offence punishable on indictment or on summary conviction and has been acquitted, no disciplinary proceedings shall be taken…..” Further, if the person is convicted, this is a violation of the Disciplinary Code and disciplinary proceedings will be taken. The only question is then what to do in those cases where a criminal investigation has been held and the prosecutor does not accept the charge. Should the citizen have access to the Police Act? The Police Act may still be able to serve a mediative role. Or, while the behaviour may not have been sufficiently serious to be seen as a criminal act, it may still be in violation of the Disciplinary Code, e.g., “uses any unnecessary violence to any prisoner or other person….” It may be useful, then, to still allow citizens access to the provisions of thePolice Act.
Recommendation: In an attempt to rationalize the options following from the initiation of a complaint, we would propose the following:
- A complaint is made.
- An attempt is made to informally resolve the complaint. This allows the mediative and educative role of the Act to be used.
- The citizen may be satisfied with this informal resolution. This allows the mediative and educative role of the Act to be used.
- If the citizen is not satisfied, he or she may proceed to a formal complaint. We trust that an adequate investigation of the matter would be undertaken at this point and would therefore recommend that the citizen not be allowed to ask for a criminal investigation at the end of the formal investigation. If the citizen is not satisfied, he or she may ask for a public inquiry.
- After the informal stage has failed, the citizen may ask for a criminal investigation to be carried out. If the constable does go to court on a charge, that would terminate the provisions of the Police Act. If a charge is not recommended or not accepted by the prosecutor, the citizen would still have access to the provisions of the Police Act.
- After the informal attempt to resolve the complaint, regardless of the intentions of the citizen, the force itself may decide to begin a criminal investigation.
More directly, we are recommending that the distinction between criminal and non-criminal acts not to be built into the Police Act. Further, that all complaints go through at least the first stage of the existing provisions to ensure the opportunity for mediation and education. Finally, that in order to resolve the often difficult entanglement of a criminal investigation and the provisions of the Police Act, that some detailed listing of the options such as we have suggested be entertained.
- S.39.7 through 10 These subsections all deal with a new status created by the Act, an “unreasonable complainant”.
“If upon receiving a complaint under subsection (1) the disciplinary authority is of the opinion that the complaint is unreasonable, and that the complainant has, in the past, made a complaint without there having been any reasonable grounds therefore, the disciplinary authority may apply to a Judge of the Provincial Court for an order declaring such person an unreasonable complainant, and an order that the remedies provided for in ss. 39 and 40 of the Act be not available to such person without leave of the court.”
We are sympathetic to the fact that some citizens abuse the complaint process and take up considerable time of several agencies in the province. We do not feel, however, that the provision introduced here will necessarily solve the problem, nor do we believe the clauses can be accepted as they stand. Before taking any action on the matter of chronic complainers we would like to see some objective evidence indicating how much time they are taking up in departments throughout the province. Further, we would like to see some estimate of the time and money which might be saved by this new provision. The clause introduced here may simply move the abuse from one institution to another. Chronic complainers are not going to be deterred by another step in the process. If it can be demonstrated that there is a real need for some restriction and that the method introduced here is the most effective, we would still be unhappy with some of the provisions.
As it stands, a person only has to have initiated two complaints in his life which have been deemed to be unreasonable. This hardly seem to be an indication of a chronic complainer. Further, it is not clear whether this process could be initiated in the middle of a complaint. Since one of the objectives of thePolice Act is to demonstrate an openness to citizen input, it is important to protect this aspect of the Act. The introduction of restrictions should be specified as as clearly as possible to remove abuse and to demonstrate a genuine interest in trying to resolve complaints. Finally, there is no provision in the Act for removing one’s status as an “unreasonable complainant”. Is it to stay with one for life?
- That the grounds for initiating this new process be made more strict. There should have been a series of complaints which are deemed to be unreasonable within a given period of time—for example, three or four in one year.
- That it be made clear that this process is not to be initiated in the middle of a complaint.
- That the separate steps in the complaint process not be considered as individual complaints; the complaints must be new complaints.
- That a time limit on the duration of this new status be introduced—for example, one’s status as an unreasonable complainant shall only extend for a period of two years.
- It should be made clear that the complainant has the right to attend and be represented before the court hearing and will be given the opportunity to present his side of the case.
Further changes we recommend
- The apparent confusion between sections 40 and 55 of the Act. Thisinvolves the time limit on the right to appeal a formal investigation and request an inquiry.
S.40 “…not more than 30 days after he receives a notice….”
S.55 “…where a notice under the act is sent, given, s submitted or served by double registered mail, the addressee shall be deemed to have been served with the notice on the fifth day after the mailing….”
This apparent disagreement was the source of confusion in a recent case where the citizen thought he still had time to make a request for an inquiry but the legal department for the police force did not. It would be a simple matter to clear up this confusion, for example, by inserting “…whichever comes first….”
Recommendation: That the Police Commission amend the Act in a way that will eliminate this apparent disagreement.
- Charges of public mischief arising from a complaint
We have had quite a few examples of this and while we have raised our concern with the Police Commission, we feel that some explicit statement should be included in the Act. Since information is given at the informal stage “without prejudice”, it would seem appropriate to say that at this stage no mention shall be made of the possibility of a public mischief charge being laid.
Recommendation: That a clause be added to the regulations, 52.2, clearly stating that at the informal stage no mention shall be made of public mischief charges being considered.