Menu

Brief to the Oppal Commission on Municipal Policing in B.C.

Posted on

The B.C. Civil Liberties Association believes that it is important from the start to be just as clear about what municipal police forces in B.C. are doing right as it is to be clear about where problem areas lie. In our attempt to provide solutions in the latter areas, we do not want to disturb or undermine policing systems which are working well.

Municipal police forces in B.C. are doing a number of things right. First, as far as we can tell, there is no a serious problem with corruption. Our police officers are doing the difficult jobs we have set for them with honesty and integrity. We see no need for any massive shake up in municipal police departments, or for removing the disciplinary system completely from the hands of senior police officers.

Second, we do not see in B.C. the pattern of unnecessary or uncontrolled violence against citizens which has become evident in some large American cities. We do perceive a problem in B.C. with the level of force that the policies under which the police operate appear to allow, but this is more a matter of an adjustment to those policies, so that they align more closely with the level of force that citizens in B.C. find tolerable.

Third, we find no evidence that police forces in B.C. are totally insulated from the community, acting solely for their own narrowly circumscribed interests, or lacking in comprehension of their essential connection to the communities in which they operate, or of their role in a democratic society. On the contrary, it has been the BCCLA’s experience that municipal police forces are keenly aware of their connectedness to the community, and of the fact that they cannot adequately do their jobs without the support of a large proportion of the members of the community. While there is a problem in this area, again it appears to be a problem with the policies and systems under which police operate, rather than one of perception or resolve.

In short, the BCCLA sees no necessity for any massive shake up of police departments, or any massive overhauling of the Police Act. Rather, we see a need for changes to some of the laws and policies which regulate the police response to complaints from citizens, and which govern their day to day interaction with the communities in which they operate. In particular, there needs to be a refocusing of the commitments and priorities which since 1975 have characterized the police response to community issues and complaints.

In this brief the BCCLA will focus on the citizens complaint process, both because we have extensive experience with it, and because we believe that the response by police to complaints from citizens is the single most important factor in the health of the police/citizen relationship. When this relationship is working well, it has a positive effect on a number of other sensitive areas, and when it is not working well, the general health of the police/citizen relationship suffers. Towards the end of this brief, the BCCLA will speak to the issues of the use of force.

This Commission of Inquiry came about largely as the result of several highly publicized incidents involving the use of force. These incidents, and the police response to them, raised the concern of the public and our elected representatives about the state of policing in B.C.

To the extent that these incidents are focused on in this Inquiry, the BCCLA suggests that they be viewed not from the narrow perspective of whether too much force was or was not used, or whether the disciplinary decisions were correct, but rather from the broader perspective of what we can learn from them. The BCCLA believes that there are valuable lessons to learn, which apply equally to the hundreds of less serious or less publicized incidents which every year give rise to citizens’ complaints.

The videotaped incident which occurred in February, 1992 is a case in point. The complaints of the two citizens involved, Zhang Feng Hua and Wong Wai Shuen, were, among other things, that too much force was used in arresting them. The response of the police, which is determined by the Police Act and the Police (Discipline) Regulations, was to assess whether any of the individual police members involved should be charged for a breach of the Discipline Code.

The incident was thoroughly investigated, the investigation file submitted to Crown Counsel. Crown Counsel determined that since there was not a strong likelihood of conviction under the Criminal Code, no charges should be laid. That decision was based on the judgment that there was a reasonable doubt that the officers involved had violated the police policies which determine the level of force appropriate for such circumstances. Since prosecuting the officers under the Police Actrequires the same (criminal) standard of proof, the police rejected the complaints of Mr. Zhang and Mr. Wong.

The BCCLA does not dispute Crown Counsel’s decision, and given the similarity of the two processes, the BCCLA does not dispute the Disciplinary Officer’s decision. Yet it is clear that something went very badly wrong with the response of the police to this complaint.

The questions raised by the complaint were: “Was that much force really necessary?” and “Was this good policing?”, and neither of these questions was addressed.

Rather, the police were constrained by the Act to take a legalistic and defensive posture, since in their eyes the only way to respond positively to the complaint involved disciplining police members, and perhaps ruining their careers.

Nowhere in the response by the police was to be found an assessment, or even consideration of an assessment, of the policy under which the police officers acted. Nor was the question ever raised as to whether further training, counselling or supervision of the officers might be appropriate. Whether because of the threat of civil liability, or the necessity of potentially sacrificing an officer’s career, the police did not seem themselves as able to respond in a positive way to the complainants.

It may be that the police sincerely believed that the force used against Mr. Zhang and Mr. Wong was entirely appropriate, and that there was no need to consider the policy which allowed the force, or to consider further training or supervision of the officers. If so, we have a problem, since the vast majority of citizens who expressed themselves on this issue believed that too much force was used.

On the other hand, it may be that the police tended to agree with the vast majority of citizens, but felt themselves constrained to reject the complaint because of their assessment of the probability of obtaining a conviction in a Service Court hearing. If so, we have another sort of problem, one which is system-oriented rather than attitude-oriented.

One or the other of these sorts of problems, and sometimes a combination of the two, dog a large number of the complaints in which the BCCLA has been involved over the past 20 years. It does not seem to matter whether the complaint is minor in nature (e.g., rude behaviour) or more serious, such as that cited above—the majority of complainants come away from using the citizen complaints process more frustrated and less supportive of the police than when they started. For more than a decade, the BCCLA has been trying to get this problem addressed, with virtually no success.

We are hopeful that the ordering of this Commission of Inquiry marks the beginning of a fresh look on the part of government at the systems and policies which give rise both to the ways in which municipal police forces are doing things right, as well as the problems that we will set out in this brief.

A. Changes to the citizen complaint process

1. Major problems with the present process

There are three major problem areas with the present process:

1.1 The defensive and legalistic response of the police to citizen complaints. Under the present process, a complaint is defined as an allegation concerning the action(s) of a police officer which, if proven, would constitute a disciplinary offence under the Discipline Code. Thus, the police view a complaint from the public as a quasi-criminal allegation that an offence has been committed, and that the relevant questions are: “Is there sufficient evidence that an offence has been committed?” and, if so, “What should the punishment be?”

The citizen, on the other hand, has typically felt aggrieved, angered or offended by the actions of a police officer, and has brought these actions to the attention of the police, usually with the intention of having the officer brought to task for their actions, of attempting to ensure that this will not happen to other citizens, and of having the officer understand the effect that their actions had on the citizen. The citizen is not normally “out for blood” or to ruin an officer’s career. Rather, the citizen typically wants an explanation, an acknowledgement of the suffering the police action caused, and some assurance that this kind of behaviour will not continue or reoccur.

The problem is that the internal disciplinary process operates in such a way that citizens are only rarely going to get what they want. They are confronted by a process in which cannot offer them a simple apology without potentially putting an officer’s career on the line. Where an officer denies allegations, or offers a different version of events, the complaint is almost always judged to be unfounded, since it would almost never be provable against the criminal standard in an internal Service Court hearing. Under the present Police Act, the process itself, and the legalistic, defensive posture it triggers from the police, work against the types of response which would satisfy citizens who have brought forward complaints, and thus improve police-community relations.

1.2 The lack of a credible and effective oversight mechanism. The great majority of complaints are dealt with by the police in secret. Although under the present Act the Complaints Commissioner is charged with monitoring complaints to ensure they are dealt with according to the Act, in fact little if any monitoring goes on. The Complaints Commissioner receives a copy of each complaint, and a copy of the “section 59 letter”, which gives the formal response of the police to the complaint. Yet unless the Commissioner has some special reason for requesting the investigation file or interviewing the complainant (such as a complaint about the process from the complainant, or a highly publicized case), that is the extent of the Commissioner’s involvement. There is no other oversight of the handling of citizens’ complaints: reviews by the Police Board and the B.C. Police Commission occur only after the fact, and upon appeal by those rare complainants who have not been so frustrated by the system that they have given up hope of receiving an adequate response.

1.3 The lack of an impartial appeals mechanism which has the confidence of both the police and the community. Complainants have the right to appeal the disciplinary decision of a Chief Constable to a panel of the municipal Police Board. If they are not satisfied with the decision of the panel, they can request leave to appeal to the B.C. Police Commission. The BCCLA views both these, for different reasons, as inappropriate bodies for hearing appeals by complainants.

Police Boards are the employers of the municipal police departments in B.C. They appoint the Chief Constables, set the funding levels, and are responsible for the quality and level of service provided by the police department. The municipal council has an important representation on Police Boards: the mayor is the chair of the Board, and one other member is appointed by the municipal council.

In the BCCLA’s view, panels of the Police Board are in conflict of interest in hearing appeals from a Chief Constable’s disciplinary decision, in two ways.

First, the municipality may incur civil liability if the panel overturns a Chief Constable’s decision that a police member was not guilty of an alleged disciplinary offence.

Second, in overturning or altering a Chief Constable’s disciplinary decision, the panel would be expressing lack of confidence in the decision of the very person it had appointed to head the police force.

Together, these factors undercut the panel’s ability to render, and to be seen to render, a fair and impartial decision.

The B.C. Police Commission has traditionally been closely involved with municipal policing in B.C., and is often viewed as part of the police establishment in the province. The Commission has constant interaction with municipal forces in carrying out its responsibilities under s. 42 of the Police Act. Though the members of the Commission are not themselves ex-police officers, it is often the case that staff members are seconded from police forces.

In recent years the Commission has taken pains to become, or to be seen to become, less intimately connected with police forces, and to play a more neutral role. The Commission is to be commended for this. However, in the BCCLA’s view, the Commission is still regarded by many of those citizens who are aware of it as part of the police establishment, and so would not consistently be viewed as impartial in hearing appeals of internal disciplinary decisions. That perception is sufficient for the BCCLA’s judgment that the Commission is an inappropriate body to hear such appeals.

In what follows, the BCCLA sets out its recommendations for addressing these major problems with the present citizen complaints process.

2. The definition of a complaint

A complaint is defined in the Act as an allegation made in writing which, if proven, would constitute a disciplinary default.

The BCCLA recommends that this definition be broadened to include any allegation of improper behaviour on the part of a police member, and include policy and service complaints.

The fact that internal disciplinary proceedings could not arise from a complaint should not be a reason for the police to reject a complaint. If the complaint concerns a policy or service matter, it should be forwarded to the appropriate body for investigation and a copy sent to the Complaints Commissioner, the Commission and the Police Board. It is just as important to have an internal mechanism for responding adequately to policy and service complaints as it is for alleged Discipline Code infractions. Where a complaint includes discipline and non-discipline matters, the non-discipline matters should be severed and dealt with separately.

The point is that the police view complaints solely as allegations of criminal or quasi-criminal behaviour on the part of individual officers, and so naturally react defensively, instead of seeing them as opportunities for feedback on a wide variety of police-community issues, including training policies, levels of service, deployment of resources, and so on. If the police are serious about the “community policing” model, they need to change their attitude towards complaints, and view these as opportunities for a response to community concerns. Since their attitude will not change by itself, requirements which address such concerns must be built into the Act.

3. The citizen complaint form (Form 9)

This form should be redrafted. At present it contains only a small space for setting out which action(s) the complainant wants investigated and no space for setting out what the complainant wants to have happen as a result of their complaint.

Not only should space be provided for these, but the person receiving the complaint should be charged with ensuring that the complainant is asked these questions, and their full answers recorded. The BCCLA believes that even this small change can have a disproportionately large positive effect on the working of the complaints process.

The Form 9 also contains a space for noting whether an informal resolution was reached, but no space for noting the nature of the resolution. For example: Did the complainant agree that the member’s actions were proper? Was the complainant offered an apology? Was the complainant assured that the member would be spoken to with regard to future conduct, or that supervision or further training would be recommended? The nature of the resolution should be spelled out before the complainant is asked to sign agreement to it.

4. The range of available responses

At present, under the Police (Discipline) Code, the only non-discipline response that the police can make is to advise the officer with regard to future conduct. The balance of the responses (verbal or written reprimand, suspension without pay for one to five days; demotion in rank) are regarded as serious penalties which undoubtedly would affect an officer’s career. They are usually used only for internal disciplinary matters, and only rarely as a response to a citizen’s complaint.

One major problem with this response system is the lack of a range of responses available to the police other than punishment-oriented Discipline Code charges. The RCMP Act contains a wider range of options, including recommendations for further training, for supervision, and for counselling.

In the BCCLA’s experience, even though many complainants are angry at and affronted by the perceived abuse of authority and initially think in terms of having the officer disciplined, after they calm down their main concern is to ensure that this will not happen to other citizens in the future. It is crucial where the officer admits that they could have handled the situation better, or where the evidence is clear that they could have, that the police be able to respond in a way that addresses complainants’ desires. Further training, supervision or counselling are among the non-disciplinary responses that the police need to be able to make in order to address a complainant’s desire to ensure that a like situation will not so readily occur.

Another major problem is the lack of a forum for genuinely responding to complainants’ desires to have the officer and the department understand and respond to the effect which the officer’s action has had on them. There is provision for an informal resolution of complaints in the Act, but this opportunity is rarely taken advantage of in a way that has any realistic chance of informally resolving the complaint.

Complainants often want to sit down with the officer, tell their side of the story, and hear the officer’s side, in a setting which they do not find formal or intimidating. If an apology is in order, they want to hear it from the officer involved, not the investigating officer. And if an explanation of the officer’s situation at the time and the reasons why they acted as they did is in order, complainants want that too to come from the officer. The BCCLA believes that there is much more scope for a genuine resolution of many complaints than the police are prepared to acknowledge.

Additionally, the presence of the criminal standard of proof may operate to discourage police officers from participating in attempts at informal resolution. If they believe it is unlikely that they will be convicted of a disciplinary charge, there is little incentive for them to try to explain their actions and to forestall a formal investigation. With a lower standard of proof, that disincentive would be removed.

What is called for is the application of conflict resolution strategies, with or without a mediator, in a setting which is not intimidating to the complainant, and in which the officer’s statements would not prejudice a disciplinary or criminal proceeding should the informal resolution attempt fail. That may mean that the investigating officer not be present.

5. The standard of proof

The present criminal standard of proof is a major factor in producing the defensive and legalistic posture which renders the present citizen complaints system both viewed as unfair to complainants and in fact unfair to complainants. In order for complainants’ allegations of misconduct to be judged by the police to be founded, not only must the investigating officer believe that a conviction in a disciplinary hearing could be obtained where the allegations must be proven beyond a reasonable doubt, such a conviction must in fact be obtained if the officer denies the charge.

The BCCLA’s reasons for recommending the lowering of this standard to the civil standard (“on the balance of probabilities”) are set out below.

5.1 We know of no other professional or labour disciplinary process in which the criminal standard of proof is used to test allegations of misconduct. There is a very good reason for this. The need to protect employees from wrongful allegations of misconduct must be balanced against the need to respond adequately to complaints from the public. This response is adequate when the complaints have been, and have been seen to be, fully and impartially investigated, and the evidence for them weighed against the evidence that no misconduct occurred. The use of the civil standard of proof simply makes good sense: it balances these competing interests and is most conducive to a fair and impartial outcome. If the police are to be treated as a special case, then compelling reasons need to be supplied.

5.2 The argument that the standard of proof in disciplinary hearings should be the criminal standard because municipal police officers may be subject to criminal charges, is not convincing. First, any employee may be subject to criminal charges as the result of a disciplinary process. Second, the disciplinary process is not itself a criminal process. It is a procedure for determining when a member of a municipal police force may be brought to task for misconduct. Almost all employer/employee relationships contain such procedures, either formally set out, or practically applied. This argument does not provide a reason for treating police officers as a special case.

5.3 Police officers have one of the strongest appeal processes of any employee group. They are represented by the local police union or association, which provides legal counsel and investigative support. Adverse disciplinary decisions can be appealed. There is presently adequate protection for police officers from wrongful allegations of misconduct, and we would expect that an amendedPolice Act would retain this level of protection.

5.4 There is a special reason why using the criminal standard of proof in police disciplinary proceedings is inappropriate. The police play a unique role in our communities. We as citizens in a democracy have invested in our police extraordinary powers over ourselves. As a people who cherish our freedoms and our autonomy, we need to be assured that these extraordinary powers are balanced by extraordinary caution in their use. The police need to be more, not less, sensitive and responsive to allegations of misconduct than other employees.

5.5 Not only must these powers be exercised with extreme caution, they must be seen to be exercised with extreme caution. If the police are to do their job properly, they must have the cooperation of the citizenry. To have that cooperation, it is of paramount importance that when allegations of abuse of their powers are made, the police respond, and be seen to respond, with an impartial and sensitive investigation.

If there is any one factor in the police disciplinary process which tends to undercut such a sensitive and impartial response, it is the use of the criminal standard of proof. Its use promotes in the attitudes of both disciplinary officers and the officers complained against a legalistic, defensive posture.

It has been altogether too often the experience of the BCCLA that when citizens complain of police misconduct, the mere fact that the officer denies the complainant’s account of the incident or that the corroborating evidence is incomplete (see below) is sufficient to raise a reasonable doubt, and so the allegations are dismissed. This sort of legalistic and defensive response is particularly unsatisfying to complainants, not because the allegations have been dismissed, but rather because the process appears to them to be biased towards the officers, and the response inadequate and insensitive. What is desperately needed is a disciplinary process through which complainants feel satisfied that their allegations have had a fair hearing. The BCCLA is convinced that only by using the civil standard of proof can such a process be achieved.

5.6 The circumstances surrounding incidents about which citizens make complaints of police misconduct are such that evidence sufficient for proof of misconduct beyond a reasonable doubt is extremely difficult to gather, even when the allegations are well-founded.

(i) Angry, upset complainants who may be intimidated by the circumstances (and almost all complainants are angry, upset or intimidated) have difficulty expressing themselves clearly in correspondence with officialdom. The result is often overstated or confusing claims which can be rejected easily by disciplinary officers when applying the criminal standard of proof.

(ii) There is often little corroborating evidence of the alleged misconduct. In the heat of the moment few people think to get the names and addresses of witnesses. Even when they do, witnesses are often difficult to track down, afraid to come forward, or just do not want to get involved. The lack of corroborating evidence is almost always sufficient to raise a reasonable doubt about the truth of the allegation.

(iii) Investigations can take quite some time, especially if the complainant pursues the matter past the informal resolution stage. Memories dim and the evidence is more likely to contain gaps and inconsistencies. Even at the best of times the evidence of several witnesses often contains inconsistencies. These too can be sufficient to raise a reasonable doubt.

(iv) When, as it often does, the matter comes down to the officer’s word against the complainant’s, this in itself is sufficient to raise a reasonable doubt about the truth of the complainant’s allegations.

5.7 It is true that the civil standard is a less stringent standard, and so true that the possibility of wrongful disciplinary actions being taken increases slightly. We understand the reluctance of those in the police community to assent to the use of the civil standard for this reason. No one wants police officers to be wrongfully disciplined. But we must remind ourselves that:

(i) an increase in percentage of officers disciplined, should there result in one, does notnecessarily mean that any of these are wrongfully disciplined. It is in fact more likely that the only consequence would be that more officers who deserved to be disciplined are disciplined;

(ii) on the assumption that the use of the civil standard in disciplinary hearings would yield results comparable to those in a civil court, the disciplinary system will be seen by the public to be functioning optimally. The alternative, where officers exonerated by internal investigations on the criminal standard have judgments against them in the civil courts, makes the public very suspicious of the whole system of police investigating themselves, and brings that system into disrepute;

(iii) if the civil standard were used, it is likely that the more dire the disciplinary consequences for the officer involved, the more stringent would be the proof required. In this way, the civil standard is a floating one. In cases where dismissal would result from an adverse finding, case law in relation to other disciplinary bodies indicates that the standard of proof would approach the criminal standard.

(iv) allowing any room for judgment may be seen by police officers as a threat: it gives senior officers room to bring charges based on personal or political agendas. The BCCLA does not discount this fear, but rather points out that the avenues of appeal and the resources available (such as the various police unions) are sufficient to protect officers in all but the most unusual cases.

In the end, there is no perfect solution to the problem. This should not be surprising, as competing interests are at stake. What we are arguing for is simply a fair balance between these interests. We believe that citizens have a right to have their complaints dealt with equitably. To place the onus on the citizen or on the investigating officer of proof beyond a reasonable doubt is not to treat citizen complaints equitably. Their claims of misconduct should be on the same footing as the officers’ denial, and that means that the evidence on each side need to be weighed—that is, the civil standard of proof applied.

6. Internal discipline and criminal prosecutions

Section 10(3) of the Police (Discipline) Regulations prohibits the taking of disciplinary steps when a member has been charged with an indictable or summary conviction offence with regard to the same facts or circumstances, and acquitted. As well, in practice, the police rarely take disciplinary action when the investigation file has been sent to Crown Counsel, and Crown Counsel has declined to lay charges. If the standard of proof in disciplinary matters is the criminal standard, there is some justification for this. However, if as the BCCLA has argued, the standard of proof in internal disciplinary proceedings becomes the civil standard, this purported justification loses its rationale.

The BCCLA recommends that 2.10(3) be deleted.

7. The police dhould continue to investigate citizens’ complaints in the first instance

Whenever citizens’ complaints are high profile and few or no disciplinary steps are taken, the perception of the public is that the police are covering up, sticking up for their fellow officers, and are incapable of taking an impartial stance to allegations of wrongdoing. Calls are heard for the investigation of such complaints to be taken out of the hands of the police.

Although the BCCLA shares this concern, we do not think that taking the investigation of citizens’ complaints out of the hands of the department involved is the answer. Our reasons are as follows:

7.1 Our experience has been that internal investigations are, for the most part, thorough, though often frustratingly slow. Generally speaking, investigating officers are conscientious in interviewing the principals, locating witnesses, and securing relevant documentation. This experience has been mostly with the Vancouver Police Department. We have had limited experience with other municipal departments. What experience we have had has supported our view that thoroughness of investigations is not a major problem.

7.2 Although there is a potential for the investigation to be less than impartial (e.g., sympathetic questioning of police witnesses, aggressive questioning of complainants and their witnesses), our experience has not been that this has been widespread, or has had a serious effect on the quality of the investigation files.

7.3 It is likely that police witnesses give statements couched in language which is easily understood by other police officers (including the disciplinary authority), and in general tend to view the actions of fellow officers in a sympathetic light. However, this problem is not likely to be addressed by having outside investigators conduct the interviews, especially if the outside investigators have police experience.

7.4 If outside investigators are used who do not have police experience, or who are viewed as unsympathetic, police witnesses may not cooperate readily and fully. This would have a negative effect on the quality of the investigation, and so on the handling of a citizen’s complaint.

7.5 Once the investigation file is complete, the investigating officer makes a recommendation to the Chief Constable regarding whether a disciplinary infraction has occurred and is provable against the criminal standard of proof, and a recommendation for a maximum penalty. Even without such a high standard of proof, there is a potential for investigating officers to err on the side of fellow officers in making such recommendations, and this should not be discounted. In fact it is the single strongest argument in favour of outside investigators. However, in the BCCLA’s experience, the high standard of proof and the narrow range of disciplinary responses available to investigating officers are at least as important as the above mentioned partiality in determining the investigating officer’s recommendations. If these latter can be changed, the present process deserves a chance at producing fair and sensitive responses to citizens’ complaints, so long as there is credible and effective oversight of the process.

7.6 Finally, the BCCLA does not judge that there is sufficient reason for viewing the present process as so fundamentally compromised that the investigation of complaints, the recommendations for penalties and other non-penalty responses, and the initial disciplinary decisions must be taken out of the hands of Chief Constables and their delegates. Like it or not, police departments are structured along para-military lines where authority emanates from the Chief and where obedience to command is crucial. This chain of command, and the Chief’s authority, would in our view be seriously undermined if the enforcement of discipline were taken out of the hands of the Chiefs and their delegates. This is too high a price to pay where, if other changes are made to the citizens’ complaints process, the process may yet be made to work.

8. Intimidation, farassment, or retaliation against a complainant

Although instances of these brought to our attention are rare, they do occur. Perhaps even more important is the fear of complainants and other witnesses that if they bring a complaint or come forward to give a statement, they will suffer harassment or retaliation. These concerns are especially relevant where the complainant and/or witnesses might be otherwise without power to confront them, such as those suspected of being involved in criminal activities, members of poorer communities, and prostitutes. The BCCLA has heard over and over again from such persons that they will not bring forward a complaint, or agree to give a statement in support of a complaint, for fear of the effects this will have on their lives.

It is not clear to the BCCLA how this problem is to be addressed. Adding a Disciplinary Code offence might help, but would be useless without the will to enforce it. What is required is a “zero tolerance” attitude on the part of senior officers towards such conduct, and the confidence of the affected persons and communities that the “zero tolerance” attitude will be enforced. Perhaps only a few high profile prosecutions for such behaviour, and public commitments by senior police officers, will drive the point home.

9. Section 59: Letters and the right to a public inquiry

Where an informal resolution is unsuccessful, or not attempted, the police complete the internal investigation, and under s.59 of the Act must send the complainant a letter setting out a summary of the investigation and the results of the investigation, any disciplinary action intended to be taken, and the complainant’s right to a public inquiry. With rare exceptions (e.g., where there has been public scrutiny), these letters contain little more than a statement than an investigation was conducted, and the disciplinary decision—almost always simply that the complaint is unfounded and no disciplinary action was taken.

The BCCLA suspects that these letters are almost universally terse and unenlightening in order to discourage (or at least not to encourage) complainants from proceeding with a public inquiry. The BCCLA understands this concern, since a public inquiry is a very expensive and time consuming affair, and almost certain to result in bad publicity for the police even where the complaint is without merit. The media and the public usually view the complainant’s account as on balance truthful, and treat the police account or explanation with scepticism.

However, the BCCLA regards the terseness of s.59 letters as unacceptable. The Act clearly intends that a full account of the investigation be given to the complainant, and there is good reason for this: complainants, and the public, must be able to assess the thoroughness of the investigation, the explanation or account of the incident given by the witnesses, the evidence that the police relied on in reaching their conclusion, and the conclusion drawn from that evidence.

The BCCLA, and various B.C. Police Commission officials, have tried for many years to persuade the police to give a more full account of these matters in s.59 letters, but to no avail. The Act appears to be satisfactory, but the Regulations should specify that letters sent pursuant to s.59 contain:

  1. a brief but full account of the complainant’s allegations;
  2. a brief summary of each of the witnesses’ statements (if any);
  3. a brief description of any documentation or physical evidence relied upon;
  4. a specific response to each of the allegations, showing how it was arrived at from the evidence, and
  5. any disciplinary or other action that is intended to be taken.
  6. The BCCLA also recommends that complainants not have a right to a public inquiry. This will sound surprising, to say the least, coming from a civil liberties group, but we believe it is warranted. As mentioned above, public inquiries almost always consume large amount of valuable police time and other resources, public funds, and the funds of police unions. As things stand, a disgruntled complainant can haul the police into a public inquiry on even the most minor of complaints. The BCCLA views the existence of the present right to a public inquiry necessary only because of our lack of confidence in the process to make such decisions in the public interest. Below, the BCCLA outlines an alternative in which it believes the police, complainants and the public can have confidence.

10. The authority and role of the Complaints Commissioner

The BCCLA recommends that the Complaints Commissioner be given both an expanded role in the citizen complaints process, and a source of authority which more clearly sets them out as acting in the public interest.

Under the present Police Act, the Complaints Commissioner is a member of the B.C. Police Commission, and like other members is appointed by the Lieutenant Governor in Council. Over and above their duties as a member of the Commission, the Complaints Commissioner’s duties are:

  • to receive complaints and forward these to the disciplinary authority
  • to maintain a record of all complaints, and their disposition
  • to assist complainants in using the complaints process
  • to monitor complaints, and act in the public interest to ensure that complaints are handled in the manner specified by the Act
  • to inspect annually, or as required, the records operations and systems of administration for the handling of complaints, and
  • to publicize the functions and duties of the Complaints Commissioner.

Presently, the Complaints Commissioner has the powers to inspect any files and other material, to interview the complainant, the officer complained against and the Chief Constable, and where the Complaints Commissioner believes an investigation is inadequate, to request that the disciplinary authority reinvestigate the complaint.

Recommendations

The BCCLA recommends an expanded role for the Complaints Commissioner. In addition to the duties and powers set out above, the Complaints Commissioner should have the following duties and powers:

(a) Where under section 58 a disciplinary officer has refused to investigate or further investigate a complaint because it is trivial, vexatious, or not made in good faith, the complainant must now appeal this decision to the Police Board. The BCCLA believes that Police Boards should not hear such appeals, for the same reason that we believe they should not hear appeals from a disciplinary officer’s decision under section 59. These reasons are set out above). The BCCLA recommends that such appeals be made to the Complaints Commissioner, whose decision is final and binding.

(b) Where he receives policy or service complaints, the Complaints Commissioner shall forward these for review by the appropriate body.

(c) The Complaints Commissioner be advised when informal resolutions are going to be attempted. The Complaints Commissioner is then responsible for contacting the complainant and the officer complained against and advising them regarding the informal resolution process, and upon the request of either, making available a mediator.

(d) Where no informal resolution attempt is made or, if made, is unsuccessful, at the completion of the investigation a copy of the entire investigation file be sent to the Complaints Commissioner, who is responsible for reviewing it, and advising the Chief Constable as to the adequacy of both the investigation and any disciplinary or non-disciplinary action intended to be taken.

Except for high profile complaints, the complaints process operates for the most part in secret. If the police are to investigate themselves in the first instance, there must be an adequate oversight or monitoring mechanism whereby someone acting in the public interest has the responsibility to review the handling of each complaint, and to order further investigation where the complaint has not been adequately investigated. This must be done before the section 59 letter is sent to the complainant, so as to give the internal investigation process the best chance adequately to address the complaint. This should not be an unduly onerous responsibility. In 1990–91 there were 277 complaints, of which 48 were not proceeded with and 94 resolved informally.

(e) Where the complainant or the officer complained against is dissatisfied with the disciplinary decision of the Chief Constable, they may request that this decision be reviewed by the Complaints Commissioner. In response to such a request, the Complaints Commissioner shall review the decision, and either take no action, order that mediation take place, or order that a public inquiry take place under s.60 of the Act. Even without a request from the complainant or the officer complained against, the Complaints Commissioner can order on his own that a public inquiry take place.

(f) The Complaints Commissioner must submit an Annual Report to the Legislature. The Complaints Commissioner should have the authority to make public comment on the way the complaints process is working, though not on the substance of individual complaints, and to produce public reports on any matters brought to his attention.

(g) The Complaints Commissioner should be an officer of the Legislature, appointed in the same manner and for the same term as the Ombudsman and the Information and Privacy Commissioner. The Complaints Commissioner’s authority and physical office should be severed from the B.C. Police Commission.

The rationale for taking the power to rule on trivial and vexatious complaints and the power to hold public hearings out of the hands of the Police Boards, for taking the power to rule on subsequent appeals out of the hands of the B.C. Police Commission, and the right to a public inquiry out of the hands of the complainant and the constable complained against, is that these decisions must be made in the public interest. The BCCLA believes that Police Boards and the Commission are, or are perceived to be, too closely allied to other interests, and complainants and officers complained against too clearly acting in their own interests, to act in the public interest in deciding whether a complaint should be rejected or whether a public hearing should take place.

It may seem improper that the Complaints Commissioner, who will have already reviewed the investigation file, and who may have been involved in an informal resolution attempt, have the authority to decide whether a public hearing takes place. The BCCLA argues that, so long as the Complaints Commissioner is not conducting the public hearing, their prior experience with the complaint is an asset in making such a decision in the public interest.

A public hearing is an expensive and potentially damaging step to take. The person making the decision to hold one must be satisfied that the response of the police to that point is clearly inadequate, that the complaint is serious enough to warrant such a step, and that further mediation is unlikely to be successful. In the BCCLA’s view, the Complaints Commissioner will be in the best position to make such a decision in the public interest.

11. Internal disciplinary hearings

The question arises whether, when an internal disciplinary hearing does not uphold the Chief Constables’s disciplinary decision on a matter arising from a complaint, the Complaints Commissioner can still order a public hearing, either on his own or at the request of the complainant. A similar question arises where the matter did not arise from a citizen’s complaint, but where the public interest is involved in the department’s handling of the matter (say, a man was badly injured in police custody but no complaint was lodged).

The BCCLA is not sure what to recommend in such circumstances. Partly this will depend on the confidence we have as citizens in the internal hearing process, which is itself the subject of submissions to the Commission of Inquiry, and partly it will depend upon the proper scope for the Complaints Commissioner in the oversight of policing. We are loathe to recommend that hearing processes be duplicated or multiplied, yet we are concerned that the police can too easily deal with such important public interest matters away from public scrutiny.

When the matter arises from a complaint, we are inclined to consider that the complaint has not been dealt with until any internal disciplinary hearing is held, and where the disciplinary decision is overturned, the Complaints Commissioner should have jurisdiction.

Where the matter does not arise from a complaint, we are inclined to let either political pressure or the B.C. Police Commission (which has the power to conduct an inquiry under s.45 and a special investigation under s.46) handle the matter. It is one thing to say that the Complaints Commissioner acts in the public interest, but another to say that whenever the public interest is involved, the Complaints Commissioner must be empowered to act.

12. Public inquiries

Public inquiries should be conducted by a body which meets, as best as possible, the following criteria:

(a) it has the confidence of the police members and senior police officials;

(b) it has the confidence of the complainant and the public; and

(c) it is viewed as acting in the public interest.

The BCCLA believes that these criteria are only likely to be met where the body is a panel composed of persons the majority of whom will be viewed as being sensitive to all three of the interests.

The BCCLA therefore suggests that the panel be composed of three persons, selected from a pool of candidates by the Attorney General, at least one of whom has prior police experience and at least one of whom is from the community at large. At least one of the members should be a lawyer. The panel should be represented by counsel appointed by the Attorney General, as should the member(s) complained against and the complainant, all at public expense.

The panel should have the power to overturn a disciplinary decision, but should not be limited to doing so. The panel should be charged with determining what the response of the police should be to the complaint, whether this consists of a different disciplinary decision, and/or any other response most suited to the nature of the complaint, including ordering a review of police department policies or service levels. The powers and conduct of such a hearing should remain as they are under s.60 of the Act.

The decision of the panel should be final and binding. Aside from a review under the Judicial Review Procedure Act, the BCCLA sees no merit in any further level of appeal.
B. The use of force

We allow the police to use as much force as is necessary to carry out their responsibilities in maintaining law and order in our communities. We have no choice: if the police are to be able to do their jobs, they must be able to use force in pursuing and detaining suspects, in protecting our communities, and (sometimes) in collecting evidence of criminal activity.

But how much force is necessary?

Several highly publicized incidents in the Lower Mainland have served to raise this question in the public’s mind:

  • the shooting of a knife-wielding man on Commercial Drive in 1991
  • the videotaped arrest of Zhang Feng Hua by the Emergency Response Team last year, and
  • the shooting of Daniel Posse during a drug raid in North Vancouver.

The questions raised are different in each case.

For the first: Was it necessary to shoot and kill the man in order to stop him from threatening and endangering both passers-by and the police officers who responded?

For the second: Was it necessary to spray pepper spray in the face of Mr. Zhang, and to kick and punch him while he was lying on the ground?

For the third: Was it necessary to burst into Mr. Posse’s apartment with guns drawn, given the information the police had obtained, and the nature of the suspected criminal activity?

These three incidents are but examples of the force with which police carry out their duties, but which do not always have such tragic results, or which are not always the subject of such widespread public reaction. No doubt those who live in Vancouver’s Downtown Eastside, for example, could multiply such stories many times. The BCCLA stresses that although the Vancouver Police Department is mentioned in two of these three examples, we have no reason for thinking that their policies on the use of force, or their actions, are any different than other municipal police departments in B.C. or the RCMP.

The BCCLA does not have the answers to the questions raised above. Individually, we may have our views, just as many other citizens may have their views. We are not experts on the use of force by police, nor are most citizens, and so our individual views on whether or not too much force was used should carry no special weight.

What the BCCLA wishes to bring to the attention of the Commission is not what we think the answers to the questions posed above should be, but the more fundamental issue of how in a democratic society these questions should get answered. It is our view that the question of how much force is necessary for the police to carry out their responsibilities must be answered by the citizenry, not by the police, even though the police are experts in the use of force and most citizens are not. In a democratic society, it is the citizens who authorize the police to use force against them in maintaining law and order, and so it is the citizens who must, in the end, say how much force they will allow the police to use. If there is to be a balance struck between the level of use of force and the level of law enforcement, it is citizens who must strike that balance.

There is another factor in the equation. The level of force is not only to be balanced against the success of achieving law enforcement objectives, which includes the safety of citizens, it must also be balanced against the safety of police officers. Simply by carrying out their duties, the police place themselves at risk of physical injury and even death. We should not expect our police officers to operate under use of force policies which significantly increase this risk. On the other hand, we should not give carte blanche to the police to use as much force as they please whenever they are placed in situations where there is any risk whatsoever.

The BCCLA believes that there is a range in which increased authorization to use force, especially deadly force, has decreasing returns in terms of the safety of police officers. The BCCLA also believes that there is a point past which increased authorization to use force has such negligible returns in terms of the safety of our police officers that such authorization should not be given. The decision as to where in that range that point is reached must be left for citizens to decide.

We hasten to add that we do not mean that there should be a general referendum on free vote of citizens on such issues. That could be disastrous not only in terms of the safety and morale of our police officers, but also in terms of the effectiveness of law enforcement in our communities. We mean rather that the decision must be up to our elected representatives in the Legislature, who through appointed officials gather the best evidence available from police and other experts regarding the use of various levels of force in various situations, and in light of this, review police policies on the use of force, and make recommendations to our elected representatives as to where in the range mentioned above the point of negligible returns lies.

This discussion of the use of force by police in B.C. in 1993 is not an academic exercise. There is a problem which needs addressing. The problem is not, or not just, that the BCCLA questions whether too much force was used in the three incidents mentioned above or in other, less publicized incidents. The problem is that many of the citizens of B.C. believe that too much force was used, and yet it appears the police do not share this belief.

In a democracy, that is a problem. Perhaps the police are right, and the divergence of views can be traced to the lack of understanding by citizens of the policies on the use of force. Perhaps the citizens are right, and the police policies have passed the point where increased authorization for the use of force has negligible results in terms of the safety of officers and the public. The BCCLA cannot say.

But what we can say is that a public airing of this issue is very much needed, to allow the police to publicly state their case, bring in the experts, and convince us that the policies do not authorize excessive force. And if they cannot convince us of that, then these policies need to be changed.

It may be that this Commission of Inquiry has the authority and the resources to undertake a complete review of the police policies which authorize the use of force. If so, the BCCLA recommends that it do so. If not, the BCCLA recommends that the Attorney General direct the B.C. Police Commission to review all police policies which authorize the use of force, to hear public testimony from all interested parties, and to produce a report to the Attorney General which contains the Commission’s recommendations on these policies.

This report should be made public.

Appendix: A brief history of the BCCLA’s involvement in policing issues to 1993

Since its inception in 1962, the BCCLA has been involved with policing issues in advising citizens about the complaints process, in assisting individuals with their complaints against the police, and in commenting on the laws and operational policies which govern the behaviour of police forces. Up to 1975 there was no formal citizens complaint process for municipal police forces in B.C. The BCCLA acted directly, on average assisting 12 citizens per year to file complaints. The BCCLA attended interviews with complainants and monitored the response of the police. In addition, the BCCLA lobbied individual departments, the B.C. Police Commission, and the Attorney General on issues affecting the relationship between the police and the community.

In 1971, following the Dohm Commission of Inquiry into the Gastown Riot, the BCCLA produced a substantial brief on the police-community issues raised by Mr. Justice Dohm’s Report. The brief addressed such issues as the isolation of the police from the community, the need for a civilian review mechanism for police complaints, and the composition and responsibilities of the Vancouver Board of Police Commissioners.

In 1975, the BCCLA took part in discussions with government officials which led to the introduction of the new Police Act, at the time one of the most progressive of its kind in Canada. That Act set out a formal complaints process which, though it did not meet the BCCLA’s expectations, at least guaranteed citizens a right to have their complaints dealt with by the police. Since then, the BCCLA’s involvement in individual complaints have steadily increased. At present, the BCCLA assists, on average, 50 complainants per year.

In the early 1980s, the BCCLA was invited to appear twice before the McDonald Commission of Inquiry into Certain Activities of the rcmp, and appeared before both the Special Senate Committee and the Commons Justice and Legal Affairs Committee to comment on proposals for the Canadian Security Intelligence Service Act.

Throughout the 1980s, the BCCLA lobbied successive Attorneys General strenuously for changes to the Police Act, changes which would provide for more effective and credible oversight of the handling of citizens’ complaints by municipal police departments, and for a more impartial appeals mechanism. In 1987 the BCCLA produced another substantial brief, Policing the Police, outlining its concerns in these areas, and making 46 specific recommendations for changes to the Police Act. The BCCLA also pressed individual departments for speedier adjudication of complaints, and for fuller disclosure of the reasons for disciplinary decisions.

All of these pleas have, for the most part, fallen on deaf ears. The 1988 amendments to the Police Actfell far short of what the government had previously indicated, and the practices of municipal police departments in handling individual complaints remain today largely as they have been for the past decade.