With the implementation in 1975 under the Police Act of a new citizen complaint process, many community organizations, including the B.C. Civil Liberties Association, were cautiously optimistic that an effective mechanism for resolving disputes between citizens and the police had been put into place. The cause of this optimism now appears to have been unfounded. In the view of most, if not all, of these same organizations, the complaint process has since proven to be an ineffective, almost futile tool for redressing allegations of improper police behaviour, even of the most trivial nature.
Over the past year, the BCCLA has initiated discussions with the Attorney General for B.C., the B.C. Police Commission, and members of various police forces to seek appropriate ways of improving the complaint process. We have also discussed the complaint process with other community organizations that are involved with citizen allegations of police misconduct. This brief is largely a result of these discussions. Our recommendations constitute a serious attempt to reconcile some of the conflicts and difficulties that are being encountered both from the citizen and police points of view. As well, we have included a number of comments on matters which do not directly concern the complaint process, but which nonetheless affect police/community relations and are within the purview of the Police Act.
I. Proposal for new office to receive complaints
A. Establishment of new office
The most significant cause for concern about the present complaint process is that it is not effective from the citizen’s point of view. Of the hundred or more complaints received by the BCCLA every year which allege police wrongdoing, only an extremely small number are resolved to the satisfaction of the complainant. The reasons for this appear to be threefold. First, the complexity of the complaint process makes it difficult for citizens to understand the procedure for hearing complaints, the options available to them, and the obligations of the police to investigate and mediate disputes. Second, whether or not they are correct, citizens have doubts about the ability of the police to conduct thorough and impartial investigations of their colleagues’ practices and conduct. in discussing the citizen complaint system, the Police Commission recognized this factor, albeit somewhat obliquely, in its 1980 Annual Report:
It may be reasonably inferred by our 1980 audits that the average citizen has much more confidence in his police than he has in the ability of the system to correct abuses of police power when they do occur. (p.18)
It should be noted that the system’s lack of credibility will naturally decrease the expectation of citizens to have their complaints redressed and, therefore, will also serve to decrease any serious commitment to carry on through the process itself.
Finally, most citizens who wish to file complaints are intimidated by the prospect of having to appear at a police station to initiate proceedings. The formality of the police institution (not to mention the possibility of encountering the officer(s) to be complained about), make the prospect of such a visit extremely unpalatable. in our experience, the present procedure places a great psychological burden on complainants and discourages many from filing or following up complaints.
For instance, we know of a number of community organizations that represent visible minorities that are reluctant to advise their members to use the complaint process, such is the lack of credibility given to the process.
Many of the problems that we have described here could be mitigated if there were a greater degree of civilian control of the complaint process, particularly at the initial stage where no such control presently exists, and where decisions are made to file and proceed with complaints. We note, however, that gauging the useful extent of citizen involvement in, and control over, the complaint process is a difficult matter. At one extreme, complaint systems administered entirely by civilian agencies have rarely had the co-operation of police in investigating and resolving disputes, nor have these agencies had the necessary expertise to investigate disputes themselves. Further, it has been claimed in our discussions with police officials, that such systems tend to increase the police sense of alienation from the community, and that morale may be adversely affected if the authority of senior force members is usurped in making disciplinary decisions. At the other extreme, citizen complaint systems administered by the police, with little or no public input, have difficulty establishing credibility with the community. in such cases, public accountability for Police Actions may be very limited and there is an increased likelihood that abuses and cover-ups will occur.
At this time, we are prepared to argue for a system that would include significant elements of police and formal civilian involvement and review at every level of the complaint process. We believe such a system provides the opportunity for removing the obstacles presently encountered by citizen complainants, while at the same time thinking it likely that the police will maintain a sense of commitment to the process. We propose, therefore, that a complaints officer be appointed to head a new office with limited review and regulatory authority over the complaint process. The complaints officer should be appointed by, and be responsible to, the Attorney General for B.C. Appointment in this manner will establish an authority for reviewing and monitoring citizen complaints which is independent of police agencies. it will also clearly identify the Attorney responsibility, not only for the administration of the police forces under his jurisdiction, but also for the conduct of these forces.
Recommendation:
(1) That a complaints officer, appointed by and responsible to the Attorney General, head a new office with the following authority and responsibilities.
a) To receive complaints directly from citizens (who would retain the option of complaining directly to the police, if they so wished);
b) To refer complaints to the appropriate police agency for investigation and, if necessary, to make recommendations on the handling of investigations;
c) To receive notice of all citizen complaints that are filed in the province and to monitor the processing of all complaints and make recommendations where necessary;
d) To receive a copy of all final investigative reports into citizen complaints;
e) To request re-investigation of a complaint or clarification of information contained in investigative reports;
f) To have discretionary authority to investigative citizen complaints;
g) To have access to all police material and documents relating to citizen complaints at any time during or after the processing of a complaint.
h) To make referrals of unresolved formal complaints to the Board of inquiry and Police Commission level at the request of the complainant;
i) To conduct evaluations of the effectiveness of the citizen complaint process;
j) To select and appoint staff.
Under such a system, citizens would have the option of approaching either the police or the civilian agency to lodge a complaint. The duties described here would (i) make the complaint process more accessible, (ii) provide for the gathering of statistical records on complaints on an on-going, province wide basis, (iii) make it clear that complaints are being or can be monitored by an independent authority, (iv) satisfy to a greater degree citizen lack of confidence in the police to conduct investigations of their own members, and (v) perhaps ensure that more complaints reach the appeal stage (presently an unrealistically small number of complaints reach the Police Board stage). Such a system would not interfere unduly with the independence of the police internal investigative process, but would provide an appropriate external check on the handling of citizen complaints.
B. Appointment of complaints officer
It has been suggested that a complaints officer with review and investigatory authority over the citizen complaint process must have a police background, because only such a person would be competent to pursue and uncover problems in the police structure, and because the morale of the police would be adversely affected if a civilian with no police experience was placed in this position.
We do not find these arguments persuasive. It is, of course, important that the complaints officer be competent and sensitive when assisting complainants or the police, and persistent and objective when conducting investigations. Police training and experience are not necessarily the best, and are certainly not the only, pathways to such expertise. Furthermore, an important factor for the role of the complaints officer, as in other aspects of the criminal justice system, is this: it is not enough that the complaints officer be competent and effective, that Officer must be seen by the public to be competent and effective. We are convinced that a complaints officer who is an ex-police officer, or who has had very close ties, will not be seen by citizen complainants, or by ethnic and community organizations, as an effective, independent, and impartial decision-maker in reviewing former colleagues’ conduct or practices. This view has been echoed by every one of the community organizations with whom we have had discussions about the review of the Police Act. Appointing a complaints officer with a police background, then, will almost certainly undermine the credibility and effectiveness of this position from the public’s point of view.
As for morale, the police cannot seriously argue that they are the only public servants coming under closer scrutiny. The establishment of a provincial Ombudsman to handle complaints about provincial agencies, and the volume of complaints processed by that office, make it clear that the public is not singling out the police for any particular onerous special treatment. The complaints officer will be seen, quite rightfully in our view, as an ombudsman for matters affecting the police. So that this job can be done effectively, and be seen to be done effectively, the complaints officer should not be someone who is closely allied with, or a product of, the profession s/he will be called upon to investigate.
We do recognize, however, that the new office headed by the Complaints Officer must have the support of the police community, if it is to be effective in carrying out its mandate. Nevertheless, there are other methods than appointing a complaints officer from a police background which might be employed to encourage this support. For instance, it will certainly be necessary for the complaints officer to have a small support staff to assist the new office work, and we see no reason why ex-police officers should not be considered for at least some of these positions. Such appointments should enhance the credibility of the new office among the police community. As well, establishing some formal relationship between the Police Commission and the new office might be useful in gaining police support, since both organizations will have many common interests and the Commission has always been on good terms and has had a high profile with B.C. police forces.
Recommendations:
(2) That the appointed complaints officer be an individual who will be perceived by the public as being independent of the police community. An individual who is closely allied with the police or who has professional police experience will not meet this criterion and must not be appointed to this position.
(3) That to encourage police support for the new office, some formal relationship should be established between the Police Commission and the new office, and appointment of ex-police officers to positions to the support staff should be seriously considered.
It may be practical, both administratively and economically, to locate the proposed office in one of the province’s two major population centres. Nevertheless, special attention should be given to the development of procedures to ensure that the new services offered will be available in outlying communities. The need for an independent agency to receive and monitor complaints is arguably greatest in these smaller communities, since the close personal ties that exist between members of smaller rural forces may tend to inhibit or make unlikely thorough and impartial investigations of complaints. Citizens from outlying counties are often reluctant to make use of the complaint process because they perceive this to be the case.
The suggestion that local Justices of the Peace should be used in smaller communities to receive citizen complaints and refer them to the appropriate police authorities is not practical. While it might be useful to use local officials as agents of the new office, we strongly resist the idea of using JPs in this capacity, since their close work with police in law enforcement matters may often place them in difficult conflict situations. We also suggest that the public will perceive them as being too closely allied with the whole police/law enforcement system to take a strong independent role in assisting the handling of citizen complaints. Other individuals who might be considered more appropriate candidates for these positions include legal aid workers, MHR workers, government agents, and members of community organizations. Serious consideration should be given to providing training for these individuals so that they may act effectively on behalf of complainants.
Recommendation:
(4) That the new office, with the assistance of rural forces and appropriate community organizations, appoint contact persons in outlying communities to act, where necessary, as agents of the new office in assisting citizens with complaints. The appointed .individuals must be perceived by the community as being independent of the law enforcement system. Training in the handling of citizen complaints must be made available to these individuals.
Although we have suggested that some relationship be established between the new office and the Police Commission, this should not include using the Commission’s downtown Vancouver office as a base for receiving and monitoring complaints. We are very much concerned that the new office be both psychologically and physically accessible to individuals who wish to use it. otherwise, one of the major purposes for which the new office has been proposed will not be met. The location of the Police Commission offices on the 15th floor of an office building at Granville and Hastings is simply not appropriate.
Recommendation:
(5) That the new office be located so that it is geographically and psychologically accessible.
II. The Operation of the complaint process
A. Educative function
We strongly believe that the functions of the complaint process should be primarily educative, remedial, and mediative, and only secondarily punitive. This should influence the approach taken to citizen complaints, their handling at all stages, and any actions that may follow from the investigations. In our experience, the police, including the investigating officers, often regard the citizen as an adversary in complaint proceedings. We suspect that this is because the complaint process is seen from a police perspective as being essentially disciplinary.
A way of discouraging this view of the complaint process, and at the same time, of encouraging its educative and mediative alms, would be to expand the use of the informal stage. it is our experience that this stage is not being used well at present for its intended educative, remedial, and mediative purposes. Since there is no investigation at this state and statements are made by all parties “without prejudice”, there is a natural opportunity here to satisfy these objectives. This opportunity is often not taken, probably because there has not been clear direction on how this stage should be used.
A precisely defined procedure for processing complaints through the informal stage is necessary. This could include:
- receipt of a complaint by the police,
- an attempt to determine the citizen’s objective in filing a complaint,
- provision of information about the purpose of the complaint process and the options available under it,
- provision of information about other remedies available to redress improper police activity,
- procedures for mediating disputes,
- official notification of the results of this state,
- where the complaint is resolved informally, both the complainant and police officer concerned shall signify in writing their agreement to such resolution.
Presently, no such procedure exists and the result seems to be confusion on the part of both citizens and police on how to make effective use of the informal process. Direction is needed. Making effective use of the educative and mediative possibilities of the informal stage is essential to the proper functioning of the complaint process.
Recommendations:
(6) That every effort be made to inform new recruits of the existence of a complaint process and of the spirit and intent of that process.
(7) That the emphasis on the disciplinary aspect of the complaint process be reduced.
(8) That the informal stage of the complaint process be expanded and its function more clearly defined to emphasize the educative, remedial, and mediative aspects of the complaint process by:
a) requiring all complaints to move through the informal stage;
b) using the “without prejudice” feature of the informal stage to encourage mediation of disputes;
c) incorporating the following procedures into the informal stage:
i) receipt of a complaint by the police;
ii) an attempt to determine the citizen’s objective in filing a complaint;
iii) provision of information about the purpose of the complaint process and the options available under it;
iv) provision of information about the remedies available to redress improper police activity;
v) procedures for mediating disputes;
vi) official notification of the results of this stage
vii) where the complaint is informally resolved, both the complainant and the police officer concerned shall signify in writing their agreement to such resolution.
B. Use of community organizations
The educative aims of the complaint process will further be strengthened if community organizations are encouraged to participate more actively in the process. The BCCLA often attends complaint proceedings with citizens to provide support and help mediate disputes. We see no reason why other community organizations should not do the same. Since there is a significant under-representation of complaints from visible minorities, it would also be useful for individual police departments to establish contacts with local racial and ethnic groups to seek their help in assisting members of the groups they represent.
Recommendation:
(9) That steps be taken to encourage community organizations to participate in a mediative, supporting role in the complaint process.
C. Standard of proof required to test allegations of improper conduct
The criminal standard of proof used to test allegations of police misconduct under the Police Actraises a number of problems and inconsistencies which suggest that a lesser standard of proof ought to be adopted.
Presently, if an officer is acquitted of an indictable or summary conviction offence, this terminates the provisions of the Police Act, and no disciplinary action may be taken “arising out of the same facts and circumstances”, (Regulation 10(3)). We presume that this is because the standard of proof is the same under the Police Act as in a criminal court, i.e, beyond a reasonable doubt, and it would be inappropriate for a disciplinary hearing to suppose itself to be more competent than a criminal court to assess whether the facts of a case support the charge(s). Nevertheless, one can easily imagine a situation where an officer is acquitted on a technicality or where the criminal standard of proof is not quite met, but the court, having reservations about the conduct of the accused officer, recommends that disciplinary action be considered.1 A case can, therefore be made for not automatically terminating the provisions to the Police Act on acquittal. A lower standard of proof would, however, be necessary for testing charges under the Police Act which arise from the same facts and circumstances, if proceedings under the Act are to be meaningful and effective, and are not to duplicate the findings of a previous criminal trial.
The strict criminal standard of proof required on establishing allegations of police misconduct under the Police Act also seriously limits the opportunity for remedial action. Often a citizen will only be interested in receiving an apology following the filing of a complaint, or in having the investigating authority agree that an action or practice is wrong and thus be assured that it will not be repeated. Yet, if allegations of police misconduct must be proven beyond a reasonable doubt before remedial action is considered, the complainant is put at a severe disadvantage and one of the major alms of the Act may be greatly restricted. We also expect that commitment to the educational and remedial objectives of the Act on the part of the accused officers, particularly at the informal stage of complaint proceedings, may be discouraged, if they expect that complainants will not, in any event, be able to prove their allegations using the strict criminal standard.
Finally, it appears to be the nature of disputes between citizens and the police that there are seldom witnesses to the alleged wrongdoing, and that each side may present a plausible, but conflicting, account of the same incident. Given the general prevalence of this sort of situation, we think that it would be reasonable for the disciplinary authority or tribunal to have the discretion to make decisions in favour of the side that presents the more credible case; otherwise, it is possible that even with all the amendments and changes in policy that are being proposed by our Association and others, thePolice Act may remain largely ineffective in redressing a large proportion of disputes between citizens and the police. it may not be possible to exercise this sort of discretion where the criminal standard of proof applies, since the disciplinary authority or tribunal must be certain of the complainant’s version of an incident “beyond a reasonable doubt” before a charge can be upheld.
We take these arguments to be compelling and, therefore, strongly urge that the proof required for testing allegations of police misconduct in disciplinary hearings be on the civil standard, or on the balance of probabilities, and not on the stricter criminal standard.
Recommendations:
(10) That the standard of proof used to test allegations of police misconduct be on the civil standard and not, as it presently stands, on the criminal standard.
(11) That the acquittal of an officer charged with an indictable or summary conviction offence shall not terminate the provisions of the Police Act.
The source of much confusion about the complaint process stems from the dual systems of the complaint process and the criminal process. The complainant may only know that he or she has a complaint about police activity, but finds that the complaint is interpreted by the investigating authority as having a criminal element; this presently removes the complaint from the complaint process to the criminal process. Confusion may arise here over whether this is an appropriate interpretation of the citizen’s allegation. Further, since the decision is made by the police investigating authority, there is often a fear that this may be a tactic used to limit the complainant’s opportunity to seek redress, by referring the matter to a more formal process.
Clearly, difficulties do arise in trying to assess which acts are, and which are not, appropriate for scrutiny under the complaint process. In addressing this issue in a document circulated in 1979, the Police Commission argued for a demarcation between a complainable and a chargeable act. We believe that it is extremely hard, however, to separate criminal from non-criminal acts where allegations of police misconduct are made. To restrict the complaint process to those with only non-criminal elements may make it a trivial process. Further, it has always been the intention of the Police Act that the complaint process not be seen as a punitive one, but one whose objectives are primarily educative, remedial, and mediative. it is important that this spirit be preserved. The Commission’s proposal, however, reduces the opportunity for the complaint process to educate both parties and to bring about the mediation of disputes. As a result, this proposal may seriously limit the purposes the complaint process was intended to serve.
We note that the intention of drawing a distinction between complainable and chargeable acts may be to eliminate some possibility of double jeopardy. we agree that police should be afforded very clear protection against these types of situations, as should every citizen. it is a mistake, however, to suppose that because a police officer may be liable to investigation and penalty both criminally and under the Police Act, this constitutes double jeopardy. it is not unusual for citizens to be liable to criminal prosecution and to investigation and disciplinary action by an employer or professional body, arising cut of the same facts and circumstances. We see no reason why the police should be afforded any special status in this regard. Citizens who wish to proceed under one process, either the criminal or complaint process, should not thereby be excluded from access to the other, as the Commission’s proposal seems to imply.
Recommendation:
(12) That a distinction between complainable and chargeable acts not be built into thePolice Act. in an attempt to rationalize the options following the initiation of a complaint, we suggest the following model:
a) a complaint is made;
b) an attempt is made to informally resolve the complaint. This allows the educative and remedial purposes of the Act to be used. The criminal, civil and Police Act remedies should be explained to the complainant (See also Recommendation #B);
c) if the citizen is not satisfied with the outcome of the informal process, he or she may proceed with a formal complaint or ask a criminal investigation to be carried out.
d) in the case of a criminal investigation, if the constable goes to court on the charge, this would terminate the provisions of the Police Act until after the hearing. if a charge is not recommended or accepted by the prosecutor, the citizen would still have recourse to the provisions of the Police Act;
e) alternatively, if information comes to light which would support a criminal charge during the formal investigation or at any later stage in the complaint process, the citizen may ask for a criminal investigation to be carried out. Again, if the constable goes to court on the charge, this would terminate the provisions of the Police Act until after the hearing. if a charge is not recommended or accepted by the prosecutor, the citizen would still have recourse to the Provisions of the Police Act;
f) 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 or undertake disciplinary proceedings.
To sum up, under this model all complaints move through the informal stage, regardless of the nature of the complaint. We believe that even those complaints which allege matters appropriate for criminal investigation can benefit from the educative functions of this stage wherein the complainant can be informed of the options open to him or her, the nature of the criminal and complaint processes, and so on. it may be appropriate in cases where serious misconduct is alleged that this stage consist of a short interview at the close of which a criminal investigation is launched.
E. Special training for investigating officers
Police officers who receive and investigate citizen complaints against police members perform difficult and specialized duties which are not usually the subject of normal police training. Consideration should be given, therefore, to providing appropriate training to these officers to help them serve citizen complainants effectively.
A common criticism that we have heard from citizens who have filed complaints is that the attitude of the officer in charge of handling their complaints appeared unnecessarily suspicious and defensive. A member of our staff who assists citizens with complaints has witnessed this on a number of occasions when she has been present for police interviews of complainants. in one instance, she observed an interview turn into a yelling match when the interviewing officer incorrectly assumed that his integrity was being impugned. She has also observed instances where the officer receiving a complaint appeared disinclined to offer anything but the minimum assistance required to facilitate the filing of a complaint. While providing special training in the handling of citizen complaints may not have changed these events, we hope that it will reinforce a nonadversarial attitude among officers responsible for the complaint process which would make such occurrences less likely. Special training will also help establish procedural standards and ensure that adequate information is being relayed to citizens about their rights and the options open to them under the Police Act.
Investigating officers may be inclined to view citizen complaints less than sympathetically for reasons that could not be expected to be corrected through training. For instance, the practice of selecting officers to conduct investigations from within the same operational department as the officer against whom an allegation of misconduct is made, presents a conflict of interest situation and may, therefore, create problems. Such situations should be avoided wherever possible.
Finally, we think that it might be helpful to record citizens’ perceptions about the handling of their complaints by having them fill out evaluations at the the nation of proceedings under the Police Act. The information gathered should be useful in helping each force assess how effectively it handles complaints from a citizen’s perspective, and how it might consider amending its practices to better meet citizen concerns and expectations.
Recommendations:
(13) That a training programme be established for all members of municipal forces who are responsible for dealing with citizen complaints. The major objectives of this programme should be to establish administrative standards and to encourage a nonadversarial attitude towards complainants.
(14) That investigating officers not be selected from the same operational department as the police officer against whom the complaint is made. This does not preclude expertise being called upon from within the indicated department where necessary.
(15) That municipal and provincial forces ask citizens to fill out evaluation forms at the termination of complaint proceedings to record citizens’ perceptions about how effectively their complaints were handled.
Most citizens have little knowledge of the rights and due process protections that exist to guard against unreasonable interference in their lives by the police. It should not be surprising, then, that citizens are also generally unaware of the options that are available for redressing complaints about improper police activity, either under the Police Act or through the courts. At present, the responsibility for informing citizens about these matters usually rests with the officer(s) in each force who handles Police Act complaints and investigations. in our experience, there has been considerable variation in how thoroughly they have performed this task.
We are hopeful that a new office appointed to receive citizen complaints would take over much of the responsibility for informing citizens about the limits of police powers, Police Act, procedures, and other options for pursuing complaints. However, under the system we have proposed, citizens will have the option of approaching either the new office or the police with a complaint. Officers in charge of the complaint process will, therefore, have to continue to perform these services. As we have argued above, special training should be given to these officers to help them carry out these duties. in addition, preparation of a guide booklet should be seriously considered. The guide booklet should contain detailed information on matters a citizen should be familiar with, if she or he has a complaint about Police Activity. The complexity of the complaint process, combined with the public’s general lack of knowledge about its rights and options for securing redress against the police, make such a guide a needed practical and educational tool.
Recommendation:
(16) That a guide to the Police Act complaint procedure be prepared and made available to citizens who may be interested in pursuing complaints and to community organizations that have some involvement in the complaint process. The guide should contain detailed information in lay language about the objectives and operation of the complaint process, and should be available in translation. As well, the guide should contain information about other options for seeking redress, and should inform citizens about the limits of police powers and of the rights and due process protections that exist to guard them against unreasonable interference by the police.
G. Access to information about complaints
An area of dissatisfaction commonly referred to by citizens is the lack of information they receive both during and at the conclusion of investigations into their complaints. Citizens must have a general right of access to police records of investigations into their complaints including information about any disciplinary actions that may have been taken or recommended so that they may make informed decisions about whether investigations have been carried out properly, and so that they will know whether there are grounds for pursuing complaints further. Presently, no such right exists. We doubt whether the complaint process will ever have the confidence of the public unless information about investigations becomes more freely available.
We recognize, however, that not all police records of investigations into citizen complaint should be available to the complainant. In particular, information should not be released which may jeopardize an ongoing police investigation, or which may possibly lead to a civil suit against a third party. Where access to information is restricted, and a complainant is not able to gather a sufficiently complete account of the investigation to know whether it has been conducted properly, we expect that the complaints officer who we have proposed will have an unrestricted right of access to all police records concerning citizen complaints may be called upon to clarify sufficiently the background of the investigation so that the complainant may make an informed decision on whether or not to proceed further.
Complainants should also be informed of the progress of their complaints on a regular basis. in our experience, it is not unusual for citizens to go uninformed about actions taken in response to their complaints for many weeks, or until proceedings are completed. in such cases, citizens have no way of knowing whether their concerns and input are being properly considered, and they may lose interest in pursuing their complaints as a result.
Recommendations:
(17) That at the termination of an investigation into a complaint, the complainant be given access to the final investigative report, excluding any information contained therein which may jeopardize an ongoing police investigation, or may possibly lead to a civil suit against a third party. The complainant should be informed of this right on Form 9. Copies of any of this written material should be provided on request. Where information is not available which would help the complainant determine whether there are grounds to continue pursuing the complaint, the complaints officer may be called upon to clarify sufficiently the background of the investigation so that the complainant may make an informed decision on whether to proceed further.
(18) That complainants be informed regularly of the progress of the handling of their complaints. in general, this should be done either by phone or in writing once every two weeks.
The apprehension with which most people approach the police to file a complaint can be compounded by the use of tape recorders at interviews with investigating officers. We are certain that the use of tape recorders has been unnecessary in virtually all of the cases where we have seen them employed. Their use puts complainants at a distinct psychological disadvantage, and we know of cases where the threatened use of tape recorders has been sufficiently intimidating for citizens to discontinue their involvement in complaint proceedings. We are therefore, extremely reluctant to see tape recorders used in complaint proceedings. However, if tape recorders must be used in some circumstances, we suggest the following guidelines should govern their use.
Recommendations:
(19) That the use of tape recorders not be permitted at the informal stage.
(20) That during an interview for a formal investigation, if it is necessary to tape the proceedings, the following guidelines be followed:
a) that the complainant be notified before the interview that the discussions will be taped the complainant should also be informed that he or she way tape the interview;
b) that a duplicate tape be made available on request to the complainant;
c) that the p se for taping the interview and the legal ramifications be explained;
d) that if the complainant does not wish to be recorded, he or she be requested to prepare a written statement. The investigating officer could review this statement with the complainant and fill in any notations by hand. A copy of the noted statement should be provided to the complainant.
Consideration should be given to providing a statute of limitations on the filing of complaints. Regulation 34 suggests that a disciplinary action cannot be taken six months after the infraction or 3 months after the discovery of the infraction. We agree that this is an appropriate limitation.
Recommendations:
(21) That a statement be added to the Act regarding the filing of complaints that is consistent with Regulation 34.
We strongly urge that time limits be imposed on both the informal and formal stages of the complaint process. We have had several cases where the absence of such limits has led to unreasonable delays in the processing of complaints. Further, citizens (and ourselves) have thought on occasion that a complaint was being handled at the informal stage only to find that it was being handled as a formal complaint, and vice versa.
(22) That citizens be informed in writing of the stage through which their complaint is proceeding.
(23) That the informal stage of the complaint process be completed in no more than 21 days, unless it can be demonstrated to the proposed new office that circumstances which the force could not control hindered the speedy conclusion of this stage.
(24) That the formal stage of the investigation be completed within 60 days, unless it can be demonstrated to the proposed new office that circumstances which the force could not control hindered the completion of this stage.
Although the Police Act sets very strict time limits on the initiation of a public inquiry at the Board level, it is not always satisfied. Section 40.5 of the Police Act states that within 14 days of receipt of a request for a public inquiry the citizen will be advised of a date and the inquiry shall occur on that date. We recently had one of the very few cases that go to a public inquiry stalled for almost a year. We are not clear what the reasons were for the delay, but it appears to be in clear violation of thePolice Act.
Recommendation:
(25) That where the Board or “disciplinary tribunal” does not initiate a hearing within the required time, the appeal shall immediately go to the Police Commission.
We have had quite a few examples of charges of public mischief or threats of such charges arising from a complaint in questionable circumstances. For instance, complainants may often be warned that they will be liable to public mischief charges for providing incorrect information in their complaint even before they have provided any information or before there has been any investigation. Citizen complainants often perceive this sort of action as an attempt to intimidate them into not filing or following up complaints.
To avoid this situation, we suggest that no mention be made at the informal stage of the possibility of public mischief charges being laid. it is difficult, in any event, to understand how such a charge could be contemplated at this stage, since all statements are made “without prejudice”. in other situations, where public mischief charges are contemplated, we think that it would be appropriate for the police to inform the complaints officer of this, who would then inform the complainant. This would provide a check on the use of this warning and would perhaps make it less likely to be perceived as a threat or an attempt to intimidate. General information about what constitutes grounds for public mischief charges against complainants could be included in the guide booklet and could also be conveyed by the complaints officer.
As well, the $500 penalty referred to in Section 43.2 of the Police Act should be removed. The complainant process is already sufficiently intimidating to the average citizen and a financial penalty is certainly more of a threat to the citizen than it is to the constable involved. We acknowledge that if the inquiry stage were abused to a great extent, such a penalty might be necessary, but at the present time, there is no clear evidence to support this provision.
Recommendations:
(26) That a clause be added to the Regulations clearly stating that at the informal stage no mention shall be made of public mischief charges being considered.
(27) That any police warning of possible public mischief charges being laid be made to the complainant through the complaints officer.
(28) That the $500 penalty referred to in Section 43.2 of the Police Act be removed.
A few years ago the Police Commission proposed that the following addition be made to Section 39 of the Police Act:
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 that the remedies provided for in ss. 39 and 40 of the Act not be available to such a person without leave of the court.
We are sympathetic to the fact that some citizens abuse the complaint process and take up considerable time with several agencies in the province. We do not feel, however, that the provision introduced above will necessarily solve this problem, nor do we believe that this clause can be accepted as it stands. Before taking any action on the matter of chronic complainants, 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 complainants 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 restrictions and that the method introduced here is the most effective, we would still be unhappy with aspects of the suggested provisions. Under its terms, a person has to have initiated only two complaints in his life which have been deemed to be unreasonable. This hardly seems to be an indication of a chronic complainant. Further, it is not clear whether this process could be initiated in the middle of the complaint process. Since one of the objectives of the Police 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 clearly as possible to remove abuse and to demonstrate a genuine interest in trying to resolve complaints. Finally, there is no provision for removing one’s status as an “unreasonable complainant”—is it to stay for life?
More recently, the Police Commission has proposed a slightly altered amendment to the Police Act to deal with “trivial and vexatious” complaints. The major arguments against the Commission’s proposal apply here as well, namely, that objective evidence has not been adduced in support of this provision, nor is it clear that such a provision will actually save time and resources. Yet, if such an amendment is adopted we would prefer to see the complaints officer used to block “trivial or vexatious” complaints from reaching the appeal stage as has been done in other jurisdictions (in Toronto, for instance), with the possibility of an appeal of a decision against the complainant to the local Police Board. Having this responsibility lie with the complaints officer, instead of the police and judiciary, will be seen by the public as a situation which is less open to abuse and more impartial in deciding which complaints are not appropriate for Police Board scrutiny. it would also mean that bona fide complaints that come before the Police Board would have the strength of the complaints officer’s sanction that they are neither trivial nor vexatious.
Recommendation:
(29) That if provisions are to be introduced into the Police Act in respect of non bona fide complaints, the complaints officer be empowered to block such complaints from going to a Police Board of inquiry with an appeal of a decision against the complainant to the local Police Board. L. Appropriate disciplinary authority
Section 39.1 of the Police Act states: “A person having a complaint against a provincial constable or a municipal constable shall complain to the appropriate disciplinary authority.” The “disciplinary authority” is defined as the chief constable of a municipal force. we believe that this section is sufficiently ambiguous to be ineffective. Since most citizens do not know who the disciplinary authority is, the request that they complain to this office is meaningless. We are not suggesting that this is a technique for avoiding complaints, but it does put the onus for directing the complaint on the wrong person.
Recommendation:
(30) That Section 39.1 be amended to read: “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 the complaint to the appropriate authority.”
III. Other issues
A. Role of the RCMP under the Police Act
We believe that the Attorney General must be responsible for all police action within the province. While we realize that there are some difficulties raised by the presence of the RCMP performing national duties, we still hold this position with the exceptions pointed out in our earlier brief to the MacDonald Commission (January 31, 1979, See Appendix A).
We are restricting our comments here to the Police Act and Regulations, since we do not yet know what the implications will be of the proposed changes in the RCMP Act and of the decision of the Supreme Court that this force is not accountable to the Attorney General for discipline. We do note, however, our recorded statement of support for an integrated system of police complaints in the province. We would hope that some relationship can be maintained at the Police Commission level. We suggest, for example, that the new office described in this brief be permitted receive complaints directed to the RCMP and shall forward these to the appropriate authority. This would at least satisfy one of the needs that we regard as important that citizens have the option of initiating complaints with an independent authority.
Recommendations:
(31) That every effort be made to integrate the Police Act and the RCMP complaint procedures.
(32) That the Attorney General be responsible for all police activity in this province.
(33) That the new office described in this brief be permitted to receive and monitor complaints directed at members of the RCMP.
Allegations of criminal wrongdoing against police constables present members of the criminal justice system with a potential conflict of interest. Members may have to investigate those on whom they will have to rely at a later date, and prosecutors may have to prosecute those on whom they will have to rely in the future for support. This is an issue addressed by the Marin Commission in 1976, and we are on record as supporting the recommendations of that report: “it seems obvious that police officers accused of criminal misconduct should be subject to prosecution on the same basis as members of the public…. To ensure that this occurs, there should be federal offices with the position and powers of a police ombudsman and of a police prosecutor.”
While these statements were initiated as a response to allegations made against the security section of the RCMP, they apply in a more general context, as well. Police members may not be subject to prosecution on the same basis as members of the public if these are conflicts of interest within the law enforcement system that may impede the prosecution of police. To avoid these conflicts and to ensure that a criminal charge is investigated and prosecuted properly, it may be necessary to appoint investigators and prosecutors who are independent of the regular law enforcement system. Having special investigators and prosecutors may not remove all of the difficulties surrounding the charging and prosecution of police members, but we believe that this would be no worse than the present system and may, in fact, be an improvement.
Appointing a Crown Prosecutor from the Attorney General’s Victoria office to receive and review criminal informations laid against the police may also satisfy these concerns to some extent, and should be considered as an alternate possibility, if the appointment of independent prosecutors and investigators is not economically practical at this time.
Recommendations:
(34) That the Marin Commission recommendations be adopted with respect to the appointment of independent police prosecutors and investigators for municipal forces. if this is not economically practical at the present time, a Crown Prosecutor in the Attorney Victoria office should be appointed to receive and review all criminal information laid against the police.
There are police forces in the province about which more needs to be known and whose roles need reexamination. We have recently become aware of the mandate and the working conditions of members of the CPR police force and are concerned for several reasons. They are the employees of a private corporation, but appear to have the policing powers of regular police constables; their training may be inadequate for the very difficult duties they must assume; the police members may not have adequate due process protection; and citizens may have restricted access to the making of complaints. While this force may have met a legitimate need some years ago, we think that the existence of a police force with the powers of provincial constables and the status of private employees of a large corporation is an anachronism and must be examined by both provincial and federal authorities. If the force continues to exist, it must be brought under the control of the B.C. Police Act, and its training, selection, and disciplinary processes brought up do date. There may he other forces in a similar position, e.g., Canadian National Railway and National harbours Board police.
Recommendations:
(35) That a study be initiated by the Attorney General to determine the continued necessity of private police forces in B.C. with Peace Officer status.
(36) That the CPR, CNR, NHB, and other similar forces be brought under the control of the Police Act.
A 1977 addition to the Regulations of the Police Act provides for a lengthy set of constraints on the use of firearms, provides guidance for their use, and outlines procedures to be followed after use. We support these regulations fully. We note, however, that the police use a second harmful “weapon” against the citizens much more frequently, and that no explicit regulation in the Act coveys such use, although individual police departments may have their own policies. This “weapon” is the police dog. We have received complaints regularly from citizens alleging considerable harm done to them by police dogs in situations that they believe did not require their use. We also note that we have had considerable difficulty identifying internal control mechanisms regarding the use of dogs.
Recommendations:
(37) That the Regulations be amended to provide some direction on the use of dogs. At a minimum, these regulations should state (as they do for firearms) that: “Before deploying a police dog against a citizen, a member of a police force shall satisfy himself that lesser means and assistance are not readily available or would not gain control over a dangerous situation.”
(38) That procedures shall also be provided for reporting an action whenever a dog has been deployed against a citizen.
(39) That the Police Board shall be advised of any situation in which a dog causes injury to a citizen.
It is common knowledge among members of the police forces that if they are in a situation that might result in a citizen’s complaint, they should protect themselves by insuring that the citizen has been charged with some offence. This is seen as a potential justification of the action which may result in a complaint. Similarly, citizens who make a complaint are intimated by the possibility, or the reality, of a charge being laid against them in retaliation.
Both of these situations are difficult to control, but it is clear that the citizen is put at a disadvantage in either case. The first situation needs no special control since we count on the defendant’s counsel to identify situations when a charge has been used inappropriately. The second situation is perhaps amenable to some kind of control. We have considered the possibility of having a supervisor require a member being complained about to list all of the charges that he is contemplating but still has outstanding. This may prevent the member from laying charges after it is learned that a complaint has been made. However, the very request from a supervisor to provide a list may cause the member to lay charges against those citizens he feels may be making the complaint. Nevertheless, it is important to provide the citizen with some assurance that a mechanism exists to protect him from retaliation whenever possible. Although we trust the courts to provide this protection, it should be noted that even if found innocent of the accusation, the citizen has suffered considerable expense and inconvenience.
Recommendations:
(40) That the proposed new office receive notification of complainants who have had charges laid against them.
The Police Boards in the province are too limited in their representation and functions. An examination of the Police Act reveals that these Boards are given a very broad mandate which has gone virtually unused, including the authority to engage in broad studies concerning matters relating to law enforcement, police, and policing. We are also concerned that the minimum size of a Board is set at five members, (one of whom is the Mayor and another a council appointee). Further, any three of these constitutes a quorum. Important police business can, therefore, be undertaken with very community input. The size of a Board should relate to the size of the force it oversees, and its composition should reflect the different religious, ethnic, racial, and class elements present in the community. The minimum size for a force of Vancouver’s size should be ten members.
Recommendations:
(41) That the minimum size for Police Boards be increased and that the composition of these Boards reflect the racial and cultural mix of the communities they serve.
(42) That Police Boards be encouraged to use their broad mandate to participate more fully in policing and law enforcement in their communities.
The Police Board provides the first access to a citizen panel and, as such, it plays an important symbolic and substantive role. However, the Police Act continues to describe its role in the complaint process as one of a “disciplinary tribunal”. There is clearly a need for such a tribunal, both for citizen and police member protection, but we think that the role of the Board should be described more broadly. it is often the case that citizens do not wish to see discipline dispensed, but only wish to have an opportunity for a non-police member to hear their story and agree that their version is substantially correct, or to receive an apology, or at least to know that some policy consideration will be entertained to reduce the possibility of the same event occurring again.
Recommendations:
(43) That the role of the Police Board be more properly defined either by indicating that it has two roles an appeal of disciplinary hearings and an appeal of citizen complaints or by using a more general descriptor to characterize its role.
We would like to congratulate the Vancouver Police Department for establishing ethnic liaison teams for the Native Indian, Italian, Chinese, and East Indian communities in the City. The work of these liaison teams has been enthusiastically supported by the ethnic community organizations that we have spoken to, and the liaison teams appear to have been effective in assisting the police to overcome cultural barriers and in gaining the trust and confidence of the ethnic communities they serve. We encourage the establishment of similar teams in police forces throughout the province.
More generally, we would like to see steps taken to encourage a more multi-ethnic police force in B.C. it is particularly important that the law enforcement system reflect the cultural makeup of our society, in order to promote tolerance and a better understanding of the different attitudes and concerns of minorities. We recognize that it has been difficult to recruit from many minority groups for a variety of social and cultural reasons. We would however, like to see efforts continue in this area.
Recommendations:
(44) That police forces in B.C. be encouraged to follow the Vancouver Police Department’s model for using liaison teams to establish closer links with ethnic communities.
(45) That steps be taken to encourage recruitment from ethnic minorities to positions in the B.C. police force.
We realize that Police Unions have assumed an increasingly important role in protecting the interests of their members, and in so doing define more and more events as occasions for conflict. We are not sure how these unions perceive or affect the complaint process, but would recommend continuing discussion between union officers and management on the importance of the complaint process to the organization and all of its members.
Recommendation:
(46) Discussion should be encouraged between Police Unions and management on the importance of the complaint process to the organization and all its members.
B.C. Civil Liberties Association Comments to the McDonald Commission Regarding the Jurisdiction of the Attorney General (January 1979)
D. Provincial jurisdiction
87. Under section 92(14) of the BNA Act, the provinces have responsibility for the administration of justice, which has been held to include the policing of the country and the suppression of crime and disorder (Reference Re: Adoption Act, etc. (1938) S.C.R. 398 our p. 403). in light of this, to the extent that the Security Service attempts to combat domestic subversion involving threats of criminal behaviour, it is properly under the authority of the provinces. The same could be said with respect to other RCMP federal units, mutatis mutandis, only if the Security Service limited itself to activities which arguably pertained to national defence and not to law enforcement would It be outside the constitutional reach of the provinces. Even in this case, since the provinces would be responsible for prosecuting any criminal behaviour on the part of the Security Service, we contend that the provinces would have to have access to information about Security Service operations when suspicions of criminal activity surface. Unfortunately, as the recent Supreme Court decision in Keable v. Procureur General du Canada, et al. illustrates, the federal government has the authority under the Official Secrets Act and the Federal Court Act to suppress needed information. We remind the Commission of our recommendations concerning these acts.
88. In eight provinces, the RCMP provides provincial and municipal police services under contracts between the provinces and the federal government. It is our understanding that the B.C. contract provides that the internal management of the force is the responsibility of the federal government. It concerns us that this clause might deprive the provinces of effective control over provincial law enforcement.
For example, given this clause it is questionable whether provincial attorneys general could audit internal RCMP practices to ensure the force operates within the law, establish priorities in law enforcement, set overall provincial police policies, and handle citizen complaints. If our information is correct, the B.C. contract contains a clause to the effect that nothing in the contract shall be interpreted to conflict with provincial responsibility for the administration of justice. But we question whether the contracts do not in fact create a situation which conflicts with this provincial responsibility. If so, this is not merely a constitutional problem. It may mean that the RCMP provincial and municipal units are not under effective civilian control. We think it highly doubtful that the federal Solicitor General could effectively monitor eight provincial police forces as well as the RCMP federal units. The evidence of how effective the Solicitor monitoring the control have been is in the Commission’s transcripts.
89. We note that the financial arrangements between the federal and provincial governments, whereby the federal government subsidizes provincial and municipal policing in eight provinces, may discourage the provinces from actively asserting their authority.
90. In this connection, we draw the Commission’s attention to a report in the Vancouver Sun of July 27, 1978 concerning the reaction of the Alberta Attorney General to the finding of the provincial Laycroft Commission. The Attorney General is reported to have advocated changes in the contract between Alberta and the federal government to give the province greater access to RCMP criminal investigation information and to make the Alberta division head responsible to the provincial Attorney General.
91. Given all of this, we urge the Commission to investigate these contracts with a view to ascertaining whether they permit effective provincial control over law enforcement. The Provincial constitutional responsibility must be recognized in, and enabled by, the contracts.
92. The Commission must consider how RCMP units engaged in law enforcement and “the suppression of crime and disorder”, including the Security Service to the extent that it engages in such activities, can be brought under effective provincial control.
IV. Structure of the security service
93. We have little to add here beyond some remarks about police training.
94. Police behaviour depends fundamentally on police training. We think that recent events show a need for RCMP training to include a serious study of the spectrum of political ideologies represented in Canadian political life, and of the political philosophy underlying the democratic and libertarian values of our society. It may be that this could seriously be undertaken only if the educational prerequisites for recruits were upgraded. If so, we strongly urge that this be done. The introduction of studies in political theory to police training would, we hope, strengthen police understanding of the importance of the rights of individuals in a democratic society.
1. An interpretation of Regulation 10(3) is possible such that an acquitted police officer may be charged with a disciplinary offence under the Police Act arising from the same incident on differentfacts and circumstances. For instance, an officer acquitted of manslaughter in a criminal court could conceivably be charged under the discipline code with improper use of a firearm since this may involve the examination and testing of different facts and circumstances. While this would satisfy, to some extent, one of the concerns we have raised, we are not aware of any case where this interpretation has been followed and suggest that if our Recommendation #11 is not implemented, the language of Regulation 10(3) be clarified so that this interpretation is explicit.
