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Comments on discussion paper for amendments to the Police Act

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The B.C. Civil Liberties Association is pleased to have the opportunity to respond to a discussion paper on amendments to the Police Act.

We are extremely concerned, however, that these proposals have been so long in coming and they do virtually nothing to improve the complaint process from the citizen’s point of view. As long ago as 1982 a great deal of community discussion was initiated by the B.C. Civil Liberties Association and at that time there was a clear consensus on the need for significant change among members of both community groups and the police community. An examination of the proposals for immediate change, however, suggests that the only significant change to the Police Act to be introduced in this sitting of the House, is one which will make the complaint process more restrictive than at present. This is a move in the opposite direction from that expressed by the community. There has been a considerable expression of sentiment to the effect that the present system is already too restrictive. After that expression, it must be seen as a sign of a lack of communication that the Ministry would move to further restrict access through a provision to allow for the denial of investigations to “frivolous and vexatious complaints.” Our comments on this and other proposals that are contained in your discussion paper are included below.

  1. Although the Civil Liberties Association has asked a number of times for an empirical demonstration of the need for such a provision, this has not been forthcoming nor is it mentioned in the Ministry’s discussion paper. Further, we would suggest that it is important that research be conducted in those jurisdictions with a similar provision to determine if this restriction is successful in reducing the overall time devoted to complaints or if the time expenditure is simply transferred to other authorities. This would appear to be a necessary first step.
  2. Failing the lack of empirical demonstration of the need for change and a study of the implications of such a change, our other comments appear less central but are offered for consideration.
    1. The amendment proposes that senior police officials be allowed to deny the investigation of a compliant to a citizen under three conditions: i) if it is determined to be frivolous and vexatious; ii) in a third party complaint where the complainant does not have sufficient interest in the matter; iii) where the complaint occurred more than six months ago.

      All of these conditions require closer examination. It is not clear, for example, just what a frivolous and vexatious complaint is, and the Act or the regulations should provide some further criteria for exercising the new discretion to disallow a complaint. Second, the fact that a third party complaint has insufficient interest in the complaint should be an irrelevant matter. If the person is uncooperative, the complaint will die a natural death. If, however, the allegations are sufficiently serious or investigable without the person’s cooperation there is no reason why the investigation should stop. The community has the right to know if the complaint is founded or not. Third, the six-month requirement is somewhat restrictive. It is not hard to imagine situations in which the complainant may not have known for six months that there was a complainable action. This could be remedied by proposing that the complaint can only be accepted during the six-month period after the complainant might reasonably be assumed to have known about the vents in question. Further, we assume that a complaint alleging criminal action will be accepted even if it is made six months after the events.

    2. There is no suggestion within the proposal for a time limit within which the senior police officials must decide if a complaint will be accepted or not. We recommend that all complaints be allowed to proceed through the informal stage of resolution. If the complaint is not satisfied and wishes to proceed to a full investigation, consideration can be given at that time to the possibility of the complaint being frivolous or vexatious. Nothing is to be gained by denying the person access to the entire complaint process.
    3. The proposed amendments suggest that the complainant ’may’ appeal the decision of the police to refuse his or her complaint. This is not satisfactory. The complainant ’must’ be provided the opportunity to appeal the decision.
    4. The proposal suggests that this appeal be made to the Police Commission in the case of a complaint against a provincial constable and to the Police Board in the case of a complaint against a municipal constable. The Civil Liberties Association is concerned that Police Boards may not be sufficiently removed from the complaint process to provide the appropriate avenue of appeal. They, for example, are themselves directly concerned about the police costs and are the penultimate appeal authority in the case of complaints and disciplinary matters. We therefore recommend that the Police Commission be the appeal authority for all appeals under this section.
    5. The proposal to have a review panel constituted by the Police Commission or Police Board to determine within 60 days whether or not a complaint should be investigated is unacceptable. Such lengthy delays will discourage all but the most determined complainants from pursuing their complaints. Furthermore, such delays are certain to hinder any subsequent investigation of complaints, as evidence may be lost, witnesses difficult to locate, and recollection of the events under investigation may be clouded. There is no good reason why these appeals should not be heard within 15 days of a request for an appeal.

With one or two exceptions, the remaining proposed amendments are technical, and the B.C. Civil Liberties Association does not wish to comment on these. One exception is the proposal to allow Police Boards the option of increasing their numbers by two members. We have recommended increasing the size of Police Boards for some time and welcome this move. We would, however, suggest that the increase in size be mandatory rather than optional, and that the Board be allowed the option of adding an additional two members if the workload demands.

The remainder of the Attorney General’s discussion paper suggests a direction for future amendments to the Police Act. In this regard the work of the Civil Liberties Association is acknowledged. While some of our recommendations are reflected in the discussion paper, the heart of the Association’s brief shows no evidence of having been considered. The Attorney General strongly states that a new ’watch dog’ agency will not be set up but that the existing provisions of the Act (section 44) will be used more often to ’ensure that public issues of a serious nature’ are dealt with. We are dismayed that no consideration has been given to establishing an independent agency or to increasing the degree of independence of the complaint process. We take this to be a serious shortcoming within the province and within this discussion paper. While section 44 currently allows for independent inquiries, they have been conducted very infrequently. We do not believe that this is the most effective or efficient way to improve the workings of the complaint process. This provision will certainly allow for the investigation of serious matters, but it will not be used for the ordinary citizen who feels a complaint has not been properly dealt with, or who is having trouble managing the complaint system. Nor will it provide management with an ongoing review of the process and allow for the necessary corrective action to be taken. We process and allow for the necessary corrective action to be taken. We urge the Attorney General to examine the Civil Liberties Association’s proposals once again and to look carefully at the complaint systems now in effect in Ontario and Manitoba. We need a new system that is appropriate for British Columbia in the 1980s.

While some of the specific proposals for future amendments have our support, many do not.

  1. While the introduction of a definition of a ’complaint’ seems on the surface t be a beneficial move, it is, in our opinion, likely to be used as an obstacle to complaints and may work to further restrict access to the complaint process. If a citizen is dissatisfied with something that happened, that perception makes it a complainable event and the police agency in question should be required to provide, in good faith, a reasonable effort at explanation or investigation. We recommend therefore that no definition of a complaint be included.
  2. We remain convinced that the ’beyond reasonable doubt’ standard of proof is inappropriate for a disciplinary matter. While we support this standard in criminal matters, few citizens have this degree of protection from discipline in the work place. Further the presence of this standard turns the discipline system and the complaint process into more of an adversarial matter, and this limits the opportunities for the citizen and for the police authorities to engage in a process where the ultimate good is remedial and education. We therefore recommend that the Attorney General give consideration to adopting a ’balance of probabilities’ standard. A fuller discussion of this proposal is contained in our 1982 submission to your Ministry.
  3. We are strongly opposed to any amendment to the Act that specifically prohibits the Ombudsman from investigating any matter with regard to police complaints. At present, the likelihood that the Ombudsman has the legal authority to investigate police complaints (which this proposal tacitly admits) may afford the only truly independent monitoring of the complaint process that is now available to citizens. Until some other independent body is established with a specific mandate to other independent body is established with a specific mandate to participate in the complaint process in the ways that we have recommended, the Ombudsman should not be precluded from acting in this area. The possible duplication of police investigations that may take place should be welcomed as an opportunity to demonstrate and to provide some guarantee that complaints were investigated fairly with due regard for the concerns of the complainant.
  4. Finally, we have some concerns about the delegation of legislative authority that may be involved in giving the Minister responsibility for the making or regulations under the Act. We would appreciate some further description of the areas in which the Minister will be permitted to make regulations.