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The standard of proof in the Police Complaint Process Submission to the Committee to Review Police Act Discipline Regulations

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The B.C. Civil Liberties Association understands that, prior to the proclamation of the new Police Act, the Police (Discipline) Regulations will be reviewed. We also understand that section 23 of theRegulations will receive attention. Section 23 concerns the appropriate standard of proof for disciplinary proceedings involving members of municipal police forces. In what follows we argue that the present use of the criminal standard of proof (“beyond a reasonable doubt”) should be abandoned, and replaced by the civil standard of proof (“on the balance of probabilities”).

  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 why this is so. The need to protect employees from wrongful allegations of misconduct must be balanced against the need to respond adequately to claims of misconduct. This response is adequate when the allegations have been fully and impartially investigated, and the evidence for them weighed against the employee’s claims. The use of the civil standard of proof simply makes good sense—it balances the competing needs 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.
  2. We have heard the argument that police officers may as a result of disciplinary hearings be subject to criminal charges, and so the standard of proof in disciplinary hearings should be the criminal standard. This argument does not wash. First, any employee may be subject to criminal charges as a result of a disciplinary process. Second, the disciplinary process is not a criminal process. It is simply a set of rules and guidelines which determine the procedures under which members of the force may be brought to task for misconduct. Almost all employer/employee contracts contain such procedures. Thus, this argument does not provide a reason for treating police officers as a special case.

    Furthermore, the decision to proceed with criminal charges rests with the Crown, and the Crown would be fully aware that evidence of misconduct which has been found to be sufficient on the civil standard of proof may not be strong enough to warrant the laying of charges. And even if the Crown thinks that the evidence is sufficient, a judge or jury may still find it insufficient to convict.

  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 not only lobbies on their behalf, but supplies free legal counsel and investigative support. Adverse disciplinary decisions can be appealed to the local Police Board, and if the officers are not satisfied, to the B.C. Police Commission. There is thus more than adequate protection for police officers from wrongful allegations of misconduct.
  4. There is a special reason why using the criminal standard of proof in police disciplinary proceedings is inappropriate: because of the unique role that police have in our communities, the police need to be more, not less, sensitive and responsive to allegations of misconduct than other employees. We, as citizens in a democracy, have invested in our police extraordinary powers over ourselves: to assemble information about us, to control our actions, to restrict our freedom and to invade our privacy. 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.

    Not only must these powers be exercised with extreme caution, they must be seen to be exercised with extreme caution. For if the police are to do their job properly, they must have the cooperation of the great bulk of the citizens. And to have that cooperation, it is of paramount importance that when allegations of abuse of their extraordinary 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. For 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 response is particularly unsatisfying to most 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 in 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. The circumstances surrounding incidents about which citizens complain 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.
    1. 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 easily be rejected by disciplinary officers when applying the criminal standard of proof.
    2. 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, or afraid to come forward, or just don’t want to get involved. And the lack of corroborating evidence is almost always sufficient to raise a reasonable doubt about the truth of the allegation.
    3. Investigations can take quite some time, especially if the complainant pursues the matter past the initial complaint 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.
    4. 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.

Conclusion

It is the view of the BCCLA that the replacement of the criminal standard of proof in police disciplinary proceedings by the civil standard would go some distance in improving the police complaint system in B.C. We believe that it would serve to increase the sensitivity and impartiality of the response of municipal police forces to allegations of misconduct against their members. We believe it would, as a result, decrease the frustration and disillusionment that citizens too often feel when they engage the complaint process. The long-term effect will be greater respect for police and greater cooperation between citizens and police, cooperation without which the job of the police is made difficult if not impossible.