Police Investigating Police – Final Public Report
2. Current Lanscape
The purpose of this chapter is to outline key issues related to the practice of police investigating police emerging from four perspectives: (a) media, (b) political, (c) academic, and (d) key concerns through public submissions to the CPC. By gauging the level of interest and the salient concerns expressed in these four areas, a clear baseline is established helping to inform the CPC's decision-making going forward. Understanding where we are at present is critical in helping to determine where to go next.
2(a) Media coverage
An in-depth study over the past seven years of (a) media and (b) parliamentary discourse on the issue of police investigating police reveals that:
- High profile cases (Dziekanski, Bush, Kingsclear, St. Arnaud2) provide the impetus for discussion in both media and parliamentary settings;
- While the issue of police investigating police is never the primary focus, it is a secondary focus underlying the main issue in most instances; and
- Journalists and parliamentarians alike generally agree that the problem is the system, not the individual police officers.
The issue of police investigating police did not appear prominently in the mainstream news coverage until 2007. More than any other incident, the Dziekanski case spiked media interest in Canada and abroad, and the story continues to perpetuate media attention. Questions around the impartiality of RCMP investigations into their own are raised with coverage focused on the perceived bias during the investigation, particularly after it was reported that the RCMP Commissioner showed support for the RCMP officers under investigation. Some noted that the public is cynical of the Dziekanski investigation and feels that it is not being provided with enough meaningful information in a timely manner. Moreover, Mr. Dziekanski's mother's lawyer, Walter Kosteckyj, has already expressed criticism vis-à-vis the public inquiry for its failure to officially examine the issue of police investigating police.
Media opinion pieces stress the need for civilian review agencies to serve the public and the police.3 They also view the existing police oversight processes as slow and lacking in impartiality and transparency. Alternate models of police oversight (outlined in detail in chapter 5) do not escape criticism. Despite its seeming independence from the police force, Ontario's Special Investigations Unit (SIU)4 is still subject to scrutiny and criticism. With regards to the Alberta Serious Incident Response Team (ASIRT),5 claims are made that the new unit does not go far enough because it should include members of the public on the review panel. Insofar as the CPC's Independent Observer Project,6 the media have also reported public cynicism, including feedback of the recent participants who attested to limited involvement in the review process and drafting of recommendations. One such investigation involved an RCMP officer who pepper-sprayed a group of Aboriginals, including a seven-month-old baby, celebrating a soccer game victory on a Sechelt, B.C. reserve in July 2007.
While improving police training/procedures and developing independent oversight bodies were identified as positive changes that could be made to the current system, there is little or no mention of the special skills or experience police officers naturally have that are ideal for these types of investigations. What the media is sympathetic to, it seems, is the unfair role police officers have to play when investigating their own.
Though there are exceptions,7 journalists generally agree that the problem is the system, not the police. Indeed, they remark on how independent oversight will help RCMP members as well, whose credibility is brought into question when they investigate themselves.
2(b) Political landscape
While the media has reported quite extensively on the issue, Canada's politicians have demonstrated less focus on the subject. With the House of Commons sitting only 136 days a year and the Senate even less, many topical issues are left on the sidelines, either because the chambers are not sitting or because a significant political issue overtakes all other issues, as exemplified by the in-custody death of Ian Bush in Houston, British Columbia. Potentially an issue of interest on a number of levels to opposition political parties, it was never raised in Parliament, likely because it coincided with the release of the report of the Commission of Inquiry into the sponsorship issue (Gomery).
From time to time, Members of Parliament (MPs) call into question the notion of the police investigating themselves but the topic is not raised outside the scope of the daily Question Period (i.e. Committee work). Generally, politicians tend to focus on investigations that would hold the government culpable. This is true in the Dziekanski case, as it was with the Chuck Cadman affair and the RCMP Pension issue. In the Dziekanski case, NDP MP Penny Priddy from Surrey North stated that the RCMP is in a conflict of interest position when investigating its own, and its involvement in such investigations should be removed.8
Interventions around the adequacy of police oversight are less partisan and speak to the legislative measures that are before the House and any shortcomings of a particular bill. Here too, however, MPs take the opportunity to express their dissatisfaction. In an October 2004 debate on Bill C-6, An Act to establish the Department of Public Safety and Emergency Preparedness, Conservative MP Dave Chatters voiced his scepticism towards the effectiveness of the CPC and the RCMP complaint process.
Provincial Legislatures and Committees
Interest within provincial legislatures on the subject of police and issues surrounding police complaints was especially high in British Columbia, Saskatchewan and Manitoba. In these three provinces, over the course of the past number of years, specific incidents have led to an increased public interest in the issue of police conduct. Some highlights of issues of relevance are outlined below.
British Columbia
In British Columbia, there have been a number of studies into the police complaints process. On August 9, 2002, the Special Committee to Review the Police Complaint Process released its Second Report.9 Members of the committee heard two general themes throughout the testimony: one, the police had to buy into the complaints and oversight system for it to work effectively; second, there was concern from some witnesses that the complaint process was "a bit like asking the fox to guard the henhouse."
In August 2005, the B.C. Government appointed B.C. Appeal Court Judge Josiah Wood to review the police complaints system in the province. Justice Wood presented the Report on the Review of the Police Complaint Process in British Columbia in February 2007.10 One of Judge Wood's key findings suggested that the oversight powers of B.C.'s Police Complaints Commissioner (PCC) need to be "significantly enhanced if the current model of civilian oversight is to be effective." Judge Wood further suggested that more active involvement by the PCC in police investigations is a necessity.
The report contained 91 recommendations to improve the system. Among them, Judge Wood emphasized that the PCC be notified of any in-custody and police related death and that all in-custody and police related deaths be investigated by an external police agency. In February 2008, the B.C. government announced changes to the province's Police Act to implement the report's recommendations.
On March 4, 2009 the B.C. government introduced amendments to the Police Act: Bill 6 – 2009 Police (Misconduct, Complaints, Investigations, Discipline and Proceedings) Amendment Act, 2009 and Bill 7 – 2009 Police (Police Complaint Commissioner) Amendment Act, 2009. B.C. Solicitor General John van Dongen stated that the proposed legislative changes address "virtually all" of Judge Wood's recommendations. NDP public safety critic Mike Farnworth emphasized that the changes are insufficient because the RCMP, which constitutes the majority of patrol outside greater Vancouver and southern Vancouver Island, remains excluded from the Act's jurisdiction.
Saskatchewan
In Saskatchewan, of significant relevance was the case of Neil Stonechild, who, in 1990, was found dead in a field outside of Saskatoon after being last seen in police custody. On February 20, 2003, the Government of Saskatchewan appointed Mr. Justice D.H. Wright to conduct an inquiry into the circumstances surrounding the death of Mr. Stonechild and the pursuant police investigation.
The Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild was released on October 26, 2004. The inquiry found that the police investigation was "superficial at best" and concluded prematurely, laden with "glaring deficiencies" which "go beyond incompetence or neglect." Justice Wright noted that local police officers have an "overly defensive attitude" when it comes to complaints against their own and lamented the wide gulf between the Aboriginal and non-Aboriginal population in the province, including a long-standing distrust of non-Aboriginal institutions (such as the police). Wright recommended, among others, a review and improvement of the procedures that deal with complaints from the public about police misconduct.
Judge Wright's recommendations led to several amendments to Saskatchewan's Police Act.11As a result of consultations between local police services and First Nations groups, the Public Complaints Commission was created as a new police oversight body on April 1, 2006. To ensure that the new oversight body was representative of Saskatchewan's diverse population, a provision was added dictating that one of the members of the board be of Métis origin, one a person of the First Nations ancestry, and one must be a lawyer. In addition, an amendment to the Act required that in a case of serious injury or death to a person in police custody or as a result of police actions, an independent observer from another police force or RCMP detachment be appointed. On April 3, 2006, Saskatchewan Justice Minister Frank Quennell emphasized that the new amendments are crucial to the integrity of the province's justice system.
Manitoba
Interest within the Manitoban legislature was focussed on issues such as street crime and police staffing levels. Not unlike the House of Commons, legislative committees have shown little interest in the issue of police investigating police. Circumstances surrounding a death of a civilian at the hands of a police officer brought the issue onto the forefront. On February 25, 2005, an off-duty East St. Paul Police officer, Derek Harvey-Zenk, hit and killed Crystal Taman in an automobile accident. Constable Harvey-Zenk had fallen asleep following a night of drinking with his colleagues. The crash was initially investigated by the East St. Paul Police-the officer's own police unit-and the Winnipeg Police Service Professional Standards Unit. The officer was sentenced to two years of house arrest. Public outcry followed the officer's sentence.
The issue was raised in the Manitoba legislature. On October 30, 2007, the Leader of the Opposition, Hugh McFadyen, observed on how such tragedies shake the public confidence in Manitoba's justice system. In response, Premier Gary Doer stated that a review of the independent prosecutor's office and decisions made in the Taman case would be investigated by a former Queen's Bench judge, former Justice Ruth Krindle. Notwithstanding these reviews, on December 5, 2007, an inquiry, headed by retired Ontario Superior Court Judge, the Honourable Roger Salhany, was called to review the handling of the case by the Manitoba police officers.12
Judge Salhany's report entitled Taman Inquiry into the Investigation and Prosecution of Derek Harvey-Zenk was released October 6, 2008, and emphasized the poor quality of the investigation by the East St. Paul police. According to Judge Salhany, the investigation was: conducted in bad faith; "riddled by incompetence;" a cover-up; an example of "abysmal" note taking; and overall, a "misleading" investigation of Ms. Taman's death. In particular, Judge Salhany paid special attention to two police officers that handled the investigation who gave "untrustworthy and inconsistent" testimony.
Salhany pointed out the partial nature of (criminal) investigations conducted by police officers into the conduct of their own and recommended, among others, the creation of a separate provincial oversight body, independent of the police service, to conduct criminal investigations into the conduct of Manitoba police officers. Manitoba's government pledged to abide by all 14 of the report's recommendations. The creation of new oversight body is scheduled for 2009, at which time the Doer government intends to introduce changes to the provincial Police Act.13
Additional relevant reports
Four additional high profile reports are of relevance to the PIP issue. Justice O'Connor's A New Review Mechanism for the RCMP's National Security Activities, David Brown's Rebuilding the Trust – Task Force on Governance and Culture Change in the RCMP, Ontario Ombudsman's Oversight Unseen: Investigation into the Special Investigations Unit's Operational Effectiveness, as well as Judge William Davies' Alone and Cold: Inquiry into the Death of Frank Paul were actively considered by the CPC in the development of its own recommended model for the RCMP.14
2(c) Academic
A commissioned study by the CPC reviewed the evolution of the different academic trends in police investigation and governance in the 20th century with a focus on North America and the Commonwealth. Overall, 26 directly relevant academic and policy documents were identified and assessed for the purposes of this analysis.
CPC Finding No. 1: What is at issue today is no longer whether civilian review is desirable, but rather, how civilian involvement in investigations can be most effective.
In the context of Commonwealth and selected Western countries, until the late 1970s, there was such a complete lack of civilian involvement in police governance that the system was entirely governed by police investigating and disciplining themselves. Civilian review, developed in the 1970s, relied upon the adequacy and sufficiency of the original police investigation and the civilian review board would have little, or no, independent capacity or authority to authenticate or validate the quality, scope, or sufficiency of the completed investigation.
Civilian review of public complaint investigations was followed by demands for more aggressive and effective independent review. Political governance of the police has shifted away from the traditional models of reactive accountability. The new political accountability is part of the general trend toward a new public sector management standard that emphasizes closely managed self-regulation and governance, reinforced by external oversight. This new accountability is moving towards compliance through tighter regulation, audit, surveillance and inspection.
The problematic nature of PIP and the development of external civilian review suggest that the police have not been able to demonstrate either the willingness or the ability to govern the behaviour of their members at least in ways that create public and political confidence. The distance from, and respect for, the police has changed and more independent and informed media reporting translates into a far more aggressive, questioning and critical press coverage that resulted in a demystification of policing. Combined with an increasing surveillance of police activities through public technologies such as video cameras and vide-phones, the monitoring of the police by the public makes it harder for them to protect themselves from public criticism, review or opinion. This new scrutiny dramatically amplifies high profile incidents and elements of police deviance, feeding arguments for more civilian review and regulation.
From an evolutionary perspective, the current trend towards civilian-based investigative models evolved as a result of growing public and political frustration. At its most radical is a model with complete independent civilian control over the intake, investigation and response to public complaints of police misconduct.
Most academics agree, however, that removing police involvement from self-regulation is not the solution-internal self-governance paired with a degree of external accountability measures appear to be what most predict for the future. The trend towards more direct and expansive civilian involvement will continue unabated. It is believed that accountability will lie in more elaborate and effective modes of internal management and self-governance, rather than in more powerful forms of external governance and control. In short, police will remain part of the solution.
Research is sparse
A key finding of the literature review is the lack of direct research on the actual operations and activities of the various PIP models. There is very little empirically-based knowledge on PIP and most research to date is conducted at a general, descriptive level.
Specifically,
- There are almost no case studies of actual investigations of the various kinds of models or processes that would allow an analysis leading to the establishment of good practice;
- There is no research to clarify the necessary investigative skills required for civilian investigations;
- There is little detailed research analyzing the precise role of police culture in the investigations of complaints against the police;
- There has been little attempt to examine new models of police management and technologies employed to manage and document police activity and behaviour;
- Little research examines the role of police associations and collective bargaining agreements in inhibiting or assisting PIP or alternative investigations; and
- There is little knowledge about how various elements or aspects of PIP or its alternatives can contribute to, or undermine, the public legitimacy of the civilian oversight process.
This absence of direct research on the issue of police investigating police is an important finding because it demonstrates the need for further research and analysis in this regard. This report hopes to help bridge the current research gap on this issue by assessing academic, policy, alternate models and the real handling of police investigations.
General themes emerging in the literature
While overall research in this area is sparse, a number of general themes relevant to the issue of police investigating police are worth highlighting. The first theme questions whether the police can in fact conduct fair and impartial investigations of themselves. Some criticism focuses on the fact that police organizations are insular and protective by nature (with a distinctive and powerful organizational culture) which protects police from external criticism and review by defending and rationalizing police misconduct. Although it is acknowledged that the police may in fact conduct fair and impartial investigations, the public perception or suspicion that they cannot often prevails-the perception of a lack of impartiality or accountability can outweigh the reality in most instances.
The second theme relates to the ability of civilians to conduct effective investigations. While it is generally accepted that civilian investigations may appear more impartial given their very distance from the police culture (and work environment), the argument is made that civilians may lack a sufficient understanding of police work to conduct a full and thorough criminal investigation. The lack of legitimacy afforded to civilian investigators due to reduced levels of cooperation and limited access to necessary information by police can therefore hinder a civilian investigator's ability to undertake effective investigations.
Another trend focuses on the role police and the police culture can play in their own reform. The very nature of the police occupation involves protective and insular behaviours which may be beneficial for police work and can duly hinder an openness to serious reform and progressive development. There is a growing consensus, however, that a more open and accountable process is inevitable, and police officers are aware of the need for change. The solution, therefore, lies in an external review process that understands and addresses legitimate police concerns. There is a need to find ways to involve police in the process of review, investigation and reform. Essentially, to ensure a good working relationship with the police, they must meaningfully participate in the process of self-governance, thereby allowing them to become part of the solution.
And finally, at issue is whether the use of active or retired police officers compromises the independence and integrity of the investigation. It is argued that deploying active (seconded) police officers can ensure the investigative skill set and experience are present, but also places the investigation at risk for being impartial and constrained by shared occupational values and perspective that may affect the findings. Retired police officers may also possess the necessary expertise and since they do not have the same level of identification with the pressures of operational police culture, they may have developed more professional and independent views regarding the police function (especially in the case of senior level investigators in command positions).
In conclusion, the review of the literature revealed a consensus that traditional models of PIP are no longer defensible, either as an effective model for addressing public complaints or a method that satisfies public demands for accountability. Opinions differ, however, as to which civilian alternative for oversight is the most adequate. Civilian review models with limited review mandates are not the solution because of the realistic need for police cooperation and involvement. PIP review models should not be seen as undermining police responsibility and ability to govern their own behaviour. Many advocate, therefore, a promotion of hybrid police/civilian investigative and review models that recognize a legitimate but limited role for the police in the process, combined with a vigorous civilian oversight and investigation. It appears that the future role of the police in the investigative and review processes lies in encouraging more effective internal self-governance and accountability while developing more powerful but collaborative civilian oversight and investigative models.
CPC Finding No. 2: The very nature of conducting criminal investigations requires that police, to some extent, must be part of the solution.
2 (d) Key concerns identified through public submissions 15
The CPC called for public submissions on the matter of police investigating police to help better inform the debate. Nineteen public submissions were made by a diverse range of stakeholders, such as the domestic and international oversight bodies; members of the public; provincial government representatives (including a provincial coroner); non-governmental organizations (NGOs); as well as police commissions and associations.
The most prevalent concern in the submissions was the timeliness of member investigations. One submission concluded that "one of the techniques used by the RCMP to just make everything go away is to put enough time between the event and the conclusion of the investigation [...]."16 The provincial chief medical examiner stated that the lengthiness of a police investigation ultimately delays the inquest process. RCMP members subject to a complaint revealed that an investigation did not begin until six months after the complaint was filed, and took more than two years to complete.17 This prompted a judge in this particular case to rule that "having considered the indifference, incompetence and untimeliness of the RCMP investigating this matter, I find that the police investigation of the Applicants amounted to a complete dereliction of duty and was an 'abuse of process.'"18 Subject members complained of the emotional toll that the long, drawn-out investigation took on them.
The need for transparency in investigations was another concern repeatedly raised. Many submissions implied the lack of transparency in RCMP investigations (especially investigations into the action of its own members) leads the public to believe that it is not privy to what is really happening, but rather is fed an official, extremely vetted and biased version of the investigation. A provincial Department of Justice submission highlighted the public's "expectation of accountability and transparency."19
An NGO submission emphasized that from the public standpoint, police investigations of their own are vulnerable to the suspicion of "cover-up" and because the investigators involved are perceived as biased with underlying departmental and personal interests, such investigations will never appear fair. This comes to the detriment of both the public and the police because the latter may be unfairly subjected to criticism due to the lack of transparency in the system.20 Public perception of a biased investigation overrides the reality, previously noted by the first general theme identified by the academic review.
Many submissions expressed concern about the potential conflict of interest when police forces investigate their own members. A member of the public noted that "[a] conflict of interest is perceived to exist where there is a clear temptation to bias in the exercise of duties which should be impartially carried out for the public good. [...] The system of police investigating themselves seems a glaring anomaly." This perceived conflict of interest became closely interlinked with the Canadian public's mistrust of the RCMP, cynicism that has been fed time and again by a seemingly endless string of incidents in which the RCMP has appeared to choose insular, short-term self-interest over telling the truth."21 Finally, another public submission noted that police officers cannot adequately investigate their fellow members because they are not at "arms length" from the individual being investigated.22
2 Each case summarized in Appendix 2.
3 Journalists who delivered opinion pieces on these issues include Kerry Diotte of the Edmonton Sun, Gary Mason of the Globe and Mail, Daniel Lett of the Winnipeg Free Press and Henry Aubin of the Montreal Gazette
4 SIU is an independent police oversight agency that has the power to investigate and charge officers with a criminal offence.
5 ASIRT is an integrated investigative unit deployed in cases involving serious injury or death as well as other matters of a sensitive nature.
6 The CPC Independent Observer is a program that consists of the deployment of an independent observer as part of an RCMP investigation in order to monitor its impartiality.
7 See Chair-initiated complaint into the shooting death of Kevin St. Arnaud, Appendix 2.
8 Statement made on November 15, 2007.
9 Special Committee to Review the Police Complaint Process (2nd Report).
10 Report on the Review of the Police Complaint Process in British Columbia, February 2007.
11 Amendments are outlined in greater detail in chapter 3, Current Handling (Provincial Legislation).
12 In the wake of the Taman Inquiry, Manitoba's Justice Minister, Dave Chomiak, decided to disband the East St. Paul Police Department in favour of a new RCMP detachment.
13 A new Police Services Act was anticipated to be introduced in 2009 but had not been at the time of the drafting of this report.
14 Highlights of each report can be found in Appendix 3.
15 For all submissions, consult Appendix 4.
16 Member of public, Submission 1, "Comments on Chair-Initiated Complaint regarding the death of an individual at a BC RCMP Detachment in 2005," page 9.
17 October 24, 2006 Decision of Newfoundland and Labrador Supreme Court [Trial Division].
18 October 24, 2006 Decision of Newfoundland and Labrador Supreme Court [Trial Division], p 13.
19 Nova Scotia Department of Justice Public Safety Division, "Re: Commission for Public Complaints against the RCMP," March 31, 2008, page 1.
20 Canadian Civil Liberties Association, "Re: Criminal Investigations of RCMP Officers," March 31, 2008, page 3.
21 Member of public, "Public Submission to the Commission for Public Complaints Against the RCMP Regarding the Public Interest Investigation on 'Police Investigating Police,'" page 1.
22 Member of public, "Re: Police Investigating Police Complaint," March 17, 2008, page 1.