Police Investigating Police – Final Public Report
5. Different Review and Oversight Models
There are currently different models for police oversight and review both within Canada and internationally. Across Canada, provincial governments have set up agencies with varying levels of authority and independence-some have even established more than one. Most provinces have seen numerous legislative changes at least once since the bodies' creation.
An analysis of police oversight bodies in other democracies rooted in British common law tradition reveals an equally diverse array of powers, obligations and scope of review among the oversight models ranging from the municipal level (Chicago) and the regional level in South Australia, to country-wide in Northern Ireland, New Zealand and the United Kingdom.
A comparison of other models, much less their application to the Canadian context, cannot be done without the acknowledgement of the particular characteristics of our country. The size of the territory and sheer vastness of Canada must be taken into account when attempting to "import" a model from a much smaller country like Northern Ireland, or a country with only one police service such as New Zealand. Factors such as historical relationships between Canadian communities and the police, socio-political stability and even budget constraints need to be taken into consideration-as many interlocutors point out, one single model "cannot be simply exported anywhere and operate just as effectively."45
Nevertheless, it is useful to analyze police oversight in other jurisdictions for the purpose of legislative and factual comparison. How other governments choose to handle allegations of police misconduct can offer some valuable lessons on how best to undertake adequate and effective investigations of police here at home.
Methodology
An analysis of several police review or oversight agencies was conducted through a review of available literature as well as interviews with individuals holding high ranking positions within such agencies. Information analyzed was either in electronic format or hard copy such as the agency's annual report, statistical reports and departmental performance reports. In addition, news releases and relevant literature were examined in order to acquire a full picture of the agency under study.
Between October 27, 2008 and November 25, 2008, interviews via telephone were conducted with high ranking officials from each of the 14 bodies examined in this chapter. The discussions ranged between 45 and 90 minutes in length and were extremely helpful in providing additional information and clarification.
Each body was assessed according to the following criteria: mandate, background, jurisdiction, legislative basis, handling of the complaint process (or handling of the investigation), statistical analysis,46 structure, budget and financing, investigator credentials and training, and policies and procedures. Individuals from each agency were sent a copy of a profile created as a result of researching the agency (web, etc. and interviews) as well as a questionnaire detailing each agency's powers. All interviewees offered useful feedback regarding the profiles, as well as detailed answers to all questions.
In addition, individuals interviewed were asked questions in reference to the extent of their legislative powers. Information gathered allowed for a more complete profile of each agency, and in one case-that of the recently created office of the Independent Police Review Director (IPRD) in Ontario-offered information that is not yet available in written form.
Finally, individuals were asked opinion-type questions regarding the characteristics of an "ideal" police oversight body, as well as features of an oversight system most suitable for Canada. Their answers are provided throughout the body of this chapter.
From this work, results were compiled into one complete profile of each review or oversight body. Examination of all existing bodies in practice generated an understanding that created three main models of police oversight.47
Types of Models
In the most general of terms, police oversight models differ in the level of dependence by the oversight body on the police in criminal investigations. Additional features that set the models apart include the level of influence exercised over an investigation, the ability to refer an investigation to another police force, as well as the nature of the investigative team.
There are three main categories of police oversight models: (1) Dependent Model; (2) Interdependent Model; and (3) Independent Model.
The dependent model essentially represents more traditional "police investigation of police." There is no civilian involvement in the criminal investigation and, therefore, there is a total dependence on the police for the handling of criminal investigations. There are two sub-categories to this model: (1.1) police investigating police and (1.2) police investigating another police force.
In the police investigating police sub-category, the police service is fully responsible for the criminal investigation and administration of public complaints alleging criminal offences. The oversight body in question does not conduct criminal investigations, but it may recognize complaints regarding service, internal discipline or public trust.
The second sub-category involves "police investigating another police force" in specific cases so that the police service does not investigate its own members in instances of serious injury or death. In selected Canadian provinces, memoranda of agreement exist between the local police and the RCMP that allow an outside police force to handle the investigations of the RCMP member(s).
The interdependent model introduces into the criminal investigation civilian involvement to varying degrees. There are also two sub-types to this model: (2.1) civilian observation and (2.2) hybrid investigation.
In the first sub-type of the interdependent model, a civilian observer is assigned to the police investigation to ensure that the latter is conducted with impartiality.
The hybrid investigation comprises mostly of a civilian oversight body whose involvement in the investigation goes beyond the role of mere overseer. In this model, the police force may be engaged in some form of collaboration with the oversight body, although the latter may have the ability to conduct the investigation entirely on its own.
The independent model is embodied by a totally independent investigation. There is no police involvement in the investigation. The oversight body composed of civilians undertakes independent criminal investigations that cannot be referred to the police force, and may have the authority to make binding findings and lay charges. The following table illustrates the characteristics of each model.
| 1. Dependent Model |
2. Interdependent Model |
3. Independent Model |
1.1
Police
Investigating Police |
1.2
Police
Investigating Another Police Force |
2. 1
Civilian
Observation |
2. 2
Hybrid
Investigation |
3.
Independent
Investigation |
Represents police investigating police criminal investigations
- Police fully responsible for the investigation and administration of public complaints
- No civilian involvement in a criminal investigation
- Oversight body recognizes complaints regarding service, internal discipline or public trust
- Oversight body may be an appellate authority
|
Represents police investigating another police forceInvolves formal arrangements (memoranda of agreement) in place with another police force to handle investigation of police officers in cases of death or serious bodily harm.
- Unlegislated process
- In place only in select provinces in Canada
|
Introduces civilian observation to investigationCivilian observer responsible to monitor criminal investigation (not direct or oversee investigation)
- Regular reporting on status of investigation required
- Police responsible for investigation, adjudication and administration of public complaints
|
Oversight body may choose from various options which include:
a) may supervise/manage parts of police criminal investigation (beyond monitor/oversee) conducted by police
b) may assume control over police investigation
c) may undertake independent criminal investigation
- Oversight body can refer investigation to police force
- Police can be involved in some form of collaboration, cooperation or coordination of the actual investigation of public complaints with oversight body
|
Oversight body undertakes independent criminal investigation for cases within its mandate
- Police are excluded or removed from process of investigating public complaints
- Hallmark of this system is that civilian personnel are fully responsible for investigation
- Nil ability to refer investigation to police
|
It is important to note that each oversight body under analysis has its own particular characteristics that separate it from other similar agencies, even when those are the broad representation of the same model. In the same vein, each of the oversight entities carries its own features which may not be captured by one general definition. However, we have, for the purposes of this discussion, set out general parameters for comparison.
1.1 Police Investigating Police
The police investigating police sub-type is representative of an oversight agency that does not undertake criminal investigations. It remains essentially a model that exists alongside police forces responsible to undertake criminal investigations into cases involving other police officers.
This model may involve a civilian review body that investigates allegations of disciplinary misconduct (exemplified by Manitoba's Law Enforcement Review Agency) or an appellate authority with respect to public complaints about the policies, services or conduct of police officers without interlocutory powers of review (Ontario's Civilian Police Commission). It may be an agency that recognizes complaints limited to service or policy, internal discipline or public trust (such as Police Complaint Commissioner in British Columbia), or it may be an independent civilian body which administers the public complaints process (the newly established office of the Independent Police Review Director in Ontario). It could also be a body which examines potential violations of the code of ethics by police officers, special constables and highway controllers (represented by the oversight system in Quebec in the authority of the Police Ethics Commissioner and the Police Ethics Committee).
In any case, the agency is responsible for non-criminal complaints and in the case of potential criminal offences, it refers the file either to the appropriate police force or the office of the Attorney General for further decision.
The composition of the police investigating police model is varied, consisting of a mixture of civilians and former police officers. In the case of the Quebec Police Ethics Commissioner's investigative team, a specific provision mandates that should the investigators be former police officers, they cannot participate in a case involving their former police department.
Some of the perceived advantages of this dependent model sub-category include the tenet that police have the necessary investigative skills and access to appropriate resources (e.g. forensic support) for the task, in addition to the requisite legal authority and powers to complete investigations, particularly regarding Criminal Code issues. Further, others posit that police have a better understanding of the RCMP's operating organizational and cultural dynamics which can secure more legitimacy in the process in the eyes of members, thereby resulting in enhanced cooperation.
The challenges associated with the police investigating police model have been highlighted previously. To summarize, some argue that police do not take seriously most public complaints and assign limited investigative resources and expertise to the process.48 Police officers are deemed to be sympathetic and responsive to informal police cultural norms and perspectives which protect individual officers and undermine the investigative process. Police officers can be pressured by other police and the police culture ("blue wall" "blue curtain", "code of silence") to conduct ineffective investigations. At most salient, this model is deemed failing to meet the basic standards of public accountability.
Domestic examples of police investigating police
As shown in the previous section, examples of the police investigating police model reviewed are all Canadian-based, having been created by different provincial governments. Ontario is a unique case with two agencies within this category.
Quebec's police oversight system, composed of the Police Ethics Commissioner and the Police Ethics Committee, is chiefly concerned with the potential violations of the Code of Ethics pertaining to police officers, special constables and highway controllers. Of particular interest is the provision which mandates that only those who have been called to the bar for at least 10 years can be appointed as full-time members of the Committee.
The Ontario Civilian Commission on Police Services (OCCPS), soon to be renamed Ontario Civilian Police Commission upon the proclamation of Bill 103, the Independent Police Review Act, is a quasi-judicial agency and the final appellate authority with respect to public complaints made against all municipal police services in the province. The Commission has recently lost its interlocutory powers of review to the newly established office of the Independent Police Review Director (IPRD). The IPRD is also responsible for the initial screening of public complaints and may establish rules and guidelines for police chiefs and police boards for complaints made by the public.
The two remaining bodies exemplifying the dependent model, Manitoba's Law Enforcement Review Agency (LERA) and the office of the Police Complaint Commissioner (PCC) in British Columbia, are both witnessing legislative developments that may affect their respective powers and obligations. In Manitoba, the recently published Taman Inquiry report called for the establishment of a new independent unit responsible for all criminal investigations of Manitoba's police officers, and the current government pledged to abide by all 14 recommendations made in the report when it introduces changes to the Police Act in 2009.49
In the meantime, the LERA remains the sole independent police oversight agency in Manitoba, but it does not handle criminal investigations. Instead, the agency investigates such allegations as the abuse of authority, false statements and lack of restraint in the use of a firearm.
British Columbia's Public Complaint Commissioner (PCC) is an independent officer of the legislature whose role is to oversee the public complaints process involving municipal police officers in the province. The Commissioner can initiate investigations with Ordered Investigations based on information received from a member of the public or from a police department. In exceptional cases, the PCC may delegate the investigation to an external agency, including the RCMP in its capacity as the provincial police force. The Commissioner has been seeking legislative changes for several years, expressing the need for such additional features as compellability of police officers with respect to disciplinary proceedings.
In July 2005, the British Columbia Minister of Public Safety and Solicitor General ordered a review of the police complaints process in the province. B.C. Appeal Court Judge Josiah Wood, the appointed Director of the review, released the final report in February 2007. The report contained 91 recommendations to improve the system; stiffer penalties for officers guilty of misconduct were among many suggested venues for improvement. 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 provincial 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 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. There has been some criticism that the amendments fail to provide adequate civilian oversight since investigations into police misconduct remain largely in the hands of police officers. To that B.C. Solicitor General van Dongen replied that the creation of an entirely civilian investigator team is not practicable and implied that police investigators are sufficiently experienced for the task. The B.C. Solicitor General is confident that the province can strike a good balance of public and police involvement in the police complaints process.
A key feature of the new legislation calls for "[m]andatory external investigation of death and serious harm" (s. 89) and requires that the PCC be "immediately" notified by a chief constable when a person "suffers serious harm" or dies while in police custody or as a result of police actions (s. 89(1)a), as well as when the serious injury or death of a person could be seen as the result of the conduct of a municipal police department or police operations (s. 89 (1)b).
1.2 Police Investigating Another Police Force
The second sub-category of the dependent model involves outside police force investigation. In essence, it is still representative of "police investigating police," but in cases involving serious injury or death, police investigate another police force. Formal agreements or protocols such as memoranda of understanding between different policing bodies in some cases ensure that one police force is not in charge of investigations of incidents involving its own members.
In the Canadian context, formal agreements between some local police forces and the RCMP allow an outside police force to handle the investigations of RCMP members. Such mechanisms allow for a perception of independence and objectivity of the investigation and minimize the negative effects of internal loyalty and solidarity on the completion of a fair investigation. In addition, the external police invited to conduct the investigation possess all the required expertise and resources to investigate in an effective manner, as well as the necessary understanding of the organizational and cultural dynamics required for investigations.
However, the use of an external police force for member investigations remains highly discretionary and inconsistently applied across RCMP divisions. Having an external police force investigate the RCMP may provide only the appearance-but not the reality-of an independent investigation. Many seriously question the possibility of independence for external police investigations due to occupational and cultural police philosophies which can jeopardize the protection of the individual member thereby undermining the integrity of the investigation (e.g. "blue wall," "blue curtain" or "code of silence").
There is also little evidence that external police officers do actually obtain higher levels of police cooperation from other police in complaint investigations to justify their involvement, and without public oversight external investigations of this nature often produce similar findings to an internal investigation and result in a low level of substantiated complaints.
Domestic examples of police investigating another police force
This model is typically an unlegislated process and is currently present in a select few provinces. Memoranda of agreement exist between the RCMP division and the local police service(s). The three examples of this model are: the Memorandum of Agreement between the RCMP Nova Scotia (H) Division and the Halifax Regional Police (HRP), the Memorandum of Agreement between the RCMP Newfoundland and Labrador (B) Division and the Royal Newfoundland Constabulary, and the Memorandum of Agreement between the RCMP New Brunswick (J) Division and the police services of New Brunswick.
In Nova Scotia, the July 2003 agreement set up the Integrated Critical Investigation Team (ICIT), comprised of officers from both the RCMP and the Halifax Regional Police. The purpose of the ICIT is to investigate critical incidents or any other incident designated by the Chief of HRP or the Commanding Officer of H Division. Article 4 of the agreement stipulates that the officer in charge of the investigation and the primary investigator be a member of an independent agency (the agency without officers involved in the incident in question). The ICIT team was most recently deployed in a member-involved shooting in Yarmouth and a Taser death in Digby.
The Memorandum of Agreement in Newfoundland and Labrador is identical to the mechanism in place in Nova Scotia.
In New Brunswick, an agreement exists between the RCMP J Division and the Bathurst City Police Force, the Beresford Nigadoo Petit-Rocher Regional Police Force, the Edmundston Police Force, the Fredericton Police Force, the Miramachi Police Force, the Rothesay Regional Police Force, the Saint John Police Force, and the Woodstock Police Force. It creates the Use of Force Investigation Team (UFIT), which investigates the critical incident, led by an officer in charge and a primary investigator, both members of the independent agency. The UFIT has been in operation for about five years.
2.1 Civilian Observation
The first sub-category of the interdependent model combines the police investigation with the input of an independent civilian observer who monitors the impartiality of the investigation. This model allows for engaged civilian oversight and direct influence in the investigative process.
One advantage of this model is that it offers a civilian, non-police influence, thereby enhancing public accountability and transparency to an otherwise internal police-centric public complaints process. Civilian observation provides an opportunity to monitor the adequacy and effectiveness of police complaint investigations. Civilian observation of police investigating police provides a level of transparency and public information to an otherwise internal and closed process.
A potential disadvantage is that civilian observers cannot conduct their own investigations and are therefore entirely dependent upon police investigations of police officers in the first instance. Concern also exists as to which part of the criminal investigation the observer should be privy to, as the observer's presence then allows for compellability in court. Also, civilian observation of police investigations may be viewed as illegitimate, unqualified and inappropriate by some police officers and associations.
In addition, civilian observation is viewed as costly, ineffective and time-consuming; poor value for money; and despite civilian involvement in the review of police investigations some critics argue that it has not created an increase in sustained complaints and publicly satisfactory outcomes.
Domestic examples of civilian observation
After the Canadian public expressed concerns regarding the issue of transparency and accountability in relation to RCMP investigations of their own members in cases of serious injury or death, the CPC decided to contribute to the enhancement of public confidence by assessing the impartiality of RCMP investigations in an objective and timely manner. On March 21, 2007, it established the Independent Observer Pilot Project in British Columbia (E) Division.
Today a fully developed program, the Independent Observer Program (IOP) offers timely observations regarding the impartiality of RCMP investigations of its own members in cases involving serious injury or death, and in cases that are viewed as sensitive or high profile in nature. The impartiality of the investigation is assessed against four criteria: line management, appropriate level of response, timeliness of the response, and conduct. In order to qualify as an Observer, the candidate needs extensive legal training (or education in criminology or policing), experience in the area of public complaints against police officers, and experience in police investigations.
Between March 2007 and June 2008, the IOP was involved in six E Division investigations. A one-year review of the IOP by the CPC and RCMP, via an independent contractor, determined that the program was effectively fulfilling its mandate and recommended the possibility of establishing the Observer Program in other RCMP divisions "on a pilot project basis."49
On December 4, 2008, it was announced that an Independent Observer was to be deployed outside British Columbia for the first time. At the request of Yukon's M Division, the program was introduced to the RCMP investigation into the in-custody death of an individual in Whitehorse, Yukon. As of January 2009, an observer had been deployed a total of 10 times and found no concerns with RCMP impartiality.
The IOP is not part of the RCMP legislative framework. One of the Independent Observers admitted that becoming part of the legislation is a desirable feature that would enhance his powers. This would give the Observer the authority, strength and credibility it needs.51
2.2 Hybrid Investigation
The second sub-type of the interdependent model is a hybrid investigation. This model involves active participation of civilians in the investigative process in the form of collaboration with the police force, management of the police investigation, or, in exceptional circumstances, the ability to assume control of the investigation.
In most cases, therefore, the hybrid model assumes some form of engagement between the oversight agency and the police force. The latter is still involved in the investigation but it is obliged to report to, follow, and cooperate with, the oversight body. In exceptional cases, the police may even reassign its authority over the investigation to an outside agency whose role goes far beyond that of an overseer.
One example of this model is the Alberta Serious Incident Response Team (ASIRT), an agency that was created to be deployed in events involving serious injury or death (and other sensitive or serious matters). The ASIRT, therefore, embodies this model given its blend of civilians and seconded police officers who work together on investigations.
The hybrid sub-category, however, also allows for the possibility that the oversight body conduct an investigation on its own. Saskatchewan's Public Complaints Commission (PCC) has the ability to assume the responsibility of the police investigation at any point it feels necessary to do so and in that instance the police service must desist from its investigation and provide all required assistance to the members of the PCC. The Independent Police Complaints Commission (IPCC) from the United Kingdom can supervise an investigation conducted by the police, but it can also manage the investigation or undertake one independently, the outcome of which is not subject to appeal. In exceptional cases, South Australia's Police Complaints Authority (PCA) may decide to conduct an investigation on its own and recently, the PCA Chair has in fact investigated one case to avoid giving rise to the appearance of bias.
In most cases, however, such occurrences are an exception to the rule. Agencies that represent the hybrid model rely largely on the investigative expertise of the police service and use it as groundwork for the proceedings. The United Kingdom's IPCC admits that often it uses a police forensic investigator to secure the scene of the incident. The Independent Police Conduct Authority (IPCA) from New Zealand can oversee a police investigation and may give directions to the police in that respect. It cannot remove the investigation from the police control, but it can carry out its own separate investigation. The IPCA investigators, thus, largely use the work done by the police as the foundation upon which to develop their own further investigation. In the case of South Australia, most investigations are conducted by the internal investigation unit of its police service and the role of the PCA revolves around monitoring and inspection functions.
The composition of bodies representing the hybrid sub-category varies depending on their nature and mandate. The Alberta Serious Incident Response Team exemplifies a mix of civilians and seconded provincial as well as RCMP police officers. The remaining four bodies, Saskatchewan's Public Complaints Commission, UK's IPCC, South Australia's PCA and New Zealand's IPCA, are composed of civilians and retired/former police officers from the local police force, the federal police force, or abroad. In the case of the United Kingdom's Independent Police Complaints Commission, legislation mandates that none of its 15 Commissioners have worked for the police service, Her Majesty's Revenue and Customs (HMRC) or the Serious Organised Crime Agency (SOCA) in any capacity.
An obvious advantage of a hybrid investigation model is that it combines the expertise and capabilities of policing with civilian independence and objectivity. Seconded police officers retain essential police powers for the conduct of criminal investigations which civilian counterparts do not normally possess. Seconded or retired police officers also bring an understanding of the police organization and culture, which may produce a more cooperative investigative environment. In addition, seconded or retired officers could have specialized investigative skills and aptitudes that civilian investigators may not possess. Overall, a synergy between the different skills and experience of civilian and police investigators enhance the complaints investigation process.
The Director of the Alberta Serious Incident Response Team pointed out that "it's really important to strike a balance between investigative expertise and independence. A truly integrative unit reporting to a civilian ensures independence."52 The integrated approach of ASIRT gives it "immense strength."53 The Police Ombudsman for Northern Ireland expressed similar sentiment: "If you build a mix of seconded and retired police officers as well as civilians, you will build a body that is competent, professional, fair and accountable."54
Furthermore, the hybrid model can be seen as cost-effective and time-efficient. By using seconded or former police officers alongside civilian employees saves the time it would take to properly train civilian investigators who lack field experience. Saskatchewan's PCC Director admits that investigative expertise is crucial: "There is a point to be made that a good investigator has to have good knowledge of what he investigates."55 The Police Ombudsman for Northern Ireland emphasizes: "To investigate properly, we have to be just as good if not better [than police officers involved] and it takes a great deal of sophistication and time to properly train investigators."56
Finally, the hybrid investigation model effectively allows the police to take an active part in the oversight process. By introducing police officers into the mechanism of police oversight and review, it increases the chance that the findings from the investigation are heard and recommendations followed. The Chair of the South Australian Police Complaints Authority points out that the key advantage of the hybrid model is that it "creates a system in which the police are very much part of the solution to whatever problems they may have."57 According to the PCA Chair, this is essential to the success of good policing: "If you want your jurisdiction to have a good police force, the force has to be a part of the solution."58
A potential disadvantage of this model is that the introduction of police culture and police values through the ongoing involvement of retired or seconded police may inhibit the development of a new civilian organizational culture. This risks jeopardizing the process and it may also be difficult to either second or attract experienced senior police investigators to an integrated model in which they do not have authority or control.
Domestic examples of Hybrid investigation
In Canada, two agencies are representative of the hybrid investigation model: the Alberta Serious Incident Response Team (ASIRT) and Saskatchewan's Public Complaints Commission (PCC).
ASIRT is the only hybrid example that has the authority to lay charges. The Director of ASIRT has all the powers of a police chief as defined by Alberta's Police Act. The agency's mandate is focused on incidents of serious injury or death, as well as other matters considered serious or sensitive in nature that resulted or may have resulted from the actions of a police officer. In operation since the spring of 2007, ASIRT is relatively new and in late November 2008 the body officially completed its first investigation. On January 6, 2009, ASIRT laid criminal charges for the first time when an RCMP officer was charged with sexual assault.
The Public Complaints Commission in Saskatchewan was established to increase public confidence in the accountability of the police and to improve the relationship between the province's Aboriginal population and the police. The 2005 amendments incorporated into the guiding legislation included a provision that outlined the composition of the PCC-in order to be truly representative of Saskatchewan's population. From this point on, one of the members of the board has to be a person of First Nations ancestry, one has to be of Métis origin, and one has to be a lawyer. The PCC has jurisdiction over all municipal police officers in the province (excluding RCMP members). The PCC has the authority to conduct investigations on its own, to monitor police investigations, or to refer investigations to the affected police force or to another police force.
Subsection 91.1(1) of the Act dictates that in cases of serious injury or death, the RCMP providing policing services within a municipality must request that the Deputy Minister of Justice appoint an observer "from another police service or detachment of the RCMP" to oversee the investigation. This observer shall be given "full access" to the investigation and report on all aspects of the investigation..
International examples of Hybrid Investigation
In the United Kingdom, the Independent Police Complaints Commission (IPCC) has undergone numerous legislative changes since the creation of the original Police Complaints Board. On April 1, 2004, the IPCC replaced the Police Complaint Authority following the release of The Stephen Lawrence Inquiry, 1999 report which reignited the debate about racism and policing in the United Kingdom.59 Initially given jurisdiction over the police in England and Wales, in April 2006 the IPCC acquired authority over the Serious Organised Crime Agency (SOCA) and Her Majesty's Revenue and Customs (HMRC), and since February 2008 it has been given jurisdiction over the UK Border Agency (UKBA). In addition to complaints, certain incidents such as serious injury resulting from contact with the police, HMRC, SOCA or UKBA, must be reported to the IPCC. The IPCC's broad mandate is supported by the fact that its budget exceeds £34 million, making its funding base many times higher than the funding provided to other oversight bodies in the Commonwealth with a similar mandate. Interestingly, the IPCC has the authority to audit police policies and practices, but its staff is not likely to conduct these in reality, due primarily to resource constraints.
Unlike the circumstances surrounding the creation of some oversight bodies, the South Australian Police Complaints Authority was not established in response to public pressures and discontent. Rather, it was prompted by a wave of oversight agencies being created in other Australian regions, and the general consensus that such oversight was desirable. The PCA follows a model of "external monitoring of internal investigation" which delegates the primary investigation of complaints to the South Australian Police (SAPOL) Internal Investigation Branch (IIB). In exceptional circumstances, however, the PCA may conduct primary investigations of complaints and it may investigate the officers of the IIB. The Chair of the PCA admits to enjoying a good working relationship with SAPOL.60 The two agencies have a memorandum of understanding pursuant to which SAPOL notifies the PCA of any case where a fatality occurs in the course of a police operation.
In terms of New Zealand, a memorandum of understanding exists between the Independent Police Conduct Authority (IPCA) and the police service which stipulates that matters of serious misconduct or neglect of duty reported internally within the police be notified to the IPCA. In addition, a protocol of cooperation between the IPCA Chair and the Commissioner of Police ensures collaboration between the investigators of the two agencies. Similar to Canada's Alberta Serious Incident Response Team, New Zealand's IPCA does not have the authority to initiate investigations on its own into sensitive cases not subject to complaints or referral. This is one of the features mentioned in the Amendment Bill proposed by the IPCA which was approved in draft form and that is currently awaiting formalization by New Zealand's recently elected government.
The independent model consists of an investigation where the civilians are in charge of the investigation and police officers have no formal input of influence over the process involving their colleagues.
The key feature that differentiates independent investigation from the interdependent model is that there is no investigative collaboration between the oversight body and the police. For all cases that fall within its mandate, the oversight body investigates alone and does not refer the investigation back to the police force.
When asked whether his agency has the authority to conduct joint investigations with the police, the Executive Officer of Ontario's Special Investigations Unit (SIU) replied "No, we conduct 'parallel' investigations."61 The police service and the oversight body may cross the same paths during the fulfillment of their mandate but not as a result of simultaneously conducting the same investigation. The Chief Administrator of Chicago's Independent Police Review Authority (IPRA) was hard-pressed to find an example of a "parallel" investigation possibly taking place between IPRA and the Chicago Police Department.62 The Police Ombudsman for Northern Ireland was adamant that his office does not conduct investigations in collaboration with the police: "We conduct our own investigations."63
An oversight body representing the independent investigation model is an agency composed of civilians who are fully responsible for the investigation. It may have the authority to lay charges, which is the case for Ontario's Special Investigations Unit (SIU) and the Police Ombudsman for Northern Ireland. It may offer recommendations that are extremely hard to refuse on the part of the police commissioner, which is the case with Chicago's IPRA.
Members that form the body which represent the independent model may be retired police officers who no longer possess their original police powers, police officers not active on behalf of the police under the agency's jurisdiction, or civilians with no prior police experience. The staff comprising the office of the Police Ombudsman for Northern Ireland, for instance, includes several police officers seconded from police services other than the service of Northern Ireland.
One of UK's IPCC Commissioners points out that the required investigative expertise need not be obtained solely from experience as a police officer. It is possible to have good investigators with no police experience, and there are some civilian investigators who are "exceptional" in their skills: "You do not need in itself to have a former police officer-what you have to be is qualified and experienced."64 Moreover, retired police officers are not necessarily the ideal source of investigative skills-their skills may become outdated. The Police Ombudsman for Northern Ireland believes that the ideal combines seconded and retired police officers in addition to civilians.65
The key advantage of this model is that by removing control of the criminal investigation from the police influence, the oversight body appears totally independent and objective. A more accountable and transparent culture informs the investigative process and the complainant may perceive it as more trustworthy and therefore may cooperate more freely with the investigators. In some circumstances the independence of the civilian investigative process would provide police with a stronger public validation of their position.
A possible disadvantage of this model is that a lack of police legitimacy may diminish police cooperation and participation which may ultimately lead to unsuccessful and/or failed investigations. A civilian-only investigative/adjudication process may be perceived by most police as being inadequate and unsympathetic to police concerns and their operational realities. Should the oversight body be staffed by civilians with no police experience, it may be criticized as lacking knowledge and understanding of police organization and culture required to conduct fair and effective investigations.
Disappointed by unsuccessful and failed investigations, members of the public will lose confidence in the fully independent civilian review model. Many argue that this is the most expensive model, as it requires additional resources to ensure professional investigations (e.g. forensic services). It may involve higher training costs for skill development, enhancement and ongoing education. Civilian models require special legal and investigative powers in order to deal adequately with serious investigations. This model may be perceived as undermining the authority and responsibility of police management with regard to a spectrum of operational and administrative processes.
Domestic examples of the independent model
Ontario's Special Investigations Unit (SIU) is the Canadian example of the model of independent investigation. Created in 1990, the SIU investigates the circumstances of serious injury or death as well as allegations of sexual assault that may have resulted from criminal offences committed by police officers. The agency has full powers to investigate and charge officers with a criminal offence. The SIU has recently undergone some criticism from the Ontario Ombudsman who in September 2008 released a report on the SIU entitled Oversight Unseen. The Ombudsman noted, however, some positive features such as no evidence of biased investigations and the strong commitment of SIU staff.
International examples of the independent model
Within the international context, the municipal Independent Police Review Authority (IPRA) for the city of Chicago embodies the independent investigation model, whereas the Police Ombudsman for Northern Ireland exemplifies the model in Europe.
IPRA was created in September 2007. The Office of Professional Standards (OPS) became separated from the Chicago Police Department (CPD) and IPRA replaced the OPS as an independent department of the City of Chicago. In the case of IPRA, all complaints are logged automatically and are therefore on record. IPRA retains those which pertain to its mandate.
IPRA investigates complaints made against all CPD officers in cases of domestic violence, excessive force, coercion and verbal abuse based on bias. In addition, IPRA automatically investigates all cases where a firearm or taser was discharged in a manner that could potentially strike an individual regardless of whether there is any alleged misconduct, as well as all "extraordinary occurrences" (any death or injury to a person while in police custody, any suicide or attempted suicide).
The office of the Police Ombudsman for Northern Ireland, established in 2000, was part of several developments in the area of policing that occurred following the Belfast Agreement. It has jurisdiction over police officers of Belfast Harbour, Larne Harbour, Belfast International Airports and the Ministry of Defence, as well as the Serious Organized Crime Agency and is expected to be extended shortly to the UK Border Agency. The Police Ombudsman has several options upon the completion of the investigation: he/she may recommend prosecution, disciplinary proceedings, compensation, or reject the complaint altogether. In 2007-2008, 11 cases involving 12 police officers were prosecuted.
Conclusion
In summary, this chapter reviewed the police oversight and review bodies in practice in Canada and for some countries with common law rooted in the British tradition. Three types of models were identified based on the level of civilian involvement in the investigation and respective oversight powers.66
The dependent model comprises two sub-types: police investigating police and police investigating another police force. This model involves agencies that essentially do not get involved in a criminal investigation and the police service conducts the investigation of its own officers or members of another police service.
The interdependent model, present in British Columbia, Saskatchewan, Alberta, Yukon, New Zealand, United Kingdom and South Australia, introduces civilian involvement into the police criminal investigation. The first sub-category of this model refers to a civilian observer who monitors the police investigation for impartiality. Hybrid investigation, the other embodiment of interdependence, is represented by an agency whose civilian personnel is active in the investigation and may conduct investigations in collaboration with the police, or undertake them entirely on its own. This model is representative of a combination of police investigative experience and civilian independence.
The independent model involves civilians or police officers without any ties to the police service under their jurisdiction. In the model of independent investigation, the oversight body does not refer the investigation to the police force for any case falling within its mandate. The police service under investigation has no influence over the investigation of its officers. Ontario's SIU, IPRA in Chicago and the Police Ombudsman for Northern Ireland are representative of this model. The key advantage of an independent oversight body is that it offers an appearance of total independence and objectivity.
For Canada, there is no one model that can simply be imported in its current form and expected to function effectively without taking into account particular characteristics of our country. The size of the territory and sheer vastness of the country, coupled with budget constraints, needs to be considered before advocating a duplication of the independent investigation model from a much smaller Northern Ireland, or the interdependent hybrid model from the costly Independent Police Complaints Commission (UK). Some valuable lessons can be learned, however, from our counterparts.
45 Interview with Police Ombudsman for Northern Ireland, October 30, 2008.
46 Statistical analysis includes such items as the total number of investigations conducted, the total number of complaints received, the number of investigations and/or complaints disposed of, the number of cases where the complaints were withdrawn, number of cases where charges were laid, etc., in the most recent fiscal year that was provided by the oversight agency in question.
47 The description of each model and its advantages and disadvantages, as well as the highlights of the analytical findings can be found in Appendix 8.
48 KPMG, Feasibility of an independent system for investigating complaints against the police (London: Home Office, Research, Development and Statistics Directorate, 2000). A study was commissioned by the British Home Office in response to the Stephen Lawrence Inquiry, 1999. KPMG sought to strike a balance between improved independence of the complaints process and the cost and efficiency. The final report recommended the establishment of a new body in Great Britain, the Independent Agency for Complaints against the Police, which would investigate certain categories of complaints, while the majority of investigations would be conducted by the police.
49 A new Police Services Act was anticipated to be introduced in Manitoba's legislature in 2009 but had not been at the time of the drafting of this Interim Report.
50 Scott Clark Consulting Inc., Review of the Independent Observer Pilot Project, June 2008.
51 Interview with a CPC Independent Observer (British Columbia), November 4, 2008.
52 Interview with Director of ASIRT, October 27, 2008.
53 Ibid.
54 Interview with Police Ombudsman for Northern Ireland.
55 Interview with Director of Public Complaints Commission (Sask.), October 30, 2008.
56 Interview with Police Ombudsman for Northern Ireland.
57 Interview with Chair of Police Complaints Authority (S. Australia), October 29, 2008.
58 Ibid.
59 In 1985, the Police Complaints Authority replaced the Police Complaints Board in response to Lord Scarman's report on the 1981 Brixton Disturbances, which involved three days of rioting following an arrest of a black man. Lord Scarman's report revealed the problematic state of police/community relations, led by a widespread belief that police targeted civilians based on racial prejudice. The Stephen Lawrence Inquiry, 1999 analyzed the police investigation of a 1993 murder of a young black man and reignited the debate on policing and racism.
60 Interview with Chair of Police Complaints Authority (S. Australia).
61 Interview with Executive Officer of Special Investigations Unit (SIU), October 28, 2008.
62 Interview with Chief Administrator of Independent Police Review Authority (Chicago), November 5, 2008. The Chief Administrator emphasized that it is possible in very limited and specific situations; for instance, if the police "happened" to be investigating the same police officer IPRA investigated for another offence.
63 Interview with Police Ombudsman for Northern Ireland.
64 Interview with Commissioner of Independent Police Complaints Commission (UK), November 6, 2008.
65 Interview with Police Ombudsman for Northern Ireland.
66 Appendix 9 contains the chart representing the different models and their respective oversight bodies.