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“Civilian” oversight bodies investigating police are packed with cops

Most oversight agencies in Canada investigating police who kill or seriously injure people have active-duty or former cops making up at least half the team

by Sara Birrell

Montreal police. Photo: David Gray-Donald
Montreal police. Photo: David Gray-Donald

To some, civilian oversight entities are a unifying force that protect both the public and the police, offering succour in the form of “accountability” and “transparency” when a cop kills or seriously injures someone.

The National Association for Civilian Oversight of Law Enforcement (NACOLE), the non-profit body that supports civilian overseers in the United States, says on their website that civilian oversight entities “benefit not only the individual complainant, but also the larger community, police and sheriff’s departments, and even elected or appointed officials.” Their Canadian counterpart, CACOLE, pushes a similar line, and all but three provinces have civilian oversight committees.

The Canadian Civil Liberties Association says that the major argument in favour of the entities is “ensuring confidence in the police.”

But do they work? And do they even truly provide “civilian" oversight?

 

What is civilian oversight?

Before diving deeper into the powers and limitations of oversight entities, it’s important to have an understanding of what’s actually meant by “civilian oversight.” It does not mean conduct agencies like the Saskatchewan Public Complaints Commission, a government-appointed panel that looks into complaints about municipal officer “misconduct” – usually around misbehaviour, attitude, and execution of duties. It does not mean the RCMP’s Civilian Review and Complaints Commission, which does the same thing. Nor does it refer to police boards like the Saskatchewan Police Commission, which performs such duties as policy compliance and operational audits of police services, training oversight, and trend monitoring.

Civilian oversight bodies are independent of the police and investigate incidents beyond bad conduct, like police-involved deaths and serious injuries, meaning when police kill or seriously injure people. The director of a such an entity is, by law, someone who has never worked in law enforcement but has a deep understanding of the legal system, such as a former Crown prosecutor.

Investigations of these incidents can drag on for years, and because of privacy laws, it often means that reporters and the public can’t get information about what transpired because the investigation is ongoing.

In Ontario and Manitoba, privacy laws also ensure that no oversight entity releases the names of cops involved in serious incidents who are found not to have acted criminally, so there’s no way that the public can know if some officers are turning up in serious incidents over and over again.

 

Cops end up dominating civilian oversight bodies

Most people who support civilian oversight bodies do so because they understand that if police investigate their own colleagues, they have an incentive to let them off easy – to protect their own and preserve the public’s trust in the police force.

But civilian oversight committees aren’t solely made up of civilians. In almost every oversight agency in the country, at least half of investigators are former or active-duty cops.

In Quebec, the Bureau des enquêtes indépendantes has legislation that encourages the investigative team to try for parity – half law enforcement and half civilians – but doesn’t require it. In Nova Scotia’s Serious Incident Response Team (NS SiRT), two investigators are civilians with a career’s worth of experience working for the RCMP, and two are active-duty police officers who have been seconded. In this context, secondment is when the civilian director appoints an active-duty cop to the team. The officer is then temporarily “released from their current duties [and is] under the sole jurisdiction and direction of the civilian director,” according to Zane Tessler, the civilian director of Manitoba’s Independent Investigation Unit (IIU). Seconded officers remain members of their own services and police associations during their tenure with the oversight entity.

While the British Columbia Independent Investigations Office (IIOBC) prohibits former RCMP officers and serving B.C. police officers from being investigators, there is no such prohibition on former police officers as long as they aren’t from within the province. Until June of this 2019, B.C. cops had to have been out of the service for five years before they could become IIOBC investigators – but this rule was suspended for two years.

In Manitoba, six of the eight investigators on the IIU are retired law enforcement.

According to Tessler, the Alberta Serious Incident Response Team (ASIRT) – which does not post the breakdown of their investigative unit on their website – does have the jurisdiction to second active-duty service members, as do Manitoba and Nova Scotia. Tessler, who was very forthcoming about the makeup of his investigative team in Manitoba, says “Alberta has had a greater experience of active members” in their oversight unit. Ontario’s Special Investigations Unit (SIU) – the oldest oversight entity in Canada – says that just three of their 14 lead investigators have been police officers. But when you broaden that lens to include their 42 “as-needed” investigators, 35 have worked for a police service

That means that between Ontario, Nova Scotia, and Manitoba alone, 46 of all “civilian investigators” are not entering the aftermath of a serious incident involving police as ordinary civilians at all, but as individuals with a career’s worth of experience as police officers. Some of them may have worked alongside the very people they are investigating or even been involved in similar serious incidents themselves. Hidden in plain sight behind the words “independent” and “civilian” are dozens of investigators inculcated in the very police culture their work is supposed to oversee.

Ron MacDonald, a former Crown prosecutor, current president of CACOLE, and chief civilian officer of IIOBC, admits that his investigative team functions as, and is made up partly of, police. “We’re little police agencies,” MacDonald says. “Made up of some former police and some non-former police. When the call comes in, we respond just like a police agency would to investigate the incident that has occurred – be it a shooting, be it a pursuit where there has been a car accident, or an arrest where someone’s taken to the ground and they break their leg or their shoulder. We investigate those independently of the police.”

Just a few kilometres away from the Surrey offices of the IIOBC, at Kwantlen, Shantz flatly dismisses the notion of independence. “None of them, not even the best of them, are in any way independent,” he asserts. “They’re still dependent on the cops.” In fact, “I don’t like to think of them as an oversight body,” he says. “They don’t really provide any oversight. They don’t provide any accountability.”

 

Building the appearance of accountability to maintain public faith in the police

The primary goal of these entities, which Shantz refers to as “documentation bodies,” is not to determine whether it is just or fair for a police officer to have hurt or killed someone, or even to reduce the number of serious incidents involving police and the public, but to “increase the public’s faith in the police” when people are injured or killed by them, a point that MacDonald made repeatedly.

In fact, according to a CBC investigative report, “Deadly force,” the number of people killed by police in Canada has increased between 2000 and 2017. And the trend continues. Meanwhile, most of Canada’s civilian oversight bodies were formed in 2012 and 2013.

As police forces across the country make moves to improve their public perception, they’re also killing more members of the public than before.

Oversight bodies don’t even necessarily lead to an increase in the number of police officers who are charged with wrongdoing when they kill or seriously injure members of the public. Ontario’s SIU – which Shantz says is “held up as a kind of ‘gold standard’” of oversight – closed 416 cases in 2018 and only 15 of them saw charges laid. In some provinces, like Ontario and B.C., even when an oversight body believes that an officer’s actions were criminal, they have no authority or special standing before the courts, and no disciplinary powers of their own.

Their investigations are often seriously flawed because police agencies delay reporting the incidents, like in the case of the alleged beating of 19-year-old Dafonte Miller by an off-duty cop, Michael Theriault, and his brother. The SIU wasn’t notified of the incident for months, and only then by Miller’s lawyer, something that former SIU director Ian Scott said will “erode the integrity of the investigation.”

In Manitoba, a 2018 investigation by the Winnipeg Free Press uncovered emails between the Manitoba IIU and the Winnipeg Police Service (WPS) in which Tessler expressed concern that there were “internal criminal investigations of WPS” that were not being sent to the IIU at all. The IIU director also found that in at least one incident, officers had discussed their notes at the scene, and in another, a cadet read the notes of another officer and then lied to the IIU, describing events they could not have seen because they had already gone home.

In no province do oversight agencies have the power to compel police chiefs to follow their recommendations, nor do they have power to convict when police services disregard the law.

In other cases, according to a former SIU director, their recommendations are simply ignored by the force being investigated. “There is no mechanism for holding police accountable,” Shantz argues.

While the directors of some oversight entities, like NS SiRT and the IIU, have the authority to lay criminal charges, others, like B.C.’s IIO and Quebec’s Bureau des enquêtes indépendantes, have no charging authority, meaning they make the recommendation to the police service whose officer is being investigated, and that service has the ultimate authority on whether or not to lay charges. Former SIU director André Marin told the Toronto Star in 2017 that complaints and regulations were “continually and regularly ignored by police services with impunity,” adding that “there is no consequence attached to police thumbing their nose at the SIU and the law.”

In Alberta, Manitoba, Ontario, and Nova Scotia, officers who are the focus of an investigation following a serious incident are not even compelled by law to turn over their notes from the incident to the oversight investigators – granting them the same rights as civilians under the Charter of Rights and Freedoms to protection from self-incrimination – even though police notes are critical pieces of evidence in an investigation.

In Quebec, subject officers are required to submit a written statement to the Bureau des enquêtes indépendantes (Office of Independent Investigations) before consulting with a lawyer or other officers involved in the incident, a law that the Montreal Police Brotherhood and the Fédération des policiers et policières municipaux du Québec (Federation of Quebec Municipal Police) have challenged in the Quebec Superior Court.

 

Codependence of police and state

Shantz says the very nature of the legal system, in which “the state protects the state” means that even when oversight entities do find grounds to believe a criminal offence was committed, “it’s the Crown, [which] works with the police and relies on the police for other investigations they’re working on,” that has the final say whether or not to bring charges.

“Police aren’t a public service. They’re a state function,” Shantz emphasizes. And misunderstanding that distinction means fundamentally misunderstanding oversight entities and the accountability they claim to provide. “Accountability for the police isn’t, ‘are you harming the community?’” Shantz says. “It’s ‘are you maintaining the structures you’re supposed to maintain?’”

Still, Shantz says oversight entities are “not completely useless. They do provide a sort of documentation body.” And he says that in Canada, that’s a function that desperately needs to be fulfilled. “There’s no real, formal mechanism for documenting police violence in our society. It’s not being done on a systematic basis anywhere. It’s been left to community members, family members, people who have lost a loved one, and critical criminologists and some journalists to piece those things together.”

At the moment, the most comprehensive public log of police killings of members of the public is the CBC’s “Deadly force” investigation, with profiles of the 461 cases where someone has died in an encounter with the police between 2000 and 2017. And the most up-to-date public database is a WordPress blog called killercopscanada. “With a body like the SIU or the IIO[BC], at the very least you do have some documentation,” Shantz says. “You still have to read their reports with a critical eye, but at least it’s something.”

Oversight entities will not remedy the harms that the police inflict on our communities, nor will they solve the systemic issues that we have come to depend on the police to respond to. “Police have become the primary response to social problems,” Shantz says. This means that without strengthened social supports, the situations that most frequently lead to serious incidents with the police – those involving people dealing with mental health and drug use crises – will continue to rise, no matter how much “transparency” and “accountability” is promised to us by the powers that be.

“Apart from changing the political and economic structure that police were developed to maintain,” says Shantz, there is no cure for the violence that law enforcement inflicts on our communities.

“Policing is policing. The state protects the state.”

 

Sara Birrell is a writer and student from southern Saskatchewan.

This is a condensed and edited version of an article published in Briarpatch's Sask Dispatch paper on October 30, 2019, titled "Does Saskatchewan need a citizen watchdog for the police?"


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