February 27, 2012

Bill 46 - An Act respecting independent police investigations


Mister Chair,

Mister Minister,

Ladies, Gentlemen, Members of the Committee,

When Bill 46 was tabled, the Minister of Public Security, when referring to the proposed establishment of the Bureau civil de surveillance des investigations indépendantes—a civilian oversight bureau to oversee independent investigations—stated, “Given the particular nature of events that trigger investigations and in order to maintain public trust in those investigations, the Bureau will act independently, like the eyes of the public, to strengthen the legitimacy of the process” [translation].

The bill’s objectives are clear: to ensure public trust and improve the credibility of investigations involving police officers. Mister Chair, the Québec Ombudsman is committed to these goals.
In our 2010 examination of the departmental policy in force, we noticed there was a lack of credibility. We saw that a recommendation for major changes to the existing process was necessary for the process to become credible, transparent and impartial—which would be, and I stress, as much for the interest of the general public as for the interest of the police officers directly involved in the incidents. The work of police officers is demanding and often carried out under difficult conditions. Unfortunately, incidents will occur in which the necessary use of force during a police intervention will result in injury or death. In such cases, police officers would be the first to benefit from an investigative system that not only respects their rights but builds public trust—a system in which the independence and findings of investigations would not be systematically called into question by different parties. Recent events have shown us there is still work to be done before our objective is reached.

As a result, proposed reforms to the investigative system for incidents involving police officers were announced. However, an examination of the bill has shown a very large difference between the announced reforms and the bill’s provisions, which, in the end, introduce very few changes.

Mister Chair, it takes more than a qualification for something to change. By calling the investigations to be conducted “independent,” without making substantial changes to the procedure in force, the bill perpetuates the status quo that is behind the entire problem. Police officers will continue investigating other police officers. Paul Kennedy, a recognized expert in the field and former chair of the Commission for Public Complaints Against the RCMP, considers such models “dependent,” since investigations under these models do not offer the guarantees of impartiality and transparency needed to be considered otherwise. At the very least, qualified civilian investigators should be involved, which I recommend.
In addition, the bill does not address the roles or obligations of the officers of the police force involved in the occurrence. These obligations will likely be addressed in an upcoming directive, but a stronger legal and regulatory framework outlining the investigations’ key steps should be ensured. For example, the framework should prohibit police officers who are involved or who are witnesses from speaking to each other. Other jurisdictions, including Alberta and Ontario, have included these practices in a regulation. A recent judgment by the Ontario Court of Appeal has also indicated the importance of such regulatory provisions in guaranteeing impartial investigations. 

Certain facts are worth recalling. Police officers provide a specific government service when conducting criminal investigations. As “servants of the law,” as they are called by the Supreme Court of Canada, they remain under the authority of the laws and regulations that govern their position. However, the simple directive of the proposed framework, rather than guaranteeing truly independent police investigations, may open the door to variations in the framework’s application. As such, I strongly suggest that the main roles and obligations of each intervener be specified in a regulation to ensure greater uniformity and stability in the framework’s practical application.

I would like now to address the role of the oversight organization provided for in Bill 46. In his statement when the bill was tabled, the Minister presented the civilian oversight bureau for so-called “independent” investigations as being the “eyes of the public.” This is a strong claim, and for the Bureau to properly fulfill its basic role, it must have the required means of action.

Is this the case? Our analysis of the bill has led us to conclude that the role of the civilian observer will in fact be very limited. In their oversight mandate, observers must limit their contact to a single party from the police force conducting the investigation. That party, it should be noted, will not himself or herself be involved in the investigation. In the absence of specific powers, such as those provided for in the Act respecting public inquiry commissions, civilian observers are severely limited in their ability to collect complementary information from other sources, though this is a vital step in ensuring thorough oversight of an investigation. With that said, I will cite the future section 289.18 of the Police Act, as it will appear should Bill 46 be adopted without modification:   

In the course of the oversight of an independent investigation, an observer may not have any direct or indirect contact with a member of the police force conducting the investigation, other than the representative of that police force, or with a member of the police force involved in the occurrence being investigated.

Mister Chair, the text is clear and unambiguous. Some may point out that civilian observers can visit the scene of the occurrence, but while this is true, what information can be gained there? Any request for clarification or information on site is prohibited since civilian observers may neither directly nor indirectly speak to the police officers in charge of the investigation. Any questions must be directed to the representative of the designated police force, who acts as a filter for information from the investigating officers. 

If the responsibility to be the “eyes of the public” truly is of primary importance, we must note that Bill 46 places blinders on the eyes of the civilian observer. It is unrealistic to believe that observers who are unable to contact either the investigators or the police officers under investigation could properly appraise the investigative process or reach a conclusion on the investigation’s impartiality.

Our questions do not stop at the powers civilian observers have in the oversight of investigations. We are also concerned with the general power of the Bureau to handle problematic situations. If the director of the Bureau discovers that the impartiality of an investigation has been compromised, his or her only recourse is to notify the Minister of Public Security so that another police force can conduct a new investigation. I would like to point out, by the way, that under the Police Act, the Minister already has the power to order another police force to take over and begin a new investigation.

Bill 46 does not address any of the situations that may arise during an investigation before its impartiality is irreparably compromised. What happens in those cases? Neither sanctions nor any way to correct irregularities discovered during the investigation are provided for. Why wait until the investigation is over, when it is too late?

Unfortunately, conducting a new investigation effectively is often very difficult if not impossible. Care in handling witnesses is often a marker of how reliable the testimony gathered is. Restarting an investigation causes delays; this gives witnesses time to talk to each other, which may cause problems.

A model that brings qualified civilian investigators together with police investigators during the investigation itself could prevent such challenges. The model must give qualified civilians full investigative powers and peace officer status. Other Canadian jurisdictions—Alberta, British Columbia and Nova Scotia—have recently adopted regulation to this effect. I refer you to our brief for more information on the matter.

For the government to realize its intent to create a truly independent organization, the organization must be given the arms-length status and autonomy necessary to fulfill its mandate. The police expertise required to conduct a criminal investigation—an expertise whose value and importance we recognize—is not the only basis for the credibility of the investigation. The public trust that is needed can only be gained under the right conditions of independence, transparency and guarantees of impartiality. Why separate police expertise from the other conditions for an investigation’s credibility? To meet the objectives set out to ensure public trust and thus guarantee the credibility of investigations involving police officers, the expertise of police officers should be coupled with that of qualified civilians, under the direction of a guaranteed independent organization.

Mister Chair, the Québec Ombudsman is an independent and impartial organization in this debate, and its only concern is the public interest. I do not represent any association or interest group. I continue to believe that the chosen solution must allow for the conduct of credible, thorough and transparent investigations that foster public confidence and ensure the fair treatment of police officers.

In my opinion, Bill 46 in its current form does not solve anything. In fact, it sets out in written law practices that are at the heart of the public’s expressed lack of trust in current investigations involving police officers. Adding a civilian observer to the investigative process—someone who has no means of taking action and is limited in his or her oversight powers—risks worsening the already negative view of the process. I have a duty to make these assessments, however harsh they may seem.

Mister Chair, the government has identified the problem, which is very real. Current events regularly provide us with examples of the need to act. Legislators now have the responsibility to ensure that the proposed solution is effective. Using the constructive input from various participants and considering what others have achieved, I am confident that the Committee will find the ways and means to adopt an improved legislative bill within a reasonable amount of time, which will be in the best interest of everyone.

Thank you.