The Legislative Assembly of
British Columbia

SPECIAL COMMITTEE TO
REVIEW THE POLICE COMPLAINT PROCESS

SECOND REPORT

August 2002

August 9, 2002

To the Honourable,
The Legislative Assembly of the
Province of British Columbia
Victoria, British Columbia

Honourable Members:

Pursuant to the Committee’s Terms of Reference, we have the honour to present herewith the Second Report of the Special Committee to Review the Police Complaint Process.

In the course of our review, matters were brought to light regarding the performance of the Commissioner from the staff of the office. The Committee felt that divulging such information without adequate protection put them in jeopardy. It is the opinion of the Committee that some form of protection should be in place to protect employees making serious allegations against Statutory Officers or their superiors.

The Committee also feels that after having gone through a review process of the performance of a Statutory Officer resulting in the resignation of the Commissioner, the Legislative Assembly may want to consider such a process to review, periodically, all Statutory Officers.

I would like to express my gratitude to all Members of the Committee for their excellent support and contribution in dealing with some very sensitive and difficult matters in the course of our deliberations.

Respectfully submitted on behalf of the Committee,

Mr. John Nuraney, MLA Chair

 TABLE OF CONTENTS

COMPOSITION OF THE COMMITTEE

TERMS OF REFERENCE

On August 9, 2001 the House approved the following motion:

That a Special Committee to Review the Police Complaint Process be appointed and empowered to examine, inquire into and make recommendations with respect to the police complaints process in accordance with section 51.2 of the Police Act (RSBC 1996, c. 367) and in particular, without limiting the generality of the foregoing to: 

1.	Review comprehensively Part 9 (Complaint Procedure) of the Police Act and the work of the Police Complaint Commissioner;
2.	Solicit and consider written and oral submissions from any interested person or organization by any means the Committee considers appropriate;
3.	Submit a Report including any amendments to Part 9 that the Committee recommends to the Legislative Assembly arising out of the results of the Committee's inquiry within one year of this resolution being adopted by the House.
The Special Committee so appointed shall have the powers of a Select Standing Committee and is also empowered:
	(a)	to appoint of their number, one or more subcommittees and to refer to such subcommittees any of the matters referred to the Committee;
	(b)	to sit during a period in which the House is adjourned, during the recess after prorogation until the next following Session and during any sitting of the House;
	(c)	to adjourn from place to place as may be convenient;
	(d)	to retain such personnel as required to assist the Committee;
and shall report to the House as soon as possible, or following any adjournment, or at the next following Session, as the case may be; to deposit the original of its reports with the Clerk of the Legislative Assembly during a period of adjournment and upon resumption of the sittings of the House, the Chair shall present all reports to the Legislative Assembly.

The Committee was re-appointed with the same Terms of Reference on February 13, 2002, enabling it to continue its work during the Third Session of the Thirty-seventh Parliament.

COMMITTEE PROCESS

The Special Committee to Review the Police Complaint Process was appointed on August 9, 2001 to examine, inquire into and make recommendations with respect to the police complaint process, in accordance with section 51.2 of the Police Act. That section requires that a special committee of the Legislative Assembly conduct a comprehensive review of Part 9 of the Police Act and the work of the Police Complaint Commissioner within three years after Part 9 comes into force. The Committee was re-appointed with the same Terms of Reference on February 13, 2002, enabling it to continue its work during the Third Session of the 37th Parliament.

To begin its review, the Committee invited 67 individuals and organizations, including municipal police departments, boards, tribal police agencies and community organizations in British Columbia, to appear before the Committee or to provide their written comments on the police complaint process. Invited witnesses attended public Committee meetings held between November 2001 and March 2002.

The Committee also held two public hearings during April 2002 -- one in Vancouver and one in Victoria -- and published a request for written submissions. The public hearing schedule and the call for submissions were published in regional newspapers serving those communities with municipal and tribal police forces, and in BC’s major daily newspapers.

In total, the Committee heard from 68 witnesses and received 28 additional written submissions during the public consultation process. For a list of presenters, see Appendix 1. Transcripts of the Committee’s public meetings are available on the Internet at www.legis.gov.bc.ca/CMT/.

The Committee also specifically sought the views of those who had engaged with the police complaint process as complainants. The Committee requested that the Office of the Police Complaint Commissioner distribute, on the Committee’s behalf, a questionnaire to the 1043 individual complainants on file in the office. The Committee received 268 completed questionnaires in response.

The Committee would like to acknowledge the contributions of the many individuals and organizations who took the time to write and present their ideas for consideration. Members of the Committee also thank the Office of the Clerk of Committees for its administrative, procedural and research support -- in particular Kate Ryan-Lloyd, Craig James, Wynne MacAlpine and Audrey Chan -- as well as Hansard staff for their transcription services.

EXPLANATORY NOTE -- THE CONFIDENTIALITY
OF COMMITTEE EVIDENCE

During April and May 2002, a number of witnesses, including existing staff and former employees of the Office of the Police Complaint Commissioner, came before the Special Committee to Review the Police Complaint Process with serious allegations regarding the conduct and performance of the Police Complaint Commissioner. The Police Complaint Commissioner resigned, as reported by this Committee on May 30, 2002.

The Committee is aware that some of the written materials provided to the Committee by those witnesses contain sensitive documents, which are not intended for further disclosure.

The Committee therefore passed the following motion on August 8, 2002:

That all submissions, tabled documents, other relevant documentation and correspondence not appearing in the Report of Proceedings (Hansard) for the Special Committee to Review the Police Complaint Process not be disclosed or published without the permission of the Committee.

THEMES EMERGING FROM THE COMMITTEE'S CONSULTATIONS

The framework of the process for handling complaints against municipal police in BC is provided in Part 9 of the Police Act. A general consensus exists that the police complaint process, as established, is a good one -- held out as a model for other jurisdictions around the world. The Committee recognizes that many of the issues identified by witnesses in fact concerned the implementation and application of the Act, rather than the legislation itself. The recommendations made by the Committee are therefore intended to strengthen Part 9 of the Act.

While witnesses identified a variety of issues with respect to the police complaint process, four main themes emerged from the Committee’s public consultations:

1. the need to improve public confidence in the complaint process;

2. the need to improve the informal resolution process and to use that process more frequently;

3. the need for procedural improvements to enhance the fairness of the complaint process for complainants and respondents; and

4. the need to clarify the role of the Police Complaint Commissioner.

In addition, the Committee is recommending various other policy changes and amendments, which are contained in the section entitled "Other Recommendations." 

PUBLIC CONFIDENCE IN THE
POLICE COMPLAINT PROCESS

The Committee heard that the success of BC’s police complaint process depends largely on the commitment and cooperation of the police, who have primary responsibility for handling complaints, and the impartiality of the oversight body. Other criteria identified were public awareness and confidence in the process. Various witnesses gave the Committee their perceptions of how well those criteria are being met in practice. As demonstrated below, witness comments regarding the role of police and the Police Complaint Commissioner ranged from supportive to critical, while many witnesses did agree that public awareness needs improvement.

Police representatives, authorities on civilian oversight and most community organizations who appeared before the Committee support the basic framework of the BC police complaint process and recommended that any amendments arising out of this legislative review not alter the overall structure. In the words of one witness, "[w]e would oppose any attempt to dismantle the fundamental foundations of the Act." Some witnesses stressed that police officers and their organizations are dedicated to upholding the public trust as a fundamental requirement of their sworn duty, an obligation which extends to addressing police misconduct through the complaint process. As one witness explained, police are motivated as professionals to "uphold the critical integrity of the police role." Some community organizations reported that in recent years, police have become increasingly professional with respect to handling complaint investigations. One staff member from the Office of the Police Complaint Commissioner commented that in his experience, police investigators have been very cooperative and helpful in allowing the Office to fulfill its oversight role. Witnesses who support the framework also agree that the Office of the Police Complaint Commissioner is an effective, independent counterweight to the influence of the police in the complaint process.

On the other hand, some witnesses said that the complaint process "is a bit like asking the fox to guard the henhouse." These witnesses questioned the ability of the police to impartially handle complaints. In describing their experiences, some complainants mentioned the negative attitudes of police, bias in favour of respondents, and poor communication. Overall, these kinds of experiences have created a sense of dissatisfaction with the complaint process for some who have made complaints.

Witnesses also told the Committee that more needs to be done in the area of public education about the police complaint process. Various witnesses highlighted the facilitative role that community service organizations can play in providing public information, particularly in the context of our multicultural society, and suggested that these organizations could be of assistance to the Office of the Police Complaint Commissioner in developing or delivering public information materials and programs.

 The Committee believes that complainant satisfaction could be improved through better communication. The Committee is hopeful that the divergent viewpoints described above will encourage discussion among the Office of the Police Complaint Commissioner, discipline authorities and community organizations on developing practical measures that can improve complainant satisfaction and increase public confidence in the police complaint process.

The Committee recommends:

INFORMAL RESOLUTION OF COMPLAINTS

Witnesses were very supportive of the informal resolution process, and many indicated that it could be used appropriately for many kinds of public trust complaints. The Office of the Police Complaint Commissioner mentioned that having complainants and respondents discuss their concerns through informal resolution processes may provide an opportunity to build community relationships that foster communication. The Committee heard many witnesses say that most complainants would be satisfied and their complaints quickly resolved if they were given the opportunity to explain their positions and were to receive an apology or some acknowledgement of their grievance. The Committee also heard that informal resolution can be a more positive experience for the respondent.

Witnesses noted that the Act contains provisions for informal resolution, but that the commitment of police, individually and organizationally, is needed to make them effective.

It is the opinion of the Committee that training in appropriate dispute resolution mechanisms, such as facilitated negotiation and mediation, should be made mandatory at the recruit level and in subsequent in-service training.

The Committee recommends:

FAIRNESS FOR COMPLAINANTS AND RESPONDENTS

Systemic Complaint Information

Several police representatives told the Committee that they are dissatisfied with the systemic information collected and disseminated by the Office of the Police Complaint Commissioner. One police department, for example, said that while “one of the core functions of the Office of the Police Complaint Commissioner is to ensure that the Act is applied consistently throughout the province,” the Office does not track case dispositions in a way that enables police unions and discipline authorities to compare cases. In turn, that has made it difficult for discipline authorities to know that the dispositions they recommend are consistent with dispositions that have been given in similar cases. Some non-police witnesses also expressed frustration with the lack of consistency in the handling and outcome of complaints.
Other police agencies mentioned that their departmental statistics do not coincide with those published by the Office of the Police Complaint Commissioner. Some police organizations told the Committee that they have developed their own information programs for tracking complaints and dispositions, "as there is no OPCC computer program available."

The Committee recommends:

Lodging a Complaint

Despite the statutory requirements for recipients to assist complainants in lodging complaints, the Committee heard from many witnesses who felt they were not assisted adequately or at all when attempting to lodge a complaint. Some witnesses said that they were not told about the Form 1 requirement when making their complaints at police departments, which meant that their initial complaints were not processed. Others reminded the Committee that the process of submitting a complaint is generally undertaken under “stressful conditions” for the complainant, which makes it difficult to remember the details needed to complete the form. In general, these individuals feel that in the absence of adequate assistance or information about the lodging process, the Form 1 obstructs access to the complaint process.

The Committee recommends:

Summary Dismissal of Public Trust Complaints -- Section 54

Numerous witnesses raised concerns with the inclusion of the phrase "frivolous and vexatious" in section 54(1)(a). Witnesses told the Committee that such language is demeaning to complainants and unnecessary. The Committee understands that the terminology has a purposeful meaning in law; however, members of the Committee agree that plain-language alternatives, such as "unsubstantiated" or "unfounded" are more appropriate terms in a process intended for use by the public.

The Committee also believes that when notifying a complainant whose complaint has been dismissed, a verbal notification would provide the Commissioner and the complainant with an opportunity to discuss the reasons for the dismissal, and therefore might be perceived as a more constructive approach to summarily dismissed complaints.

The Committee recommends:

Conduct of Discipline Proceedings -- Section 59

One group of witnesses recommended an amendment to authorize discipline authorities to suspend discipline proceedings pending further investigation when new evidence is received. These witnesses told the Committee that two legal opinions have indicated that the Act does not allow the discipline hearing to stop once it has begun. An amendment allowing discipline authorities to suspend discipline proceedings to reinvestigate on the basis of new evidence presented at the proceeding would make the process more effective by allowing the discipline authority to substantiate or dispute the evidence received and resume the discipline proceeding accordingly.

The Committee recommends:

Providing Written Reasons for Denying a Public Hearing

Witnesses advised the Committee that to ensure that complainants and the public are aware of the reasons for denying a request for a public hearing, and therefore to enhance public accountability, the Police Complaint Commissioner should be required to provide written reasons when he or she refuses to grant a public hearing under section 60.

The Committee recommends:

Time Limit for Ordering a Public Hearing

Many witnesses are dissatisfied with the current open-ended provisions for arranging a public hearing, which they claim has enabled the Police Complaint Commissioner to call public hearings, months after a discipline proceeding is concluded, in response to unfavourable media reports. They claim that time limits would assist in meeting one of the policy objectives of the complaint process -- the prompt handling of complaints -- and would provide closure within a reasonable time period for both complainants and respondents. Witnesses therefore recommended that section 60(4) be amended to include a time limit within which the Commissioner must decide whether or not to order a public hearing, and that such an amendment also include a provision allowing the Commissioner to order a public hearing if new information comes to light after the expiration of the time limit.

The Committee recommends:

Revoking a Request for a Public Hearing

The Committee heard that currently there is no provision in Part 9 to allow a respondent to revoke or cancel a request for a public hearing. The Police Complaint Commissioner must order a public hearing if one is requested by a respondent who has received a discipline proceeding disposition greater than a verbal reprimand, whether or it meets the public interest test under section 60(5). Witnesses believe that the legislation should also allow the respondent to withdraw his or her request for a public hearing, if the Commissioner considers that the matter does not meet the public interest test.

The Committee recommends:

Public Hearing Procedures -- Section 61

Witnesses explained that the public hearing procedures under section 61 allow that witnesses put forward by the respondent can testify only if permitted to do so by commission counsel. Although commission counsel is intended to be a neutral party, responsible for presenting the case in the public interest, the Committee heard that respondent officers often impute bias if their witnesses are not called. The Committee was also advised that if an officer is charged with misconduct under the Act or under the Code of Professional Conduct Regulation, he or she should be able to call "all the available witnesses" that have evidence against the charges.

Others believe that in the interest of fairness and the perception of fairness, complainants should be entitled to the same rights provided to respondents under section 61(4)(a) to examine or cross-examine witnesses. These witnesses claim that an amendment to that effect would be in keeping with one of the intended objectives of the complaint process, which is to fully and fairly address complainants’ concerns.

The Committee recommends:

Service or Policy Complaints -- Section 63.1

During the Committee’s consultations, a concern was raised with respect to the use of the service or policy complaint process for filing grievances that should be dealt with under a collective agreement. Witnesses believe that "the service and policy stream in Part 9 was never intended to be used to hear labour relations matters" but rather "to address conduct or issues that are not specific to a member but that deal with policy, internal procedures or training." However, witnesses explained to the Committee that the service or policy complaint process has been used to address labour matters by officers who are not covered by a collective agreement.

Witnesses also recommended that there be a deadline added to section 63.1(6) for the complainant to apply for a review and another deadline for the Commissioner’s review to be completed under section 63.1(7). Witnesses explained that those amendments would ensure that service or policy complaints are finalized within a reasonable time period.

The Committee recommends:

Complaints Made in Confidence -- Section 65.1(6)

Witnesses explained that the provisions for complaints made in confidence under section 65.1 are intended to offer "whistleblower protection" for police officers who want to initiate a complaint and protection for civilian complainants who fear reprisals. Some police representatives told the Committee that although they do not oppose the protection measures provided through the section, this section should be amended to allow that complaints made in confidence will be streamed as either public trust, internal discipline, or service or policy according to the substance of the complaint. They explained that the internal discipline process is particularly inappropriate for service or policy complaints, which are not based on allegations of misconduct.

The Committee is concerned about the potential for abuse of the provisions for complaints made in confidence. In the Committee’s view, the requirement to handle all complaints made in confidence as internal discipline complaints could enable complaints made in bad faith to be pursued without adequate procedural protections for the respondent parties. The Committee believes that in the interest of fairness to respondents, as well as the interest of protecting vulnerable complainants in the processing of complaints made in confidence, the Police Complaint Commissioner should be given the discretion to recharacterize a complaint made in confidence as public trust or service or policy, according to the substance of the complaint, the interests of the parties to the complaint, and the public interest.

The committee recommends:

THE OVERSIGHT ROLE OF THE COMMISSIONER

Witnesses confirmed that the Police Complaint Commissioner in BC’s civilian oversight model was intended to act as a "guardian of the process" by supervising complaint procedures and by ordering, if necessary, that discipline authorities handle complaints in a manner that is compatible with the public interest. Some also emphasized that the broad discretionary powers of the Police Complaint Commissioner -- to receive and obtain information respecting a public trust complaint from the parties to the complaint and the discipline authority under section 50(4), and to order an investigation into the conduct of an officer whether or not a record of complaint has been lodged under section 55(3) -- were intended to allow the Commissioner to intervene in exceptional circumstances that may occur, such as a police "cover up" of a significant public trust matter. The Committee agrees that the Police Complaint Commissioner should function primarily as an oversight agent, but that he or she should have adequate discretionary powers to ensure that the police complaint process satisfies the objective of providing police accountability to the public.

Many witnesses are also of the view that police training is well beyond the appropriate role of the Commissioner and the Office of the Police Complaint Commissioner, which is fundamentally to create and maintain "an effective, cost-conscious, timely and straightforward oversight process." Witnesses also told the Committee that the existing configuration of responsibilities with respect to police education and training is effective and suitable. The Ministry of Public Safety and Solicitor General is, under the Police Act, responsible for "all matters of policing that relate to policy, procedures and standards." In 1998, the Justice Institute of British Columbia was mandated to provide training on the complaint process to all internal investigators. The Committee was also advised that police departments have developed internal mechanisms for promoting "diversity and acceptance," such as "in-house diversity training programs, a commitment to community policing, advanced standards for recruits that emphasize integrity and scholastic achievement, organizational restructuring and the development of ethical discussion forums." In addition, Part 9 of the Police Act provides the Commissioner with the authority to make recommendations in any area relating to the complaint process, including police training. As previously mentioned, the Committee also heard that training should be provided for informal resolution.

The Committee recommends:

OTHER RECOMMENDATIONS

Police Complaint Commissioner -- Section 47(3)

In course of its review, the Committee found that the term of office for the Police Complaint Commissioner needed to be examined. Six years with no review seemed a tenure with limited accountability.

The Committee recommends:

Review of this Part -- Section 51.2

Many interested parties told the Committee that as participants in the development of Part 9 of the Police Act, they promoted the inclusion of this section and fully support this three-year review. A number also recommended that this section be amended to require that Part 9 be reviewed again in another four years’ time.

The Committee recommends:

Appointing an Adjudicator -- Section 60.1

A number of witnesses recommended that Part 9 be amended to incorporate the existing policy of the Office of the Police Complaint Commissioner for selecting adjudicators. In its decision in Doern & Jones v. Police Complaint Commissioner (2001 BCCA 446), the BC Court of Appeal ruled that the provisions in section 60.1(2) of the Police Act violate the principles of natural justice in that they create a reasonable apprehension of bias. As a result, the Office of the Police Complaint Commissioner has adopted a policy whereby a Chief Judge of the Supreme Court of BC selects a retired judge without involving the Police Complaint Commissioner. This practice has been approved in principle by subsequent BC Supreme Court rulings.

Other witnesses also suggested that not only retired, but also sitting provincial court judges could be appointed as adjudicators.

The Committee recommends:

Service Record of Discipline -- Section 65.3

Several police representatives discussed the need to review the provisions for recording and removing corrective and disciplinary measures on the service record of discipline. It was suggested that measures that are intended to be corrective not be recorded on the service record of discipline, since creating a permanent entry for such dispositions undermines their remedial potential, and creates resistance to what could instead be considered a developmental or instructional occurrence. Another suggestion was that an expungement schedule could be added to section 65.3 to allow corrective complaint dispositions to be removed from the service record of discipline after a period of time. Other witnesses believe that complaint dispositions should not be removed from the service record of discipline, but that their use should governed by established principles of labour law, which would allow prior defaults to be weighed by a discipline authority or an adjudicator.

The Committee recommends:

Confidentiality and Security of Sensitive Law Enforcement Information

The implementation of measures to protect the confidentiality of sensitive law enforcement information was the major recommendation of the Organized Crime Agency. Its concern, which is shared by some other witnesses, is that information disclosed to complainants during the complaint process may be used to undermine law enforcement activities, some of which are long-term and interjurisdictional in nature.

The Committee recommends:

Administrative Search Warrants

Many witnesses agreed that Part 9 should include provisions for discipline authorities to apply for administrative search warrants to assist them with investigations under Part 9. Discipline authorities have, since 1998, used criminal search warrants and the Commissioner’s powers under section 50(5) to obtain required evidence, but witnesses agree that "neither of these tools is entirely appropriate," and they note that the practice of using criminal search warrants in the complaint process is now under court challenge. Witnesses informed the Committee that there are precedents in British Columbia for empowering oversight agencies to obtain information during investigations, including the Ombudsman Act, the Legal Profession Act and the Medical Practitioners Act.

Other witnesses believe that only complaints containing possible criminal matters can justify the use of a search warrant, in which case a criminal search warrant should be used. However, these witnesses recommended that if administrative search warrants are thought to be necessary, discipline authorities should be able to apply to a justice of the peace or a provincial court judge for a search warrant under section 21 of the Offence Act.

The Committee recommends:

Continuity of the Complaint Process

Numerous witnesses told the Committee that the Act’s silence regarding the continuation of the complaint process for officers that have retired, resigned or been dismissed is an undesirable weakness. Witnesses agreed that a respondent should not be able to avoid the investigation and reporting of alleged misconduct by leaving the police force.

The Committee recommends:

Harmonization

A number of witnesses recommended that all police services in BC be brought under the provincial complaint process. Some feel that the division of policing responsibilities in the province between municipal police forces and the RCMP is confusing for potential complainants and contributes to the sense of inaccessibility of the process. Others are of the view that the RCMP complaint process provides inadequate transparency, accountability, and efficiency.

Witnesses acknowledged that the RCMP, as BC’s provincial police force, could not be brought under Part 9 of the Police Act through an amendment, but could only be achieved through negotiations between the provincial and federal Solicitors General. For example, the Committee heard that two Supreme Court of Canada decisions have ruled that the RCMP is outside of any provincial jurisdiction and under no legal obligation to abide by provincial operational or administrative policies, and that the Provincial Police Service Agreement allows the Government of Canada to govern the internal matters and professional procedures of the provincial police force.

The Committee recommends:

SUMMARY OF RECOMMENDATIONS

Proposed Amendments to Part 9 of the Police Act

Other Recommendations

APPENDIX I -- WITNESS LIST