Changes to how public complaints against police officers are handled will make the complaints system even more insular in Ontario.
Through the province’s Community Safety and Policing Act, 2019, the system for handling non-criminal police misconduct will quietly shift a greater portion of the system out of the public eye. The act has been passed, but is not yet in force.
Review came with recommendations
The review broke ground as the first and only independent systemic review of the police oversight system to tackle how complaints against police officers and police officer discipline are handled.
In 2016, Justice Michael Tulloch, now the Chief Justice of Ontario, led a systemic review of police oversight in Ontario, which included comprehensive recommendations.
The review looked at the three police oversight bodies in Ontario, including the Office of the Independent Police Review Director (OIPRD).
It broke ground as the first and only independent systemic review of the police oversight system to tackle how complaints against police officers and police officer discipline are handled.
Tulloch’s report provided 129 recommendations aimed at enhancing the public’s trust in the system. Although some recommendations were adopted through the 2019 act, most were not.
Independent investigations
The OIPRD has been in charge of handling public complaints against the police since it was established in 2007. It is Ontario’s independent police watchdog on matters of non-criminal police misconduct.
The Special Investigations Unit, on the other hand, conducts investigations of incidents involving the police that have resulted in death, serious injury or allegations of sexual assault.
In this role, the OIPRD co-ordinates with police forces in Ontario to manage the complaints intake and screening process. It also publishes the results of police misconduct hearings on its website.
The OIPRD can conduct misconduct investigations by itself. However, the police forces themselves take on the majority of duties associated with those investigations.
The Office of the Independent Police Review Director is refusing to investigate a complaint about police actions at Toronto homeless encampment clearances last summer.https://t.co/r39n0AitRN
— Toronto Star (@TorontoStar) May 13, 2022
The Tulloch report found that only about a third of complaints investigations were conducted by the police watchdog. It highlighted this issue “as a major impediment to a good faith and impartial investigation.”
A key recommendation was that complaints investigations should no longer be handled by police forces.
A new name in police complaints probes
Currently, individual police services conduct most investigations into complaints about police officers, and this will increase as a result of the 2019 Act.
Such a change shrinks the role of independent oversight into police misconduct.
The OIPRD summarized the forthcoming changes on its website, explaining how it will be renamed the Law Enforcement Complaints Agency.
The agency’s Complaints Director will conduct investigations into public complaints about police chiefs and deputy chiefs, other high-ranking officers and “any other complaints determined to be in the public interest.”
But “all other complaints will be referred back to either the police service from which they originated or another police service.”
Such a change shrinks the role of independent oversight into police misconduct.
Transparency and public trust in the system
Tulloch’s report cautioned that the current system sets up public complainants for disappointment.
At the conclusion of an investigation, the investigator makes a crucial decision about whether the misconduct allegations associated with a complaint are substantiated. This decision cannot be appealed.
A CBC investigation found that out of all the complaints made against Toronto police officers from 2014 to 2019, only 2% were substantiated. Only 1% of substantiated complaints have gone before the Toronto police disciplinary tribunal.
Only 1% of public complaints against Toronto cops led to a disciplinary hearing in past 5 years https://t.co/LgbRQzDxgx pic.twitter.com/2fQakOzoCN
— CBC Toronto (@CBCToronto) October 28, 2020
Even for substantiated complaints that go before a disciplinary tribunal, disciplinary action against the police officer is not guaranteed.
As a result of the 2019 Act, a more limited range of police disciplinary matters will be settled through a hearing, the only public venue for adjudicating police misconduct. These changes erode public trust in the system.
Many complainants find that the system lacks transparency, especially at the police discipline stage. Members of the public have limited avenues for learning about how police forces address individual issues of police misconduct, let alone service-wide trends.
Human rights monitoring in Ontario
Given that the police are the largest single sector for human rights complaints in Ontario, a lack of transparency around police misconduct and discipline is a human rights issue.
One of the most troubling consequences of the current system is that it prevents public agencies from monitoring systemic racism and other human rights abuses associated with non-criminal police misconduct.
The Ontario Human Rights Commission’s Framework for Change to Address Systemic Racism in Policing illustrates how the current system offers no tools to monitor police officers’ violations of human rights or police forces’ responses.
According to the Commission, confidentiality provisions in Ontario’s policing laws “prevent the public from knowing when and whether an officer was subject to some form of discipline for engaging in racial profiling, racial discrimination or other police misconduct.”
Given that the police are the largest single sector for human rights complaints in Ontario, a lack of transparency around police misconduct and discipline is a human rights issue.
The changes from the new Ontario law will make it even harder to monitor police officer violations of human rights. These changes undermine the essential public purpose of the system.
About the Author
Monika Lemke is a PhD Candidate in Socio-Legal Studies at York University. Her dissertation focuses on police-led strip searches in Canada, with an emphasis on their sexual and racial dimension. Her research interests include socio-legal theory, policing, body and sensory studies, the state and bureaucracy.
This article first appeared on The Conversation, and is republished here under a Creative Commons Licence; the original can be read here.
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