Tag Archives: OIPRD

Tribunal? What Tribunal?

Six times in 33 minutes.

That is how often Toronto Police Chief Bill Blair employed the word “tribunal” in his May 16th press conference relating to the OIPRD report that dealt with police behaviour during the G20 in Toronto.  He used the word “tribunal” to refer to potential misconduct hearings against police officers whose cases the OIPRD has asked the Chief to deal with under the Police Services Act.

In this same press conference, Chief Blair refused, yet again, to concede or accept that there were mass violations of citizens’ rights or to apologize to those whose rights were so blatantly and shockingly violated.   He repeatedly claimed that he will only hold police officers accountable for misconduct if such misconduct is proven on the basis of evidence given before a “tribunal.”

The trouble is, there is no “tribunal” to deal with police misconduct.

The word “tribunal” is not mentioned once in the Police Services Act.

Most people understand “tribunal” to mean an arms-length, independent, neutral body that has the final say in the matter before it, like a court.  A court is a kind of tribunal.

In Ontario, for example, we have the Human Rights Tribunal, the Rental Housing Tribunal, and the Workers Safety and Insurance Tribunal.

Adjudicators and prosecutors are appointed to these tribunals after a competitive process, whereby the positions are advertised, resumés are reviewed by committees, and qualified  candidates are interviewed.

No such process exists for police misconduct hearings.  There is no open, competitive application process.  There are no interviews by disinterested, distinct, and neutral third-parties.

It is the Chief of Police who appoints the prosecutors for police misconduct hearings. And it is the Chief of Police who appoints the person who will conduct these hearings.

The Chief, Bill Blair, the same person who has been called on by many to resign, or at least to admit that people’s rights were grossly violated during the G20 under his watch, is the one who appoints the prosecutor and the “adjudicator.”

This is no arms-length adjudicative body.

There is a misconduct hearing.  And the Chief decides who prosecutes and who adjudicates.

This is not a “tribunal.”

Calling such a body a “tribunal” requires a stretch of the public-relations mind.

One might say, so what?  So what if the Chief used the word “tribunal?”  There is still a hearing with an adjudicator and a prosecutor.

The Chief is an extremely intelligent officer, well-familiar with the law, particularly the laws which concern his job, his duties, and the members of the Toronto Police.  He knows the Police Services ActHe refers to it, and refers journalists to it.  He surely knows that the hearings that are held at Police Headquarters, where he appoints the prosecutors and the “adjudicators”, are not like the daily hearings that take place before the province’s many real tribunals.

I believe that Chief Bill Blair used the word “tribunal” quite deliberately.  And, in the context of the G20 and its aftermath, the use of the term “tribunal” is problematic and misleading.

Let’s outline this context:

  •  Two years have passed since the G20.   Still, there has been no apology to the people of Toronto and others, despite the abundant and overwhelming evidence that shows egregious violations of people’s rights.
  •  The Chief could have started his own investigations into any number of misconducts that were apparent to him.  He did not need to wait for the OIPRD report or any other report.  He did not even need to wait for any member of the public to complain to him.  Under s.76 of the Police Services Act, the Chief may make a complaint against any member of his own force.  But the Chief did not take this step against the perhaps hundreds of officers who could have been identified in any of the videos made public after the G20.
  •  Had the Chief started his own processes, more officers may have been held accountable for their misconduct.  This is so because the Chief has easy access to information that can help him identify officers (whereas the Special Investigations Unit does not, for example).  More significantly, a speedier response, which was available to the Chief, would have meant that officers could not avoid responsibility simply by retiring, joining another force, or resigning their positions, which place them outside the jurisdiction of the Police Services Act.  Already, at least two senior officers identified by the OIPRD have escaped any hearings and accountability through retirement.
  •  The Chief has continuously rationalized police officers’ actions and avoided ever acknowledging that there were mass violations of people’s rights.  He has never apologized for the events of those few days, even when asked point blank to do so.
  •  He has minimized the significant abuses of power that occurred, by repeating that officers faced an immensely difficult task (which may be true, but is certainly not a justification for excessive use of force and violations of people’s rights), and by claiming that 20 or 30 hearings, when over 5000 Toronto Police officers served during the G20 weekend, is actually a low number.

Most importantly, by his continued reference to a “tribunal” and a “court of law” as the places where the evidence will be heard and where decisions will be based on fact and law (as opposed to “opinion,” which he implies is what the OIPRD has given), Chief Blair attempts to imply that decisions will be made by an arms-length, neutral court.

It’s not just that the Chief, himself, appoints the prosecutors and “adjudicators” for these hearings.

It is the Chief, himself, who has the final say for what happens to those officers.

In other words, if a finding of misconduct has been made by the person conducting the hearing, then it is the Chief who decides whether and what penalties that officer should face.  He can decide whether no action will be taken, whether the officer should lose a couple of days’ pay, or whether he or she should be dismissed from the police force. (see s. 84 of the Police Services Act.) In essence, the Chief is the final adjudicator.

This is hardly a model of neutral and impartial adjudication, especially since Bill Blair was the Chief during the G20.

The Chief has used the “tribunal” reference as a shield.  He has used it to defer and eschew any negative conclusions about what his officers and the police force did during the G20 weekend in Toronto.  He has used it to say that until the facts and issues are decided before a court of law, he can’t and won’t apologize, assign responsibility or admit that the police grossly breached people’s rights.

But all along, it has been open to the Chief to admit that people’s rights were violated by hundreds of police officers.  The proof has been at his fingertips.  No hearing, whatever he calls it, will provide him with more “objective” evidence than he already has.

Since his May 16th press conference, the Chief has taken a step to make the hearings appear more objective.

On Friday, May 19th, the Chief declared that he will ask a retired judge to serve as the hearing officer and will seek the “services of a former Crown Attorney” to prosecute the cases (this does not, in itself, mean that a Crown Attorney will conduct the prosecutions.)

It is, indeed, good news if the Chief is going outside the force to appoint the prosecutor and “adjudicator” for these hearings.  This step may make the hearing more objective, or at least give the appearance that they are more objective.

But the final disciplinary decision is still the Chief’s.

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Side-stepping, Misleading and Evading: Deciphering Chief Blair’s response to the OIPRD report on police behaviour during the 2010 G20

On May 16, 2012, Toronto’s Chief Bill Blair met with journalists to comment on the Ontario Independent Police Review Director’s report, Policing the Right to Protest, released earlier that day.  The report investigated complaints and made findings into the conduct of the Toronto police during the 2010 G20.  (You can see earlier postings on this topic here and here.) 

The Chief’s response, in my opinion, avoided responsibility, was at times evasive, at times unresponsive, and occasionally misleading.  Over the next few days, I will look at some of these problematic statements.  (One glaring problem a day, more or less)

Avoiding responsibility: the OIPRD report just expresses an “opinion.”

The OIPRD investigators painstakingly reviewed hundreds of hours worth of evidence (police officers’ notes, videos, photographs, interviews, and so on) before coming to the conclusion that during the G20, police officers did violate citizens’ individual and civil rights and liberties and also that excessive force was used on a number of occasions.

Despite the abundance of video footage (for example, the videos that show hundreds of innocent protestors and by-standers under siege by the police for several hours at Queen and Spadina), and personal accounts that confirm, with certainty, that people’s rights were violated, Chief Blair calls the report’s conclusion on this issue merely an “opinion.”

Chief Blair was asked by one journalist whether or not he accepts to rejects the report’s finding that people’s rights were trampled on by police officers (at 17:03 in the video, below).  To this, the Chief responds,

“Well, I think that it certainly requires a hearing.  And generally, I think overwhelmingly, the rights of our citizens were protected that weekend.  There are individual instances where the OIPRD has said that some things, some individual conduct, may have been a violation of rights.  I think that needs to be heard, in a hearing.  Evidence, not opinion, but evidence needs to be brought forward.  And it needs to be brought forward in a hearing according to the rule of law and due process.”

True enough that when the OIPRD refers a matter to the Chief, a hearing under the Police Services Act needs to be conducted before a finding can be made, under that Act, against a police officer.  And yes, the OIPRD’s investigative conclusions are based on a “reasonable belief.”    But to call the OIPRD’s finding that rights were violated during the G20 an “opinion,” and then to imply that, therefore, one cannot conclude that rights were violated on a large-scale, is a mark of denial, evasion, or of eschewing responsibility.  The Chief’s refusal to admit as fact that citizens’ rights were violated, often at-large, and his declaration that the findings in the report merely express an “opinion,” confirm that he continues to deflect and avoid responsibility.  

To many, Chief Blair’s reaction does not come at a surprise, but reflects a continuing sad state of affairs. 

The Chief has said that he is committed to “learning lessons” for the future.  Before he can learn anything, though, he must be willing to call things by their correct names.  Until the Chief (and indeed, our political leaders) are willing to call police conduct during the G20 what it was: improper, excessive, shameful, frightening, and unlawful, we are not going to be learning any lessons for the future.

(next….There Is a Tribunal to deal with police complaints?)

Chief Blair’s press conference May 16, 2012

 

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Will Somebody Hold the Police Accountable?

After a lengthy investigation, the Ontario Independent Police Review Director (OIPRD), Ontario’s civilian body responsible for handling complaints against the police, has concluded that police officers unlawfully jumped on, kicked, beat, shoved, threatened, mocked, and broke the nose of Adam Nobody while apparently affecting an arrest during the 2010 G8/G20 events in Toronto.  In a report released on Friday, January 20th, the OIPRD asserts that the use of such force was excessive and discreditable conduct, and recommends that the officers involved face disciplinary hearings.[i]

But the OIPRD’s report and recommendation come more than six months after the organization retained the file, which means that the officers involved will not automatically face a disciplinary hearing—the Toronto Police Services Board, the civilian oversight body for the Toronto Police, must effectively approve that such a hearing be held.

And what is the response of the police union to the recommendation that the officers who beat a handcuffed and sometimes unconscious Nobody face disciplinary hearings?  “We stand behind them,” said Toronto Police Union President Mike McCormack.[ii]  He has urged the Police Services Board not to hold disciplinary hearings against the officers, citing the 6 month delay.

It is no surprise that officers take advantage of every tool provided by the law.  But given that it is the police’s job to ensure that people who commit unlawful acts actually face the consequences of their actions and are held accountable under the law,  we are justified in asking, “Why is it that when the police commit unlawful acts, the union demands that we let it go?”  We might be excused for reacting indignantly to the union’s stance—a stance which seeks to put police officers above the law.

And what can we expect from the Police Services Board?  It’s the Board that now has the power to decide whether a notice of hearing can be served on the officers in question.  In effect, without the Board’s approval, there will be no hearing. The Police Services Act states that, in order to grant its approval, the Board must be of the opinion that “under the circumstances,” it was reasonable to delay serving the notice of hearing. [iii]

Surely the circumstances do exist here.  The case is one that involves important public policy issues dealing with the public’s right to protest, policing such protests, police tactics, and police officers’ beliefs in how citizens who, in their opinion, have broken the law, can be treated.

Furthermore, the volume of evidence that the OIPRD investigators had to sift through was high- significantly more than evidence from the run-of-the mill complaints that make their way to the OIPRD.  The OIPRD interviewed the complainant, interviewed or read reports from 5 other civilian witnesses, 12 police officer witnesses, and the 8 respondent police officers.  It reviewed audio and video evidence, four “volumes” of information from the Special Investigations Unit, the notebook entries of the police officers, and numerous other pieces of evidence.  This voluminous amount of evidence surely justifies a longer investigation period.

Finally, as the report makes no reference to the topic, we do not know if some of the “delay” during the investigation resulted from the slow or reluctant co-operation of the police witnesses, themselves.

When the legislature set out the limitation period it was likely contemplating the more common and straight-forward cases of complaints against one or two police officers.  It is unlikely that the legislature intended a 6-month limitation to apply to cases where many police officers, under an atmosphere of confusion and “mayhem,” as some witnesses described, were the subject of complaints.

In essence, the limitation period ensures that investigations are conducted efficiently and do not drag on indefinitely.  There is no blanket rule preventing investigations from continuing beyond the 6-month period. Under the circumstances, the OIPRD’s report has been produced in a timely manner.  But union President Mike McCormack wants the TPSB to rule otherwise.

McCormack’s position is offensive.  It demands that police officers who have engaged in illegal (and arguably, criminal) acts not be held professionally accountable for their conduct.  It perpetuates the negative and justified public perception that police officers protect one another no matter how egregious the acts of their members may have been.  The union’s position undermines the credibility of the police and the public’s trust and confidence in the police force.  In the end, though, the law allows McCormack to voice his opinion, but the same law grants the Police Services Board the power to approve that the hearings be held.

So what should we do?  How should citizens who want to ensure that the police conduct their job honourably and without resorting to unnecessary violence react?  Can we do anything to prevent the further erosion of the public’s confidence in the police?  Can we ensure that the Police Services Board grants its approval for the hearings?

Yes.  In this case, there is tangible, simple and effective action that we can all take.  We must let the T.P.S.B. and, in particular the three Toronto City Councillors who serve on the T.P.S.B., know that the officers who abused their power in their dealings with Mr. Nobody must be held accountable.[iv]  At the very least, they should face a disciplinary hearing.  Write to the Board and to the City Councillors and ask that they use their discretion to hold the police officers accountable for their actions, and not to protect officers who grossly abuse their powers.   And then, if and when the T.P.S.B. does approve that the hearings be held, follow up to ensure that the disciplinary hearings lead to meaningful consequences.

Demand that our law enforcement agents abide by the laws that they enforce.


[i] Currently, the report is available through the CBC at the following link: http://www.cbc.ca/news/pdf/OIPRDInvestigative-Nobody01132012.pdf

[ii] Adrian Morrow and Tu Thanh Ha, Watchdog accuses officers of excessive force at G20, The Globe and Mail, Saturday, January 21, 2012 at A15.

[iii] Police Services Act, R.S.O. 1990, C.P.15, s.83(17)

[iv] The three Toronto City Councillors who serve on the TPSB are Councillor Mike Thompson, who is also the Vice-Chair of the TPSB (his e-mail address is:  councillor_thompson@toronto.ca), Councillor Chin Lee (councillor_lee@toronto.ca), and Counciller Frances Nunziata (councillor_nunziata@toronto.ca).  For contact information for other City Councillors, go to: http://app.toronto.ca/im/council/councillors.jsp.

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