Presentation to the Standing Committee on Justice Policy
RE: Bill 103 – Independent Police Review Act, 2007

Legislative Assembly of Ontario
Second Session, 38th Parliament
Wednesday, January 31, 2007
Hansard Transcript, ISSN 1710-9442 – JP 38
Standing Committee on Justice Policy
Independent Police Review Act, 2007

PSYCHIATRIC PATIENT ADVOCATE OFFICE 

The Chair: I call the meeting of the standing committee on justice policy back to order. We'll continue our public deputations.

Our first deputation for this afternoon is the Psychiatric Patient Advocate Office; Mr. David Simpson, director, and Lisa Romano, legal counsel.

Good afternoon, and welcome. Basically, we're allowing 20 minutes per deputation, and then if there's any time left after your presentation, we'll just do questions from the three parties.

Mr. David Simpson: Good afternoon. My name is David Simpson. I'm the acting director of the Psychiatric Patient Advocate Office. With me today is Lisa Romano, our legal counsel. We would like to thank the committee for the opportunity to share our recommendations with you in hopes that they will be adopted to strengthen Bill 103 and create a truly independent police complaints process that has the confidence of the people of Ontario.

We are pleased that the government of Ontario is considering establishing an independent police review system. Unfortunately, Bill 103 will not create the independent process envisioned by the people of Ontario, nor will it enshrine necessary and needed civilian oversight and accountability in the review process. By striking out one single word in this legislation, the word "referral," the objective could be achieved -- a simple yet monumental change.

We need a police complaints process that has strong civilian oversight, a process that is fair, a process that is transparent and that can withstand scrutiny, and one that will allow the Ombudsman of Ontario, as a last resort, to review concerns raised by the people of Ontario. Let me begin by saying that many of our recommendations are based on the premise that a truly independent commission needs to be established. However, if that is not to be, you will note that we make comment on how to improve the current provisions in Bill 103.

The Psychiatric Patient Advocate Office, a rights protection organization, provides independent and confidential advocacy and rights advice services to consumers of and those seeking access to mental health services. We work to empower consumers to make informed decisions about their care, treatment and legal rights. In 2005, we had more than 25,000 patient contacts and provided service in 48 languages.

Some consumers of mental health services inform our office of alleged police misconduct but fail to complain formally out of fear of reprisal by the police and frustration with the existing complaints process. Our clients complain that the system is dismissive of complaints lodged by individuals with mental health histories or because it is alleged that the complaint constitutes "part of their illness," while others say they are discouraged from filing complaints or that their complaints are not investigated fully or fairly. Due to the vulnerability and discrimination of many mental health consumers, there is a profound power imbalance between consumers and the police. Failure to respond adequately to legitimate complaints of police misconduct fails not only the wronged person but the public, the police and the government. The current police complaints process does not have the confidence of most mental health consumers and their families.

On page 7, you'll see that we talk about the need for an independent civilian body. The fundamental flaw with both the current complaints process and the process articulated by Bill 103 is the lack of civilian oversight. Many people, including consumers, are reluctant to lodge complaints regarding alleged police misconduct because they do not have faith in the process that permits police officers to investigate other police officers. The process is perceived as being designed to protect the police instead of the public interest.

In April 2005, Justice LeSage released a report regarding the findings and recommendations based on his thorough review of the police complaints system. The number one recommendation was the creation of an independent civilian body to administer the public complaints system in Ontario. The Attorney General committed to doing so, but sadly, he has failed with Bill 103.

In our opinion, the proposed legislation does not represent a significant change from the current regime, and it is not independent. Although an independent police review director is established to deal with complaints, there is no guarantee of an independent investigation because the director can refer complaints to the police, who will then investigate themselves. The PPAO believes the potential exists for the director to refer the majority of cases to police forces due to funding and external pressures, thus undermining the independence promised to Ontarians.

Bill 103 also endorses a two-tiered system where there are different procedures for complaints respecting officer conduct versus policies and services. The PPAO recommends that all complaints should be handled in the same way. Policy complaints are as important as misconduct and work performance complaints, as policies can potentially affect the lives of many people. As you heard yesterday, the ARCH Disability Law Centre agrees that there should not be a distinction between conduct and policies, as "the conduct of officers is often a reflection of a policy within the police services."

On page 10 of our submission, you'll see our comments regarding the independent police review director. Instead of being appointed by the Lieutenant Governor in Council on the recommendation of the Attorney General, the director should be responsible to the Legislative Assembly. The PPAO would support any move to increase the autonomy of the director, as it would provide him or her with the necessary independence to work without interference or the potential of real or perceived conflict of interest.

The patient advocate office is in agreement with restrictions on employees of the new body requiring that they not be police officers, but we feel it should be bolstered to preclude former police officers from being employees. Our rationale is that former police officers may feel obligated to protect those officers being investigated due to their similar and shared experiences.

You'll note that we also comment on the review of systemic issues. The director has the ability to "examine and review issues of a systemic nature" pertaining to public complaints and to make recommendations to various organizations and government bodies. While the PPAO supports the examination and review of systemic issues, we are concerned that this power will be akin to a toothless tiger if the director is not required to investigate systemic issues. The director must also have the ability to conduct own-motion investigations and have authority to enforce recommendations. Any recommendations should also be made available to the public, either through special reports or the annual reporting process.

Ms. Romano will now continue with the remainder of our submission.

Ms. Lisa Romano: The first topic I am going to speak about is access to the complaints system. This can be found on page 12 of our submission. The complaints process needs to be as user-friendly as possible to make it accessible to all Ontarians. There are several ways in which this can be accomplished.

The first means of achieving accessibility is to ensure that third parties are able to make police complaints. Third parties should specifically include community organizations and advocacy groups. Currently, Bill 103 is unclear and confusing about the role of third parties. The PPAO has heard of many complaints that go unchecked simply because the individual does not have the capacity or ability to make a complaint in their own right due to their illness or disability. Many consumers of mental health services may not always recall the details surrounding their interaction with police. On the other hand, friends, family members or staff at community organizations who were either present during the incident or made aware of the details shortly afterwards may be in a position to assist.

Some consumers may have more pressing issues in their life to address than police complaints, such as finding accommodation or employment or focusing on recovery. Some consumers don't have a fixed or permanent address, so it's difficult for them to receive correspondence or to be kept informed of the progress of their complaint. Involving a third party would take care of some of these concerns.

Individuals should be given the opportunity to have a person of choice to provide support and assist with their complaint from initiation to resolution. Many consumers would appreciate having this support, as the process can be stressful, intimidating and overwhelming.

The PPAO also believes that police officers and staff should not be prohibited from bringing complaints as they are in a unique position to be aware of possible wrongdoings committed by other officers or problems arising from egregious police policies.

Whistle-blower protections should also be put in place to safeguard the rights of an individual who has the courage to step forward to report inappropriate police actions.

Another way to increase accessibility is to permit complaints to be made by a variety of means and with linguistic assistance. Instead of only allowing written complaints, individuals should be able to submit them verbally by telephone or in person. A writing requirement makes the system inaccessible to those with special needs, such as those people who are functionally illiterate or who are unable to communicate in English or French.

The LeSage report noted the linguistic and cultural diversity in the province and the need for accommodation. We believe that there should be service provision in a multiplicity of languages at no additional cost to the complainant for such things as complaint forms, written materials, support services and translation at hearings. Education and outreach programs must also take the language, communication and cultural needs of individuals into account.

Education is a powerful tool to effect social change. Many consumers of mental health services either are fearful of or do not trust the police. This trust must be re-established, and one of the easiest ways to do so is to have police officers undergo regular education about interacting appropriately with persons with mental illness and being sensitive to the stereotypes and stigma that many consumers live with on a daily basis.

We also recommend the establishment of various advisory groups respecting vulnerable populations to assist with the education of police and the public, in addition to analyzing systemic issues endemic to these groups and providing advice to the director.

Education for consumers, families, service providers, advocates and other stakeholders regarding the police complaints process, how to access it and how to make complaints is also essential. The LeSage report advised that public education about the system had been virtually non-existent for several years but is critical to fostering understanding and public confidence in the system. People must be aware of their rights before they can exercise their rights.

Although Bill 103 says that the director shall provide publicly accessible information about the process and arrange for the provision of assistance to the public, it doesn't provide any details as to how this will be accomplished, nor does the government commit to any public funding. Both details and funding are necessary.

The PPAO also supports the LeSage report's recommendation that individual police services must participate in educating the public. At a minimum, each police force should appoint an officer or multiple officers to disseminate information to the public and respond to public inquiries and complaints.

All Ontarians must also have access to the complaints system, irrespective of their location or where they live. The LeSage report acknowledged the need to recognize the geographic diversity of Ontario. However, Bill 103 does not fully support this recommendation and merely says that the director "may" establish regional offices.

One final method of increasing accessibility concerns limiting the power of the director to refuse complaints, which can be found on page 15 of our submission. The director is afforded broad powers to refuse to deal with public complaints under Bill 103. We are concerned that meritorious complaints will be dismissed for reasons of administrative efficiency or lack of education or discrimination concerning mental illness.

Individuals have no mechanism of appeal if the director rejects their complaint. Thus, we recommend that complaints be dismissed only if the complaint is clearly without merit and there is no likelihood that further investigation will establish merit. Complainants should have a right of reconsideration by the director, a right of appeal to the Ontario civilian police commission and, as a last resort, a right to appeal to the Ombudsman.

If the proposed legislation isn't amended to reflect our recommendations, at a minimum, definitions should be provided for "frivolous and vexatious," "made in bad faith" and "public interest," terms that are used with respect to refusing complaints.

I'm now going to turn to the topic of limitation periods, which is found on page 17 of our submission. Bill 103 says that a person can only bring a complaint within six months of the alleged misconduct. We feel this time frame contravenes the general limitation period of two years for most civil actions, as found in the Limitations Act.

A short limitation period is particularly onerous for consumers of mental health services. Due to the cyclical nature of many mental illnesses, some clients may not be able to assert their rights for an extended period of time. Due to the stigmatization and lack of respect for the rights of persons with mental illness, some victims may not realize that they've suffered an injustice. Others may realize that their rights were violated, but they were initially too vulnerable to take action or were concerned that it would impact on their level of access to services and supports in the future. Thus, the short time frame precludes many individuals from exercising their rights, and we feel it should be extended to two years.

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I'm going to speak for a few moments about informal resolution, and that can be found on page 18 of our submission. Bill 103 permits informal resolution in certain circumstances when a complaint is thought to be "not of a serious nature." While the PPAO agrees that informal resolution can be useful, we must be mindful of the inherent power imbalance in such a process. Complainants may feel compelled to agree because otherwise their complaint may be rejected. Forced mediation can also have the effect of revictimizing the complainant.

Several changes should be made, in our opinion. First, it should be the director who should suggest the use of informal resolution. Second, the term "not of a serious nature" should be defined, otherwise the referral of such complaints is susceptible to subjectivity and abuse. Third, there should be a written acknowledgement prior to engaging in informal discussions to indicate that the complainant was informed of the process. Fourth, the mediators should be neutral parties with no ties to the police. Fifth, statistics should be maintained about the numbers and outcomes of times when informal resolution is used. And finally, complainants should be able to receive legal advice and assistance.

On page 21 of our written submission, we discuss our position regarding the rights of persons making complaints, that they would be better protected with the additional oversight of the Office of the Ombudsman. Unfortunately, section 97 of Bill 103 explicitly prevents the Ombudsman Act from applying.

André Marin, the Ombudsman of Ontario, has spoken about the dangers of not allowing his office to have jurisdiction over police complaints. He has asked, "Who will guard the guards themselves? Who will keep this new provincial body in check and independently investigate complaints against it?" He also points out that Ontario will be the only province without external accountability of its complaints system. The PPAO agrees with the assertions made by the Ombudsman and that the Ombudsman should have jurisdiction over the police complaints process.

The last topic I will discuss is police identification, and that can be noted on page 23 of our submission. To initiate a complaint, individuals must provide some sort of identifying information about the police officers who are the subject of the complaint. This can be a huge obstacle. Some clients may have difficulties seeing or remembering the four- or five-digit badge number of the officer, especially if they are agitated or if it's dark where they are. It can also be hard for clients to report sufficient details about an officer's physical description due to the fact that some officers will look the same in their uniform. Many complainants are too intimidated to ask officers at the time of the incident for identification. When PPAO clients have asked for an officer's name or badge number, they are often denied such information.

The need for name tags was recognized by both the LeSage report and various police forces across the province, including the Toronto Police Service, who now require officers to wear name tags. Thus, the PPAO recommends that the legislation require officers to wear visible name tags as it will heighten accountability.

Mr. Simpson will now conclude our submission.

Mr. Simpson: The Psychiatric Patient Advocate Office is pleased that the government is changing the province's police complaints system. However, there are many flaws with the proposed system under Bill 103, most notably the failure to establish a truly independent civilian body. This is extremely disappointing given the input from Ontarians and the resulting LeSage report.

We encourage the standing committee on justice policy to consider our recommendations and to implement them to strengthen the police complaints process and bring justice to those who are most vulnerable and marginalized.

As the proposed legislation represents an opportunity to shape the delivery of one of our most important civic services, we urge you to seriously consider adopting our recommendations, to the benefit of all Ontarians.

The Chair: Thank you. We have about a minute left. Is there anyone who has a pressing question?

Mr. Kormos: Yes, I do.

The Chair: All right. Mr. Kormos.

Mr. Kormos: First: just an incredibly articulate, bold, thorough and intelligent analysis, and I appreciate it very much.

Informal resolution: That's not new. That existed in the 1997 legislation, and the language is identical. I think one of the most frustrating things is that they're not talking specifically -- that is to say, the government -- about, let's say, a mediation program. Lord knows, after they abolished the Human Rights Commission, which is of course what they just did with Bill 107, and all of the great potential for mediation that was contained within that, I'm worried that the informal resolution, without the disciplines and safeguards that are inherent in a professionally functioning mediation structure, is not mediation.

Mr. Simpson: I guess that's part of our concern as well: Is it going to be an informal process just to make complaints go away without careful review? I guess that's our concern. There are things at times that do go to mediation that would be better to go to investigation because of the importance of the issue or the possibility to make systemic change. So I think that's why we think that this section needs more attention.

Mr. Kormos: Which is why I've presented a motion that requires that the director approve the informal resolution if it's being proposed by a chief of police, that it has to be approved before it can be engaged in by the director, which implies the process as well.

Mr. Simpson: Right.

The Chair: Thank you. We're out of time, but, Mr. Zimmer, you have a very brief question?

Mr. Zimmer: Yes, just an observation. Your last sentence was that you wanted to see a system that was fair for "all Ontarians." I've listened very carefully to your submission. I have in my mind that the psychiatric patients are whom you represent, and on the receiving end of the complaints, of course, are the police officers. But I'd be very interested in any observations you might have about ensuring that the people on the receiving end of the complaints receive a fair shake in this process. It seems to me that we've just heard it from one side of the equation, so how do you balance it off to ensure that the police officers on the receiving end of the complaints, in very difficult circumstances, in a lot of cases, dealing with psychiatric patients -- that their rights, if you will, are guarded?

Mr. Simpson: I guess I would say that we've got to remember that our clients are very vulnerable, and there's often a power imbalance between them and the police officers. But if you look at the cover letter to our submission here, I think we recognize what you're saying, that the police need to be able to do their job unimpeded by concern that their actions will come under unwarranted scrutiny. That's some of that. But again, it's about educating police officers, having consumer survivors part of that education, having local police departments set up advisory committees to work with police where there's that intersection of policing and mental health issues so that the public is well served. Hopefully, our comments haven't been taken as a swipe at the police, because that's not what's intended. Our whole presentation -- I hope that what you'll get from this is the need for this system to be truly independent, that complaints not be referred back to local police departments for investigation and referral because that's no different than what we have right now. So let's make it truly independent and strike out that word "referral" to local police departments.

The Chair: Thank you. Just to be fair to the --

Mr. Dunlop: We're fine.

The Chair: You're fine? Okay, thank you.

Thank you for your presentation.

Mr. Simpson: You're welcome.