Attorney General Must Streamline Police Oversight

By Joe Fantauzzi
ninetytwopointeight@gmail.com

It would be easy to laugh at the debacle Wednesday involving Toronto Police and three different civilian police oversight organizations: The Special Investigations Unit (a provincial police watchdog), the Office of the Independent Police Review Director (a civilian complaints agency) and the Toronto Police Services Board.

But when the laughter caused by watching one public agency slam another ─ which then turns around and says the first agency doesn't know what it's talking about ─ and then both point the finger at a third public agency ─ which in turn offers a response to the first that would plunge it back down a bureaucratic hole ─ a response the first rebuffs and then for reasons unknown slams a fourth public agency, which gets enraged [deep breath] ...died down, the frustrating reality would remain. As it does.

This isn't good for anyone. Not Toronto, not Toronto Police and not Queen's Park. 

The province, specifically the Attorney General, needs to step in now to ensure this doesn't happen again.

In a nutshell, here's some key information:

• In a news release issued by SIU Director Ian Scott, headlined SIU Closes Investigation due to Toronto Police Service’s Refusal to Disclose Complainant’s Statement, the agency, which investigates reports of death, serious injury and sexual assault involving police, notes that Tyrone Phillips, 27, was arrested by Toronto Police July 28, 2012. Phillips alleges he was beaten unconscious during the arrest.
• Phillips takes his complaint to the Office of the Independent Review Director, a arms-length civilian agency accountable to the Attorney General, which manages complaints against police and investigates some of those complaints but orders local police to investigate others, according to the SIU.
• The OIPRD sends Phillips' case back to Toronto Police, which then calls the SIU, because Phillips alleges he was seriously injured, according to the SIU.

Here's where it all gets sticky:

•  As part of its probe into how Phillips got his injuries, the SIU asks Toronto Police for a pile of documents, including the original complaint that Phillips sent to the OIPRD.
  
• Toronto Police refuse to provide that complaint document even after the SIU gets Phillips to sign a waiver, the SIU alleges. That alleged lack of co-operation results in the SIU's stating it can't do its job properly and it pulls the plug on the Phillips investigation. It also goes as far as to say the refusal "may be a breach of Toronto Police Service’s duty to fully co-operate with the unit."
• In a short statement released only moments after the SIU's, Toronto Police respond by saying the complaint document is not theirs to hand over. And that SIU Director Scott is wrong. And that if the SIU wants the complaint document, it will have to go to the OIPRD.
• Late in the afternoon, an OIPRD spokesperson tells Allison Jones of the Canadian Press that if the SIU wants the complaint document, a "simple" solution would be to have Phillips call the OIPRD and ask for it himself. Then, ostensibly the SIU could have it.
• Director Scott tells CP's Jones that the SIU has better things to do. He also told her the SIU did ask the OIPRD for the document but was rebuffed due to confidentiality reasons.
• Then, in the same interview with CP's Jones, Scott muses that he could complain to the OIPRD about Toronto Police but that could result in his complaint landing on the desks of the civilian Toronto Police Services Board, which manages police policy and broad objectives but not day-to-day operations. He then tells CP's Jones that previous dealings with the Toronto police board have left him skeptical that it would deal with his complaint solemnly.
  
• Toronto Police Board Chairperson Alok Mukherjee tell CP's Jones that he is "livid" about the comment.

All of this leads to several questions: Why doesn't the SIU get Phillips to call the OIPRD for the document? Why isn't Toronto Police giving up the OIPRD document? Why won't the OIPRD co-operate with the SIU?

So far, the answers seem to be: The SIU is too busy to knock on more doors; and Toronto Police don't hand out third party documents without the express permission of that third party ─ which is arguably the strongest and most reasonable position.

As for OIPRD-SIU co-operation, both agencies are governed under different sections of the province's policing legislation, appropriately titled the Police Services Act.

The OIPRD spokesperson told CP's Jones the police act "requires the office to preserve the confidentiality of the information they receive and therefore the OIPRD doesn't share information with the SIU."

The confidentiality to which the spokesperson is referring is found in Part II.1, Section 26.1 (9) of the Police Services Act:

"The Independent Police Review Director, any employee in the office of the Independent Police Review Director, any investigator appointed under subsection 26.5 (1) and any person exercising powers or performing duties at the direction of the Independent Police Review Director shall preserve secrecy in respect of all information obtained in the course of his or her duties under this Act and shall not communicate any such information to any person..."

But it goes on:

"...except,

(a) as may be required in connection with the administration of this Act and the regulations;

(b) to his or her counsel;
(c) as may be required for law enforcement purposes; or
(d) with the consent of the person, if any, to whom the information relates. 2007, c. 5, s. 8."

I'm not a lawyer. But I do know that both the SIU and the OIPRD derive their agency from the Police Services Act. And therein lies the rub. 

The OIPRD is forbidden to release any information except in limited circumstances. One of those, as subsection 9(a) states, is the administration of the Police Services Act itself. 

Given that the SIU is also governed by the Police Services Act, where does that leave the OIPRD's decision not to release the complaint to the SIU? You can draw your own conclusions.

Like I said, I'm not a lawyer.

But Simon King is. He tweeted yesterday that Subsection 9(a) might not compel the OIPRD to hand the complaint to the SIU "but it definitely allows for it."

So, where does this leave us?

It leaves Toronto with a resident who was not afforded an investigation for injuries he claims he suffered during an arrest by Toronto Police. It also leaves our police force butting heads with the civilian watchdog set up to monitor it and all other forces in Ontario.

The Attorney General, to which the OIPRD and the SIU are both accountable and share similar raisons d'être, needs to step in now. 

The ministry should clarify in policy what the Police Services Act arguably permits: Tell the OIPRD to co-operate with the SIU if it asks for complaint documents.

Anything less than that and any Torontonian with a complaint about an interraction with police may also be denied a proper oversight investigation.

And, given SIU Director Ian Scott's unprovoked and irrational tirade in the national press about the Toronto Police Services Board, he should resign.

If nothing changes, it is conceivable that the OIPRD and the SIU could even square-off in court in a highly embarrassing and costly dispute over this same issue in the future.

This is a quick fix. It's time for Queen's Park to act now.