OTTAWA WITNESS GROUP

Presentation to the LeSage Review
of the Police Complaints Process

July 2004

1) Purpose of brief

This presentation to the Police Complaints Review by the Ottawa Witness Group is concerned with the municipal police complaints process in Ontario. It is made with a view towards improving the current system. This presentation covers the following: why we are making this submission; what should be expected in an accountable complaints system; the outline of a new conflict resolution model for Ontario; and our recommendations.

2) The Ottawa Witness Group

We are a local volunteer social justice organization concerned with preserving public space and protecting the right to protest and dissent. Witnesses come from all walks of life, including the labour, human rights and faith communities. We attend major demonstrations in the Ottawa area to observe interactions between police and demonstrators. We report on actions of the police and monitor their adherence to the standards of human rights such as freedom of speech and freedom of assembly in a democratic society. We work in pairs to record the times, actions and sequence of events.

The Ottawa Witness Group (OWG) was formed in early June 2002 out of concern over aggressive police behaviour toward peaceful protesters during G-20 demonstrations in Ottawa in November 2001. The untoward behaviour of police against protestors during this event was in marked contrast to many previous demonstrations in Ottawa in which policing was measured and appropriate. For background, you may consult The Citizens Panel on Policing and the Community: Overview Report and Recommendations, May 2002. This report is available on the Citizens Panel website at: http://members.rogers.com/citizenspanel.

Witnesses participated as observers in G-8 events in June and July 2002, to protect the rights of protesters and to hold police accountable during these protests. While the policing of G-8 demonstrations was improved, there were also concerns. Our full report is available on the OWG website at: http://members.rogers.com/witnessgroup. You will also find our second annual report and other related documents.

Since then, Witnesses have attended numerous anti-globalization, civil rights, anti-war, and homelessness demonstrations to monitor and report on how police have dealt with dissent.

It is important to note that witnesses are not demonstrators. We have strict rules governing our actions and we do not accept literature from protest groups, chant, carry signs, participate in street theatre, or engage in any other protest activities during demonstrations. We also do not interpose ourselves between police and demonstrators. This is crucial to understand, since unfortunately the Ottawa Police Service has characterized the Ottawa Witness Group at public meetings and to the press as simply a protest group that has supposedly interfered with their activities, a portrait we believe is unwarranted and unhelpful.

Witnesses have also engaged in a variety of other activities, including:

meetings with the Ottawa Police Services Board and police liaison personnel, demonstrators, the media and those interested in policing in the community;

sponsoring a public teach-in at Saint Paul's University; and

canvassing of 2003 municipal election candidates through a questionnaire concerning the policing of major events in Ottawa.

3) Policing police in Ottawa – time for change

3.1) Complaints against police:

• We have become convinced that the police complaints process does not offer effective redress to those who wish police behaviour to be seriously and equitably reviewed; most complaints are dismissed out of hand. In fact, we believe that the current process is a waste of time and resources.
• The problems arise because of the way in which complaints are managed, starting with the civilian oversight body mandated by the Ontario Police Services Act. The Ottawa Police Services Board (OPSB) does not provide effective oversight, because of its limited membership, which does not represent our diverse community, and because it does not use its powers to balance its management role with its role as protector of the public interest with regard to complaints.
• By "balance" we mean that the Board does not appear to ensure an objective and independent review of complaints from the public. Instead, the appearance – and we think the reality – of complaints handling is that the police investigate themselves, so that the complaints process is deprived of the credibility it should have.
• Moreover, the current law hamstrings organizations such as ours who, seeing issues in police behaviour, might want to lodge complaints. Third party complaints are not allowed under the Ontario Police Services Act. A number of us have lived our work lives under labour relations or human rights law. We have seen the useful role that unions and non-governmental organizations can play in raising policy and systemic issues through a complaints procedure. We believe that third parties, whether groups or individuals, can bring knowledge and act in the public interest, including in the interest of the most vulnerable members of society, and that to exclude third parties from the complaints process is a serious omission.
• The current process for complaints relies solely on the resources and knowledge of individuals. As a result, there are few pressures to produce timely, thorough and balanced reports and recommendations. Secrecy is also more easily maintained and the public learns little if anything from the handling of complaints.
• As noted earlier, the vast majority of complaints are dismissed: in 2001, for example, out of 243 complaints, only 13 resulted in something called "informal discipline." Most complaints were withdrawn, deemed "vexatious," "unfounded" and so on. (Since that time, the detailed disposition of complaints no longer appears in the Ottawa Police Service Annual Reports.) Frankly, that is surprising to us and leads us to believe that complaints are not taken seriously. Moreover, according to the 2002 Annual Report, a trend has emerged called "personalization of the complaints process," or "face-to-face interaction." "Complaints are typically withdrawn," the Report notes, "when the Professional Standards Section investigator has an opportunity to meet and discuss the situation with the complainant." (p.6) Without placing too negative a construction upon meetings with complainants by investigators from the Ottawa Police, one might nevertheless compare this process unfavourably to an open hearing in which complainants are represented and have their "day in court."
• A number of incidents that we have observed, or that have been described over the past three years, have deserved greater public attention than the complaints process has given them. That is not to say what the outcome of investigations should have been, but to underscore the fact that the police have completely missed opportunities to show their even-handedness, to develop greater trust in the community, and to demonstrate that investigations have the public interest at heart. As a result, many of us cannot escape the impression that investigations that do not see the full light of day may well be hiding something important – whether this is a just impression or not. The optics create a problem of trust.
• The Ottawa Witness Group, as noted earlier, had its genesis in the Citizens Panel on Policing and the Community. That panel, headed by former mayor Marion Dewar, heard 60 stories of difficulties with police behaviour during demonstrations around the meeting here in Ottawa of the G-20. These stories included numerous protesters being arrested without charge and refused access to legal counsel of their choice; unjustified searches and seizure of personal property; police dogs out of control and biting unarmed, peaceful demonstrators, whose wounds were subsequently not attended to; police officers hitting a reporter not once but twice; a pacifist grandmother being hit in the face with a shield by a riot police officer, and so on.
• No independent enquiry was called by the policing authorities, who instead offered blanket praise for the end result of policing during those events in November of 2001 – that the summit was not disrupted and the police achieved what they were required to. In our view, that position was tantamount to justifying means by their ends. More important, it demonstrated a disregard for a balanced and proportionate application of force, and an unwillingness to subject any police actions whatever to public review.
• The attitude of the Ottawa Police to the right of public dissent might perhaps be summed up in their own words, from the 2002 Annual Report of the Professional Standards Section: "World meetings were held in Ottawa in November 2001 (G-20 and World Bank), February 2002 (G-7) and June 2002 (aspects of G-8). Regrettably, there were significant demonstrations associated with these meetings"(p.7). We would note our concern at what appears to be a negative view of dissent on the part of the Ottawa Police.
• We have observed incidents since then that have gone without serious investigation.


Examples:

• The excessive use (ninety-second soaking) of pepper spray on a young demonstrator who not only suffered from asthma, but went without medical treatment for more than ten hours afterwards. Manufacturers recommend a quarter- to one-second burst – see http://archive.aclu.org/news/w112497c.html. There is some evidence to suggest that the use of pepper spray can be lethal – see http://tinyurl.com/523vn.
• Tasers are electroshock weapons that have been linked to more than 50 fatalities in the US since June, 2001 [As Police Use of Tasers Grows, Questions Over Safety Emerge, New York Times, July 18, 2004, pp. 1, 25].

• Police repeatedly used Tasers against a demonstrator who was in fact already prone on the ground and handcuffed. The written dismissal of the demonstrator’s subsequent complaint included the assertion that passive resistance is considered to be active resistance, and that the deliberate infliction of pain in such circumstances is justified by provincial guidelines.
• An officer broke ranks to apply a Taser to a female demonstrator’s breast. Accounts from non-police witnesses were cursorily dismissed in the written rejection of her complaint.

1. We must emphasize that we are not critical because the police were exonerated from infringing professional and human rights standards. Rather, we are offended that investigations, when they did take place, took many months (violating time limits defined in provincial guidelines), produced reports that show no consideration of the facts or simply reproduce policy statements by police authorities, and give the appearance of rationalizing police actions.
2. The community deserves better. Citizens who are marginalized, like the homeless, visible minorities, and new Canadians, deserve equal consideration and greater respect. We recall a series of arrests of the new owners and workers in a restaurant from the Somali community after a call to police – a call that may have been racially motivated. The damage to relations between police and the Somali community was clear. (See Appendix 1 for further details).


3.2) Police and community:

1. We have noted that many in the non-governmental sector who turn out for demonstrations have developed a serious distrust for the police. They do not believe that the complaints process offers redress. In the early months of our work, we thought that we could bridge this gap to some extent between the NGO community and police. We held community meetings and made police pamphlets on the complaints process available. Since then, we have seen that the fine words in those pamphlets have not been matched by action.
2. The fracas at the Somali restaurant caused consternation among senior police ranks, as we saw by concern expressed in the media. Informal consultations were held. Since then, the matter has evaporated. The public knows little of what the police learned. We know nothing of what resolution may be achieved with the owners of the restaurant.
3. Such incidents must be handled much more transparently. Otherwise, the police do not appear to be "serving and protecting" the community at large, but to be a power unto themselves. That does not seem to us to serve either party well in a democratic society.
4. We also believe that there should be demonstrable efforts to communicate to the public not only in the case of serious incidents, but also where there are systemic or policy issues. A less-than-successful example of such an effort was the Agenda for Excellence, a draft policy developed by the Ottawa police after the Citizens Panel G-20 hearings. It contained many proposals for dealing better with major events, which we as a group have supported—but it has never been adopted as a formal policy.
5. We have been positive about the police acting with moderation and mediating tense situations during many demonstrations. Over and against this, however, have come actions on the periphery of demonstrations. Leaders have been taken into custody on frequently flimsy grounds, and often no charges have been subsequently laid. Charges that were laid against protest leaders in April 2003 were subsequently thrown out by the Crown as unsupportable. Overwhelming force was used to end a house occupation by a small group of unarmed young people during one demonstration. The approach of the draft policy, in other words, has not been invoked; and the credibility of the police as an even-handed organization has been cast into doubt.
6. The police have said to us that they wish to be transparent. To be fair, there have been occasions when they have listened and showed restraint, and we have noted this publicly on several occasions. On the other hand, they have been reluctant, or have even resisted providing us with full information about their policies and practices.
7. Most serious in this regard has been information about the use of force, specifically Taser guns and pepper spray. Both can have lethal effects, and certainly can do serious harm. The community should know how the police propose to use them.
8. Although our police authorities – including the Ottawa Police Services Board – should be showing leadership in helping to educate the public on the use of force, and encouraging dialogue, no such leadership has been forthcoming. Our group has publicly called in our annual reports for discussion and choices with respect to the use of force. We appear to have been ignored.
9. The police complaints process cannot be separated from the overall governance and civilian oversight of policing. If we do not see independent handling of complaints, then we have great doubts about the effectiveness of the current governance, specifically the Police Services Boards. We doubt their capacity to solve issues of accountability, connection with marginalized and other parts of the community, transparency and managing an independent and even-handed complaints process.
10. We also doubt that, left to itself, the OPSB will develop any strategy for progress on these issues. We have, for instance, called unsuccessfully for regular public audits of police work. We do not doubt that policing is very difficult and can be demanding, dangerous and conflict-ridden. Nonetheless, there must be public and progressive standards against which police operations can be judged and to which they can be held. We have called for policies on aggressive videotaping of demonstrations, for example. (It appears that any videotaping is now more subtle, but the public remains uninformed as to whether this and other practices are subject to such standards.)
11. Finally, we find it discouraging that police dialogue with segments of the community is largely unstructured. Useful models for better dialogue exist – like the current on-going consultation with the gay, lesbian and bisexual community, and with some parts of the multi-cultural community. Frequent meetings are held with community associations. The structure should, however, be extended to the more marginalized segments of society. Moreover, consultations should be used as a means of making policing both integral and accountable to our city and its very diverse elements.


4) A new conflict resolution model

Given the Ottawa experiences we are recommending a reconstituted Police Services Board and an independent Civilian Oversight Authority where the management of the Police Services and the complaints-resolution functions are separated. Our preliminary conflict resolution model comprises a two-step process: an internal hearing in which complainants may appear with representation to present their case, and an external arms-length civilian tribunal system to deal with unresolved complaints. The external system specifically removes all current discretionary powers allocated solely to the Chief of Police to resolve any and all public complaints. Before actually defining this proposed conflict resolution model, it is our opinion that the community needs to be involved in identifying the specific principles and values that will guide the implementation of such a model. We have identified eight principles and values that guide our own recommendations; of course the community as a whole may have others that should also be considered.

4.1) Our Guiding Principles and Values:

1. accountability – As public employees, police must be accountable to the communities that they serve. This should not be an empty or formal accountability, but a meaningful one enforced through processes to which the community has ready access.
2. representativeness – In terms of Police Services Boards this means that due consideration needs to be given to the size and composition of the Board to ensure that they are representative of the communities they serve. In terms of a conflict resolution function, this relates to achieving a balance of representation, not only for the respondent but also for the complainant.
3. independence – Independence from the body being reviewed is a key component of a review process that will enjoy public confidence. Independence also requires that the conflict resolution system be adequately funded and have sufficient authority to manage and conduct meaningful and timely hearings.
4. transparency – To be credible, any review process must be open and transparent to the community, by ensuring that hearings and their dispositions are public, full records of all complaints and their dispositions are maintained, and timely, complete and regular reports are issued to communities.
5. fairness and balance - Everyone’s interests must be seen to be served, including those of both complainant and respondent, and those of the community as a whole.
6. accessibility – Complainants should have easy access to the conflict resolution system, including guidance through the process and representation at hearings. Accessibility also requires the removal of all eligibility criteria or requirements that prevent individuals or groups from filing complaints.
7. effectiveness – In order for a conflict resolution system to be effective, the decision making body must have the power to compel testimony, subpoena documents, impose penalties where warranted, and make systemic policy recommendations. Effectiveness also ensures that pro-active policy review measures are implemented to address the underlying causes of complaints and to improve the overall system of policing.
8. credibility and efficiency – To be credible, the process should be clear, uncomplicated and result in the timely resolution of complaints. Over time, patterns of inappropriate behaviour giving rise to complaints should be identified, and steps taken to deal with what may be systemic problems with policing practices, policies and procedures.


4.2) Practical accountability issues:

1. Conflict resolution structure – To ensure an arms length relationship between the Police Services Boards and the conflict resolution function, we recommend an external hierarchy as follows: the Ministry of Community Safety and Correctional Services, Civilian Oversight Authorities and Tribunals.
2. Citizen access and involvement mechanisms – Currently the internal Police Services conflict resolution function is extremely one-sided. Complainants do not receive assistance to file or to defend their complaints, the type of complaints allowed to be filed is highly circumscribed (for example, third-party complaints are not permitted) and there is no independent investigation and/or appeal process. Rather than removing the existing internal Police Services hierarchy and the function of the Chief of Police, we recommend a two-way model in which the police are not seen to be the investigator, judge and jury of complaints laid against them. In addition, an Office of the Citizen Advisor, similar in concept to the Office of the Worker Advisor under the Ontario Workplace Safety and Insurance Board, should be established to guide citizens through the complaints process and to provide advice and representation as required.
3. Provincial political commitment, provincial resourcing and distant early warning mechanisms – As noted above, it is imperative that mechanisms be implemented to deal with concerns, issues, and problems raised by the public about policing in their communities. These, no matter how apparently minor, need to be addressed and resolved immediately. Therefore it is important to ensure that the conflict resolution system itself serves as the mechanism whereby regulations, policies, procedures, protocols and guidelines governing the police services in our communities are constantly being improved.
 
5) Recommendations

As we have indicated, effective civilian oversight of police cannot be accomplished on a piecemeal basis. A number of elements need to be present, not all of which are part of any specific oversight authority. Adequate resources, for example, and the political will to promote, encourage and defend the institution and its operations, must be in place if it is to carry out its community role. Public education is a further essential ingredient, and citizen involvement, in its broadest sense, yet another. In addition, genuine improvement in policing is dependent upon the police—from the brass to the street—recognizing all members of society as part of the community, and seeking their respect. Finally, the establishment of civilian oversight institutions and practices, if implemented properly, should assist, over time, in bringing about a change in the culture of policing itself, and different, more accountable relations between the police and the community that they serve.

Based upon the foregoing, we submit the following recommendations for your consideration.

1. Recommendation One: that the Government of Ontario amend the Police Services Act to mandate the creation of a two-step citizen complaints system: an internal hearing within the police service at which the complainant may appear with representation, make argument and submit evidence; and, where the complaint is not resolved to the satisfaction of the complainant, an external hearing before an independent, third-party tribunal at the municipal level.
2. Recommendation Two: that municipally-based Civilian Oversight Authorities (COAs) be created, under provincial authority, to manage the complaints process.
3. Recommendation Three: that the new complaints system be readily accessible through an Office of the Citizen Advisor that would provide advice with respect to lodging complaints, guide citizens through the complaints process, make alternate dispute resolution available if requested by both parties, and provide representation throughout to complainants.
4. Recommendation Four: that the Ontario government, in meaningful consultation with community organizations, and in accordance with provincial standards, assemble a pool of qualified individuals to serve on complaints tribunals, who meet basic criteria of neutrality, appropriate expertise and interest in policing issues, and whose numbers are sufficient to permit speedy investigation and resolution of complaints.
5. Recommendation Five: that the independent tribunals have the power to adjudicate third-party complaints.
6. Recommendation Six: that all cases involving the use of force by police shall proceed directly to the tribunal.
7. Recommendation Seven: that, to be effective and credible, the tribunals be empowered to subpoena documents, summon witnesses and compel testimony, to offer redress and impose penalties where warranted, and, where a prima facie case of criminal activity has been made out, to provide all documentation to the Crown Attorney.
8. Recommendation Eight: that the independent tribunals be empowered to hear and rule on "whistle-blowing" complaints within the Police Services, that such complaints may go directly to the tribunal, and that appropriate legislative safeguards be in place to prevent retaliation against complainants.
9. Recommendation Nine: that tribunal hearings be advertised and open to the public
10. Recommendation Ten: that COAs be empowered to conduct regular audits of police services, to make policy recommendations with respect to the day-to-day operations of police services, and to forward these to the Police Services Boards and the Ministry of Community Safety and Correctional Services for action as appropriate.
11. Recommendation Eleven: that complete records of all complaints, including their disposition, be kept and maintained by COAs, with a central registry being maintained by the Province of Ontario.
12. Recommendation Twelve: that COAs issue comprehensive Annual Reports to their communities.
13. Recommendation Thirteen: that the province adequately fund COAs, the offices of the Citizen Advisor and the tribunals in terms of both resources and remuneration, to enable them to carry out their respective roles.

With respect to the management and governance of police services by the Police Services Boards, we make the following additional recommendations:
• Recommendation Fourteen: that the Government of Ontario amend the Police Services Act to expand existing Police Services Boards to be more representative of their communities.
• Recommendation Fifteen: that the mandate of Police Services Boards be widened to include contribution to public education on policing issues by a) hosting and facilitating meetings, called by either party, between neighbourhood associations/community groups and police to air issues, deal with concerns, and resolve problems; and b) issuing reports to the community on a regular basis with respect to their work, cases disposed of, problems resolved, and on-going policy review.
• Recommendation Sixteen: that all policies, procedures, protocols and other guidelines or regulations in place regarding the use of force and the exercise of discretion by police in that respect, be publicly accessible.
• Recommendation Seventeen: That all changes in complaints management and police governance outlined above be subject to a comprehensive review by the provincial parliament after a period of five years.

In conclusion, we believe that the foregoing provides a framework for developing an effective civilian oversight mechanism in Ontario communities. The Ottawa Witness Group is currently conducting research on the strengths and weaknesses of various models of civilian oversight that have been implemented elsewhere, and would be pleased to forward the results of this work at a later date.

Respectfully submitted,

Aileen Leo Paul Durber Marianne MacKinnon John Baglow

For the Ottawa Witness Group
 

Appendix 1: a case study

This recent newspaper report highlights many of the problems with which the Ottawa Witness Group has been grappling in our presentation. The article follows earlier reports of the raid that, among other things, revealed that the police launched an internal investigation only after being contacted by CBC radio.

***************************************************************************

Somalis, police close to settlement

Raid at restaurant led to charges of racism

The Ottawa Citizen Saturday, July 17, 2004 E5

By James Gordon

An out-of-court settlement between Ottawa police and the Somali owners of the Ambassador Bar and Grill is imminent, five months after a raid resulting in allegations of police brutality and racial profiling.

Emilio Binavince, a lawyer for restaurant owners Kazeli Chiteta and Harbi Gabad Mohamoud, confirmed yesterday that the two sides have been quietly working on an agreement through a mediator.

"There will be, sometime over the course of the next few days, some kind of information coming out from both parties," the lawyer said. "There is an agreement with mediators that there should be a joint press release.

"In the interests of my clients, I cannot give any more information at this time," he added.

Terms of any proposed settlement were not disclosed, and Mr. Binavince said nothing is guaranteed yet.

"I think all parties are hoping it will be resolved, and that's what the purpose of mediation is," he said. "If we cannot resolve it through mediation, it will become a litigation matter."

The Jan. 27 raid at the restaurant was a contentious issue with Somali community leaders, who said they no longer trusted police officers and accused them of racism.

It all stemmed from an altercation that began when a snowplow driver pulled into the single-lane driveway the restaurant shares with an [sic] garage at Bank Street and Alta Vista Drive.

According to witnesses, a black man who was visiting the then-unfinished restaurant was driving out and blocked the plow's path. Both refused to move. A heated argument ensued, and supporters of each man poured out of the restaurant and garage. The confrontation died down, but someone placed a call to 911 saying one of the black men had been brandishing a gun.

Both sides denied placing the call. Within minutes, there were reportedly 10 cruisers as well as officers from the police tactical unit on the scene.

At the time, the restaurant's owners alleged police who entered were ordered to "cuff everyone." According to witnesses, the only man who wasn't cuffed was a white contractor.

"I was fully expecting to be cuffed, but I had free rein," woodworker Richard Stockwell said then. "It's because I was the only white guy."

Mr. Mohamoud alleged that an officer threw him against the bar, choked him and wrenched his arm behind his back before he and eight others were taken to Elgin Street police headquarters and placed in holding cells.

Some were released after five hours, some the next morning. None were charged, and no gun was ever found at the bar.

Deputy Chief Larry Hill said yesterday that he'd heard the two sides had reached a tentative agreement, but said he couldn't confirm anything because it was being handled by the professional standards section.

An officer in that section said mediation with police, or alternative dispute resolution, can have many results. This can range from a handshake with both sides walking away satisfied, to large financial settlements.

Staff Sgt. Gerard Sabourin said that in some cases, terms of particular settlements are never released to the public.

"Anything's possible... it's whatever the sides agree to," he said.

***************************************************************************

We note the following:

• a raid took place at a restaurant involving members of the Ottawa Somali community; a number of individuals were held, some overnight, but no charges were laid
• one individual reports being assaulted during the raid
• the one white person present during the raid was not arrested
• an out-of-court settlement is on the point of being reached several months after the raid
• in such cases, the public will usually not be privy to the terms of the settlement
• this means that there will be no general community awareness of what measures were taken or what safeguards, if any, have been put in place to ensure that such incidents are not repeated

An effective civilian review process, which would not have precluded civil action by the individuals involved, nor the above-mentioned out-of-court settlement, would have permitted, in addition:
• a speedy and public hearing before a third party empowered to impose penalties if appropriate
• public awareness of the facts of the case
• public knowledge of what disciplinary measures, if any, have been imposed
• community awareness of what measures and safeguards are (or are not) being put in place to prevent similar incidents in the future
• justice seen to be done, in full view of the community