Good morning. Wendy Cox, B.C. bureau chief, here this morning.
British Columbia’s Independent Investigations Office was formed in 2012, following the recommendations of two public inquiries examining the police-involved deaths of Polish immigrant Robert Dziekanski and the death of Indigenous man Frank Paul. Independent oversight, the inquires concluded, was necessary to remove any conflict of interest that could be perceived when police officers investigate their own.
Wrote a hopeful Justice Thomas Braidwood in his report following the Dziekanski inquiry:
“The proposed independent investigative body can, if properly resourced, perform competently without reliance on police officers to serve as investigators. In my view it must, if it is to address the public’s distrust of police investigating themselves.”
What Justice Braidwood doesn’t appear to have countenanced was the frequent inability of such bodies to get to the truth because the police officers under scrutiny can simply refuse to co-operate.
And they frequently do.
In an in-depth investigation, Nancy Macdonald wrote that in British Columbia, just 2 per cent of the 198 officers under investigation fully co-operated – in other words, sat for an interview and provided notes – with the IIO in the past five years, the poorest record of participation.
Accused officers in other provinces fared slightly better, but participation remained scant: In Manitoba, 12 per cent of the 145 officers under investigation agreed to co-operate fully with Manitoba’s Independent Investigation Unit.
In Alberta, 12 per cent of officers under investigation agreed to be interviewed. The Alberta Serious Incident Response Team told The Globe it does not “track whether a subject officer decides to provide their notes.” They added: “Our investigation will proceed regardless of their level of involvement.”
In Nova Scotia, 15 per cent of officers under investigation fully co-operated with the province’s Serious Incident Response Team. In Ontario, 24 per cent of the 1,106 officers investigated by the province’s Special Investigations Unit agreed to full co-operation.
The reason, lawyers for the officers have argued, is their clients have a constitutional right not to participate in something that will incriminate them.
But no court has been asked to consider this. Nancy notes that the Supreme Court of Canada has come close: In 2013, the high court ruled that police lawyers cannot help officers draft their notes or review them before they are submitted to Ontario’s SIU.
“So long as police officers choose to wear the badge, they must comply with their duties and responsibilities – even if this means at times having to forego liberties they would otherwise enjoy as ordinary citizens,” the court found.
Howard Morton, a Toronto lawyer who headed Ontario’s SIU for three years, says that if he were defending an officer, he wouldn’t let them sit for an interview. But he told Nancy the problem is the law. Police officers are different from you and I, he noted.
“They carry a gun. They can pull you over on a whim. They can detain you.” There have to be special responsibilities that come with that, he adds, including explaining what led an officer to fatally shoot someone.
André Marin, also a previous director of the SIU, argued for a simpler solution: Officers who refuse to co-operate should not be allowed to continue to interact with the public.
“You can work desk duty or in administration. But you rescind your right to be an officer. You can no longer carry a gun.”
This is the weekly Western Canada newsletter written by B.C. Editor Wendy Cox and Alberta Bureau Chief Mark Iype. If you’re reading this on the web, or it was forwarded to you from someone else, you can sign up for it and all Globe newsletters here.