Ontario Ombudsman André Marin says the Special Investigations Unit’s failure to adequately oversee police in the province is “devastating” to the public’s confidence in the justice system.
“The SIU is the ultimate tool of accountability for the police and the police have to have the confidence of the public to operate,” Marin, who last week released a scathing report on the unit, tells Law Times in an interview. “Right now, the report uncovered, the SIU has been somewhat two-faced about its operations.”
Marin says the SIU is “fearful and frightened, timid and intimidated.” He suggests the unit’s success has been measured, both internally and by the Ministry of the Attorney General, in terms of avoidance of controversy.
“They are, and in the end it undermines the confidence of the system in the SIU, and ultimately the confidence in our police,” says Marin.
The 121-page report, titled “Oversight Unseen,” revealed that the unit doesn’t work fast enough, fails to fully investigate allegations, is unable to force police co-operation, and employs too many ex-cops.
The report came with 45 recommendations to the SIU, AG’s office, and provincial government to improve the unit. Included is a call for new legislation to strengthen the SIU and a number of changes to the unit itself in order to shake the public’s perception that it is biased in favour of police interests.
Marin also wants SIU directors’ complete reports made public, and says the law should be amended to make it illegal for police to fail to obey the unit’s requests during investigations.
Criminal Lawyers’ Association president Frank Addario says police have never accepted the idea of civilian oversight. He echoes Marin’s opinion that legislation must be amended to force police to comply with SIU demands.
“If the government is unwilling to do that for fear of alienating police interests, it should scrap the legislation and not hold out its promise,” Addario tells Law Times.
One major hurdle the SIU has faced, said Marin in the report, comes from provisions in the Police Services Act outlining the task for laying a charge against a police officer. The act - which, Marin added, is the SIU’s “sole constituting authority” - states that the director of the SIU “shall cause informations to be laid against police officers” and refer the matter to the Crown attorney for prosecution.
“That runs counter to all common-law principles of charge laying, where there’s always a residual discretion,” Marin tells Law Times. “Because of that rigid provision of the act, I think the SIU has probably - even though the charge rate is very low - overcharged in the sense that it has not been able to exercise the discretion that normally accompanies the decision of a peace officer.”
Marin has urged the government to re-insert that discretion into the act.
Marin also says the AG needs to create more space between its own operations and those of the SIU.
“The AG’s office has been way too cozy with the SIU,” he says. “It has not allowed it to flourish, has not provided sufficient support to its independence, from the beginning has been micromanaging the SIU. That hasn’t allowed the SIU to do its job.”
The AG announced a number of steps it plans to take in response to Marin’s report. It has earmarked $700,000 for eight new SIU staffers, and an unspecified amount of money for a “mobile investigative centre” to give the unit an independent presence at crime scenes.
The AG also will follow Marin’s call to appoint SIU directors to fixed, five-year terms, and plans to report back to the ombudsman every six months on implementation of his recommendations.
“I would like to thank the ombudsman for his report, as well as the community groups and police organizations who shared their ideas on how to improve the system,” said Attorney General Chris Bentley in a prepared statement. “I have confidence in the leadership and the men and women of the SIU. I also have confidence in the police officers who work hard every day to keep our streets safe.”
This latest report marks the seventh time the SIU has been investigated since its creation in 1990 to counter public discomfort with police investigating their own actions. Marin, who led the SIU for two years in the late 1990s, said in the report that governments tend to focus on the unit’s shortcomings only during brief stints following controversy. That approach of acting “reflexively” has stunted any meaningful progress, said Marin.
It will largely be left to Crown lawyer Ian Scott, who last month was named successor to James Cornish as SIU director, to right the sinking ship identified by Marin. Scott was called to the bar in 1983 and has practised criminal law and administrative law, acting both as a Crown counsel and defence lawyer throughout his career.
Scott isn’t talking to media regarding his new position until officially assuming his post Oct. 16.
Marin also declined to comment on the new director.
Addario - who says Scott is a “terrific lawyer and he’s dedicated to neutrality” - suggested it doesn’t matter who the director is if the government won’t provide new legislative powers.
“A number of very good people have been through the [SIU] director’s role without significantly altering the success rate of the SIU in establishing itself as a neutral, effective, civilian oversight body,” he says.
Ontario Bar Association past president James Morton says Marin’s report overstates the SIU’s shortcomings.
“My sense is there may be a little more colour in his language than is necessarily justified by the facts themselves,” says Morton. “My experience with people who have had run-ins with the police
. . . when you get to the bottom of what actually happened, certainly force was used to subdue them, but candidly, in the circumstances it was appropriate.”