Peel Police Services Board: Gerry McNeely, Director, Independent Police Review Office (and the Ontario Ombudsman)

May 4th, 2011  

On January 23, 2008 Mr, Gerry McNeely, Director, Independent Police Review Office introduced himself to the Peel Police Services Board and explained his role in implementing Bill 103, Independent Police Review Act, 2007.

Note that Mr. McNeely’s presentation including question and answer session was 19:37 minutes long and edited to fit as closely as possible into Mississauga Council 10 minute deputation time-frame. Throughout Mr. McNeely’s presentation, the microphone kicked in and out resulting at least some of the time in a hiss-pop-crackle audio track.

It is what it is.

This video was shown at today’s Mississauga General Committee meeting as an information item. MISSISSAUGAWATCH will submit this blog entry into the May 4, 2011 Council meeting minutes. As is now our practice we provide this video, followed by the transcript.

Peel Police Services Board: Gerry McNeely, Director, Independent Police Review Office (10:24 min)

(Click here to go directly to the clip on YouTube)

[VIDEO TRANSCRIPT]

Gerry McNeely Director, Independent Police Review Office (Peel Police Services Board meeting January 23, 2009)

First I waned to say that I’m hoping to carry out my duties and my responsibilities in an extremely collaborative manner. I’m hoping to create a relationship with police boards, police chiefs, police associations and obviously, members of the large public that I’m obligated to provide services to.

[DIP TO BLACK]

My role is to implement Bill 103 to deal with conduct complaints against police. But I see that role as one, to try to firstly to continue to increase and improve what I say is the great trust and confidence that most Canadians and most Ontarians have in police and policing.

[DIP TO BLACK]

90% of Canadians have great trust and confidence in police and policing so we’re talking about my focus being 10% of the general public that have some concerns.

[DIP TO BLACK]

We will develop clear criterias [sic]. [microphone comes on] Now you can hear me. We will develop very clear criterias [sic] to do so and that will be made known to everyone. And that is part of the transparency that I’m talking about.

So there will be very tight criterias. [sic] I’m still working on them. But there’s a level of understanding in administrative law and other areas as to the interpretation and the standards for vexatious etc and we’ll be looking at those and applying them very similarly.

I should advise you though that it is my intent that —and I’m trying to tell chiefs, don’t disband the Professional Standards Branches, they have a lot of work to do. Because I intend to send as many complaints back to the original Police Services as possible to continue to deal with.

The difference is, I will be overseeing it to some extent and because I have to be notified at the start and I’ll be there at the end.

So that’s a real difference but generally the bulk of investigations and dealing with complaints will be dealt with at the local level. And, but I’ll be making those extremely clear in regards to the policies and procedures that will be implemented.

[DIP TO BLACK]

Jim Murray, Vice Chair (Peel Police Services Board meeting January 23, 2009)

Are you going to try to establish a level of complaint that would become on your radar, if you will, in a more concentrated fashion? And complaints below that level would be handled, continue to be handled, in-house? Is that your intent?

Because if you replicate the number of complaints across the province, if you don’t, you’ll have an enormous organization that will probably never get from here to there.

It’s a tough job.

Gerry McNeely Director, Independent Police Review Office (Peel Police Services Board meeting January 23, 2009)

Thank you for that observation, I agree with you. I did not anticipate it was gonna be this tough when I took the job. As after six months I’ve come to that realization but, to answer your question, I’m not going to establish necessarily the categories of level of complaints.

Every complaint we will look at seriously. That is one of the things the community is saying. They want to make sure what if they make a complaint that it’s taken seriously. So we will take it seriously. We will screen it. We will categorize it.

As I’ve indicated, most of the complaints will go back to the original service and will be surely-monitored through the process. There are some complaints for specific reasons, I may choose to send to another service to be investigated. And I’ll do that in consultation with the originated chief, if I can call it that and the chief that I’m going to send it to.

If I can give you an example.

If we were to look at a smaller police service, not Peel, and there may be a number of officers involved so there may be conflicts, I would like to err on the side of caution and call Chief Metcalf and say, you know, Chief, I’d like to send this to you to investigate.

So when will I determine that my office will keep a complaint? Similarly there has to be some over-arching concern that has come to my attention that I would want to do it. It may involve a senior-ranking officer.

So I have not totally established those categories and I’m not going to be rigid of them because I want to look at them on a case-by-case basis. Because something that may at first blush may appear to be something that I may want to retain, after I’ve done some preliminary investigation, [inaudible], you know what this is really not necessary. And I’ll send it back to the original chief.

So those things will be looked at in a case-by-case basis bearing in mind that every complaint, I’m going to consider it to be a serious complaint.

[DIP TO BLACK]

In the first year or two you’ll see a spike of complaints —about 25 to 30 percent increase and then it tapers off again back  to where it came from.

So that spike may necessitate some more investigations by local chiefs but I don’t see it as creating a huge budgetary strain on the service at the same time. But as I said, I intend to send most —80 percent back to the originating chiefs to be dealt with. Which to some extent is what’s being done now, except there will be a little spike because of the newness of the program.

Emil Kolb, Chair (Peel Police Services Board meeting January 23, 2009)

Well, as I said to you previous [sic], on behalf of this board, I may not, I think we really do believe in being proactive and if training is an issue  and you see things that we can do different [sic] or suggest what we might do different [sic] in our training, I think from this board you’ll have a lot of support for those kinds of issues.

Because that’s really what makes you more sustainable in your operation and your budget and if we can resolve that process, by in the training process, then I think you’ll get a lot of support from this board and from our chief management team also. So thank you for mentioning that.

Gerry McNeely Director, Independent Police Review Office (Peel Police Services Board meeting January 23, 2009)

Thank you for those words, Mr. Chair, and I really appreciate that.

[DIP TO BLACK]

Peel Regional Police Chief Mike Metcalf (Peel Police Services Board meeting January 23, 2009)

I just want to touch on a brief point and just mention it. It’s what we refer to as walk-in traffic. If a citizen comes into one of our divisions and gets an audience with the staff sergeant —and it might be a point of law, it might be a point of procedure, and it’s resolved. And the individual walks out happy because it’s all been explained to him.

Is this something you expect us to report?

How is the commission going to deal with that?

MISSISSAUGAWATCH whispering into camera (Peel Police Services Board meeting January 23, 2009)

Good question.

Peel Regional Police Chief Mike Metcalf (Peel Police Services Board meeting January 23, 2009)

I know we touched on it briefly.

MISSISSAUGAWATCH whispering into camera (Peel Police Services Board meeting January 23, 2009)

Very good question.

Peel Regional Police Chief Mike Metcalf (Peel Police Services Board meeting January 23, 2009)

Maybe you’re had seconds thoughts. (chuckles)

Gerry McNeely Director, Independent Police Review Office (Peel Police Services Board meeting January 23, 2009)

I’m hoping that that process you’ve just described, Chief, we’ll refer to as an” inquiry”. Coming out of that inquiry, if someone walks in and needs some clarification, and you know, someone walks often time people say, you know, I have a complaint but I really don’t want to make a complaint, right? Because it’s really not a complaint —it’s an inquiry.

You know, I got a ticket and, you know, it says I was going 60 in a 40 zone and the sign says 50, I don’t know. It’s really an explanation they’re looking for. That, I’m hoping to have us term as an “inquiry” and I’m hoping that it will be dealt with and that it will be dealt with at the station at the Service.

And all that I would need out of that is some basic information —I don’t need a complaint out of that or form out of that. [inaudible]

Then the next stage is someone comes in and say [sic] I want to make a complaint, we’re going to call that, we’re going to try to change the terminologies. And one of the terminology[sic]  that people tell me is confusing to them is “informal resolution”.

Now the legislation talks about it but hopefully through a regulation I’ll be able to say “informal resolution means any one of the following” and I’m hoping to call those a “local resolution”. So to try to resolve it at the local station or local service.

And so, to take, there will still— And the person still has the option of filing a complaint. But if they choose to go into this local resolution process, they’ll sign a document (that will) say that “I know I can file a complaint but I’m choosing to do this instead.” And again, that’s the only form that I really needed.

So, I don’t know if I answered your question, Chief.

Peel Regional Police Chief Mike Metcalf (Peel Police Services Board meeting January 23, 2009)

You did. You do want us to report it.

And I guess that’s— I would suggest then that the complaints are going to go up more than 25 percent. Because I think we deal with a lot at the divisions and really Mr. McNeely, with respect, we have to, at some point, deal with the paperwork —the amount of work that’s put on our staff sergeants and our sergeants for an issue that’s just clearly a misunderstanding between the citizen and the officer involved.

You know, an inquiry or a complaint, you know, I really find that difficult, I really do.

Gerry McNeely Director, Independent Police Review Office (Peel Police Services Board meeting January 23, 2009)

And I appreciate that, Chief and I’m being cognizant of that. But my understanding is someone walks in and makes those inquiry [sic], there’s still a note made somewhere and I’m asking basically for the same information of that desk note that’s made. I’m not asking for anything different.

And so I’m cognizant of exactly what you’ve indicated about the increase in workload and my intent of not to do that. So the information I’ll be seeking is no different than the sergeant making a note at the desk that John Doe came in and we talked.

Peel Regional Police Chief Mike Metcalf (Peel Police Services Board meeting January 23, 2009)

It might be something as simple as a notebook entry.

Gerry McNeely Director, Independent Police Review Office (Peel Police Services Board meeting January 23, 2009)

That’s right.

Peel Regional Police Chief Mike Metcalf (Peel Police Services Board meeting January 23, 2009)

Thank you.

Emil Kolb, Chair (Peel Police Services Board meeting January 23, 2009)

Okay, any other questions? Staff? No?

Again I want to thank you very much for taking the time to come out….

[VIDEO TRANSCRIPT ENDS]

ADDITIONAL RESOURCES: OUR ONTARIO OMBUDSMAN

MISSISSAUGAWATCH ATTENDS "SHARPEN YOUR TEETH III" CONFERENCE/WORKSHOP ONTARIO OMBUDSMAN'S OFFICE  (December 2, 2009 am)

Speech. Bill 103: quis custodiet ipsos custodies?

André Marin, Ombudsman of Ontario
Submissions to the Standing Committee on Justice Policy respecting Bill 103, An Act to establish an Independent Police Review Director and create a new public complaints process by amending the Police Services Act,
Toronto, January 30, 2007.

1 The government of Ontario deserves credit for introducing Bill 103, which reforms the police public complaints process and establishes the office of the Independent Police Review Director, a new police oversight agency with wide-ranging powers to oversee and investigate police complaints.  Independent civilian oversight of the police enriches democracy by enhancing accountability.  It also encourages our constabulary to constantly strive for best practices.

2 The new government body, however, is just that – a government body.  No matter how independent or arm’s-length of the rest of government it may be, it still reports back through a boss who is part of the executive branch of government.  In Ontario, we are fortunate enough to have an office reporting to the Legislative Assembly which provides independent oversight of all government bodies.  Since 1975, all provincial ministries, boards, commissions and agencies have been under the purview of the Ombudsman of Ontario, an officer of the Provincial Parliament.  For over 30 years, the approach to oversight and accountability in this province has been principled, consistent and predictable.  The Ombudsman has been there for tens of thousands of Ontarians, overseeing government involvement in every aspect of their lives, from womb to tomb, from cradle to grave, and standing up for them when they encounter problems.

3 But the Office of the Ombudsman won’t be there for anyone who might want to complain about the workings of this powerful new government body.  As parliamentarians, that should disturb you.  You should ask yourselves what causes the government to create an exception to this rule.  What is the overriding and overarching principle that would support parking the province’s main accountability vehicle at the door when we are talking about a new police review body?  I can think of no such principle.

4 In that same vein, you should also ask yourselves: “If not the Ombudsman, who will oversee this new agency?”  Indeed, the history of police complaints bodies in Ontario is not a happy one and cries out for oversight.  It is a history replete with allegations of bias, plodding bureaucracies and inefficiencies.  These bodies have come in and out of vogue over the years, like the flavour of the month.  We can only hope that history will not repeat itself.  But if it does, who will investigate this new super-agency?  Quis custodiet ipsos custodies: Who will guard the guards themselves?  Who can the police or the public turn to if someone is dissatisfied with the delicate decisions this government body will make regarding complaints against the police?

5 The answer is no one.  Buried deep in the entrails of the Bill is a particularly troublesome provision, section 97.  Remarkably, section 97 of Bill 103 states, “The Ombudsman Act does not apply to anything done under this part.”  This section effectively prevents the Ombudsman – and by extension the Legislative Assembly – from overseeing how this government body conducts its business of investigating complaints.  This, in my view, is a grave flaw that must be addressed and corrected.  It is bad news for the public in general and bad news for police in particular, who would otherwise enjoy the benefits that come with independent oversight by an officer of parliament.

6 Let me put it in context.  The Independent Police Review Director will be a potent arbiter of disputes between citizens and the police, with extraordinary authority – including the ability to issue summonses, enter premises and seize evidence.  The Director will wield tremendous power over chiefs of police, all Ontario police officers and, of course, citizens who complain to him or her, but will enjoy a privileged enclave accountable only internally to the Attorney General of Ontario.  No court can reach into the Director’s filing cabinet; no court can receive the Director’s testimony or try the Director civilly.  No complaint about the processes, practices and policies of the Director’s office can be independently investigated or resolved through shuttle diplomacy, and no recommendations can be made for reform in cases where a complaint against the Director is valid.

7 As I stated at the outset, in Ontario, by default, every provincial government organization, whether it’s the Ministry of the Attorney General, the Special Investigations Unit, the Coroner’s office or even the soon-to-be-reinvigorated Ontario Human Rights Tribunal, is subject to the statutory oversight of the Ombudsman, who is an officer of the Legislature.  It is the legislated function of the Ombudsman of Ontario to investigate and to make recommendations if a government body conducts its business in a way that is contrary to law, unreasonable, unjust, oppressive, improperly discriminatory or just plain wrong.  However, the Independent Police Review Director has been sheltered from this external and effective oversight.

8 Coming back to the fundamental question for you to ask yourselves as parliamentarians, what public policy would justify the removal of this government body from being accountable to you through the office of the Ombudsman?  Why should there be two different accountability regimes for the provincial government – one for the police complaints body and one for everybody else?

9 I have monitored with interest the debates in the Legislature over section 97.  A member of the Legislative Assembly, speaking on behalf of the government, justified the section’s existence on the basis that a similar provision existed in 1990 and, in any case, oversight still exists in the form of judicial review if someone’s not happy with the decisions of the new Director.  My answer to the first argument, with the greatest of respect, is: So what?  If the whole rationale for passing this legislation is to provide a new complaints commission from the ground up, why would you feel compelled to hang on to a relic from the failed past?  Why allow a provision that should not have been there in the first place to somehow muddle the present?

10 The exclusion of the Ombudsman in the Police Services Act is in fact an accident of history, carried over from the time when a police oversight body was initially created on a pilot basis for the Metropolitan Toronto Police in 1981.  At that time, one of the primary reasons for excluding the Ombudsman was the municipal nature of the police force.  When civilian oversight of police was extended throughout the province in 1990, this provision was simply replicated.  It has existed not for sound public policy reasons, but solely by happenstance.  It has managed to cling on, unchallenged, from one era to the next, from one Police Services Act to the next.

11 The Honourable Patrick J. LeSage’s April 2005 Report on the Police Complaints System in Ontario, commissioned by the government of Ontario, speaks for itself.  At no time does the report recommend a break from the provincial accountability regime or the role of the Ombudsman in providing oversight on behalf of the Legislative Assembly.  If, somehow in your deliberations, this honourable committee’s final judgment on Bill 103 hinges on whether or not, as has been suggested by a government member, Mr. LeSage really intended for the Ombudsman to retain oversight of this body, I would suggest you invite Mr. LeSage to come forward and testify before you.  You will then be able to ask him the very question I have put to him and satisfy yourselves as to what he truly intended.

12 As for the argument that you don’t need Ombudsman oversight because you can always go to court, this, with respect, is a red herring.  You can always bring to court any government body on a myriad of issues.  It’s not a substitute for the role of the Ombudsman.  Going to divisional court is a narrow and technical affair, a costly enterprise and an adversarial process. Upon reflection, I am sure you will agree with me that that is not the answer you would want to provide to constituents who are unhappy with the course of their complaints to the Independent Police Review Director.

13 You might be asking yourselves what happens in other provincial jurisdictions when dealing with oversight of police complaints.  In Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Quebec and Saskatchewan, either the provincial Ombudsman or another specialized Officer of Parliament has jurisdiction to intervene.  In all of these jurisdictions, their respective legislative assembly retains the power and ability to involve itself in the investigation of complaints against the police through an officer of Parliament.  If this bill passes, Ontario will have the dubious distinction of being the only jurisdiction where police complaints are outside the reach of parliamentarians.  It behooves you to not let that happen.

14 What can you do?  Simple: Delete section 97 from the Bill.

—André Marin, Ombudsman of Ontario

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