"This pissing match is the kind of thing that causes the public to lose confidence in the administration of justice." - André Marin, Ontario ombudsman
A recent public spat involving the Toronto police and two provincial cop watchdogs has resurrected calls to fix an oversight system that critics say is badly broken.
The outspoken ombudsman of Ontario, André Marin, doesn't mince words when describing the feud, which centred around allegations that an officer beat a man during his arrest outside a Toronto nightclub last July. Marin calls it "a pissing match."
"I think they should all be embarrassed," says the ombudsman of the agencies involved. "This is the kind of thing that causes the public to lose confidence in the administration of justice."
The fight erupted after alleged victim Tyrone Phillips filed a complaint with the Office of the Independent Police Review Director last August. The OIPRD, which is not authorized to investigate criminal allegations, forwarded the complaint to the Toronto police. The force then referred the matter to the Special Investigations Unit, the provincial body that investigates any police incident that results in the serious injury or death of a civilian. But the force withheld Phillips's written complaint.
The SIU requested the complaint from the TPS, but the police refused, saying they couldn't hand it over because it technically belonged to the OIPRD. Finally, on January 2, five months after the alleged arrest incident, SIU director Ian Scott issued a press release announcing that he had no choice but to close his investigation because the cops would not cooperate.
Police spokesman Mark Pugash fired back with a blunt press release of his own. "Director Scott is wrong," he wrote, asserting that the force had no authority to hand over a complaint that was filed with the OIPRD.
After the story hit the news, the OIPRD said it could release Phillips's complaint, but only to Phillips and only if he asked for it. Phillips did so and then gave it to the SIU, which reopened the probe. Scott closed it a week later without recommending charges.
The tense relationship between the police and the SIU goes back a long way. Since 2008, Marin has written two scathing reports about Ontario police forces' unwillingness to work with the agency.
The second one, which came out in 2011, found that the Toronto Police Service is among the most unresponsive forces in the province: over a three-year period, the SIU sent Chief Bill Blair 82 letters raising concerns about his officers' lack of cooperation, and he answered none of them.
Pugash says the force has no beef with the SIU and cooperates whenever it's able, but he believes Scott often tries to exercise greater authority than the SIU's mandate allows.
"I think we get done what needs to get done," Pugash says. "It's not for me to give my impression of the relationship. Clearly, there are things with which we disagree, and when we disagree we will make that point."
But Marin doesn't blame only the police for stalling the Phillips case. He also has questions about the OIPRD and the SIU. Namely, why didn't the OIPRD inform the SIU that Phillips could simply ask for a copy of his complaint? And why was the SIU so quick to shut down its probe when it met resistance from the force?
"If [the TPS and OIPRD] had done their job, the job would have gotten done, because the SIU can't do this by itself," Marin says. "That said, I think the SIU moved precipitously to close the investigation [the first time]."
No matter which organization is at fault in this instance, says the ombudsman, police oversight will never be effective unless the SIU is given the power to compel officers who are under investigation to cooperate, on pain of serious fines or even jail time. That would require an overhaul of the Police Services Act, the legislation under which the SIU is constituted.
An opportunity to make such changes could come later this year, when the attorney general's office undertakes a review of the SIU. The scope of that review, which was recommended by the 2011 LeSage Report, has yet to be determined, according to ministry spokesperson Brendan Crawley.
But Crawley says legislative changes are among the issues that "will be given careful consideration."
Mike McCormack, head of the Toronto Police Association, says his union would oppose any changes that would force subject officers to submit to interviews with the SIU, on the grounds that it would be a violation of their Charter rights.
"Those rights apply to police officers," McCormack says. "I don't think you can pick and choose and say one sector of the public's rights can be usurped easier than another."