Ian D. Scott is a lawyer working in the areas of criminal and administrative law. He has served as both a Crown prosecutor and defence counsel, and spent five years as Director of Ontario’s Special Investigations Unit.
This article is part of a series of interviews with advocates, legal thinkers, community organizers and academics on issues related to Canadian civil liberties produced by CCLA volunteers. All responses are the interview subject’s own, and do not necessarily represent the viewpoint or positions of the CCLA.
CCLA: You spent five years as Director of Ontario’s Special Investigations Unit (SIU) where you oversaw all investigations into incidents of serious injury and death, as well as allegations of sexual assault, involving on-duty police officers in the province. What sort of insight into the state of policing in Ontario were you able to glean from your position as Director?
IDS: Ontario is fortunate to have an independent body to investigate these types of serious incidents involving the police. The province became the country’s leader in police oversight when it established the SIU almost twenty-five years ago. There was a great deal of institutional resistance from the police against the SIU during its first decade of existence, but I think most policing agencies have come to accept its role over the years, and realize that the public will simply not accept the prior model of ‘police investigating the police’ with respect to these serious incidents.
CCLA: On several occasions, the SIU has been the target of criticism, whether it be from the media, the Ontario Ombudsman or elsewhere. Briefly describe the SIU’s function and whether you think it effectively serves its purpose or whether it should be altered in any way.
IDS: The function of the SIU is to conduct thorough and independent investigations when on-duty police officers are involved in incidents leading to death, serious injury of are subject to sexual assault allegations. The focus of the investigations is solely criminal. After an investigation is completed, the Director decides whether there are reasonable grounds to believe a criminal offence took place. If he or she reaches that conclusion, a charge is laid, and the matter is prosecuted by the Justice Prosecutions branch – an arm’s length agency – of the Ministry of the Attorney General.
I think it effectively serves its purpose in the sense that the investigations are conducted by independent investigators with no prior employment relationship with the police agency in question, and the Unit is led by a civilian with a background in criminal law. Given the nature of the investigations – serious allegations against agents of the state – the Unit will always be a lightning rod for criticisms from both the community and the police. Frequently either the complainants or their family on the one hand, or the policing community on the other, will not agree with the outcome of an investigation. However if the investigations are thorough and the reasons for the decision are explained, I think the majority of the public will agree that the SIU represents the most effective way to address these difficult issues.
Could it be improved? Yes, I think so. In an article I wrote entitled ‘Reforming Ontario’s SIU’, published in the October 2013 edition of the Criminal Law Quarterly, I make a series of suggestions to improve the SIU. My recommendations included:
witness officers attend SIU interviews without a lawyer;
subject officers’ notes created before the SIU’s mandate is invoked be produced to the SIU;
the SIU be accountable to the Legislature;
the definition of ‘serious injury’ be legislated; and,
the SIU Director have the authority to refer matters to the Ontario Civilian Police Commission.
CCLA: What is the most significant contribution you feel you made to the SIU during your time as Director and what would you describe as the most significant challenge your successor, Tony Loparco, faces?
IDS: I believe my involvement in the Schaeffer v. Wood case is my most significant contribution. In December 2013, the Supreme Court of Canada ruled that officers have no right to consult with counsel before they write up their notes in SIU investigations. This decision is important because it means that the SIU (and any other reviewing agency) can place more reliance on the contents of officers’ notes because they will be written independently without any external input.
In terms of the most significant challenge facing my successor, I believe it to be the same one I faced: facilitating public confidence in the SIU by ensuring the investigations are thorough and independent, and communicating those decisions to the public in a timely fashion.
CCLA: In your opinion, how effective have other mechanisms, like legislation and the courts, been at providing oversight of policing?
IDS: There are numerous other mechanisms in this province. The Office of the Independent Review Director (OIPRD) – in existence since 2009 – oversees all public complaints. Civil litigation has changed the nature of policing in Supreme Court of Canada decisions such as Hill v. Hamilton-Wentworth Police Services Board and Odhavji Estate v. Woodhouse. Further, inquests and royal inquiries examine incidents involving police action. And police services boards are statutorily mandated to prescribe policy to their police services. Also, video imagery as captured by social media are an immediate form of citizen oversight. It is difficult to know how effective any of these mechanisms are at providing oversight without addressing a specific issue, but overall, there are processes available in this province to address police misconduct concerns.
CCLA: Some would argue that there is a great distrust of police amongst certain segments of the public, particularly visible minorities and youth. Is that distrust misplaced and if so, what in your opinion is needed to increase public confidence in police forces and policing more generally?
IDS: A 2010 EKOS poll supports the conclusion that there is softening of public confidence in policing, particularly among younger Canadians. And recent articles in the Toronto Star indicate that carding affects visible minorities to a greater extent than other citizens in Toronto. With respect to the role of oversight agencies, public confidence in policing can be increased by police management publicly acknowledging the role of civilian oversight, as represented by police services boards, the SIU and the OIPRD. On a specific level, public confidence could be increased by the use of body-worn cameras that captures all police-public interaction.
CCLA: If you could change any one thing about current police practices, what would it be and why?
IDS: Under our current public complaints system, all of the adjudications of police disciplinary matters are heard by a designate of the chief of police of the affected police service. Typically, a senior officer within the service hears the evidence and rules on the complaint. Sometimes an outside adjudicator is chosen but the decision of when this happens and who the hearing officer would be resides in the hands of the police chief. A change that would facilitate public confidence in the public complaints system would be to give the Office of the Independent Police Review Director the authority to have public complaints adjudicated by an independent civilian body. Under the former public complaints system that was repealed in 1997, the Public Complaints Commissioner had the power to strike a Board of Inquiry composed of civilians. When the current public complaints legislation was passed in 2007, it did not contain this provision. In my view, the public complaints system would benefit from hearings before civilians in those rare cases where the Independent Police Review Director deems an allegation of police misconduct to be of such a serious nature that its adjudication should be removed from control of the affected police service.