Conducted Energy Weapons and Selected Police Complaints Audits — Issue No. 10

SPECIAL COMMITTEE TO INQUIRE INTO THE USE OF CONDUCTED ENERGY WEAPONS AND TO AUDIT SELECTED POLICE COMPLAINTS

Present: Murray Coell, MLA (Chair); Kathy Corrigan, MLA (Deputy Chair); Eric Foster, MLA; Gordon Hogg, MLA; Leonard Krog, MLA; John Slater, MLA; Joe Trasolini, MLA

2. The following witnesses appeared before the Committee and answered questions:

• Mike Macdonell, Assistant Auditor General, Quality Assurance, Strategies and Administration

3. The Committee recessed from 10:43 a.m. to 10:48 a.m. and from 12:02 p.m. to 12:18 p.m.

4. Resolved, that the Committee meet in-camera to deliberate on its draft report to the House. (John Slater, MLA).

The following electronic version is for informational purposes only.
The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO
INQUIRE INTO THE USE OF CONDUCTED ENERGY WEAPONS AND TO AUDIT SELECTED POLICE COMPLAINTS


CONTENTS
Page
Briefing: Police Act, Part 11	143
J. Doyle
M. Macdonell
S. Lowe

M. Coell (Chair): Thank you all for being here. Today we have a number of witnesses — the findings of the Auditor General, as well as response from the Police Complaint Commissioner, among the first — as well as report deliberations at the end of that.

I'd first like to welcome the Auditor General. John, thank you very much for the work that you've done. This committee greatly appreciates you making your offices available to the committee for this report, and I'll turn it over to you.

Effective and fair policing is essential to a safe and secure society, but the enforcement of law and order can be a tough job, sometimes involving conflict. Nevertheless, police work must be conducted within boundaries established through rules and the law.

Essential to ensuring respect for the work of the police, as well as ensuring confidence in the justice system as a whole, is an effective mechanism for receiving, processing and, where called for, investigating complaints against the police. Effective oversight and accountability for fair resolution of police complaints is critical to maintaining both public confidence in the integrity of police services and the trust of police officers.

Last week the Ministry of Justice provided an overview of the history behind part 11 of the Police Act. As you heard, in 2010 the act was subject to a significant number of changes relating to complaints against the police. Amongst those changes was the requirement for an audit to be conducted respecting the outcome or resolution of randomly selected complaints and investigations carried out under the act.

On September 5 of this year I was appointed by this committee to begin this audit work, and a formal letter of engagement was then signed by both the Chair and the Deputy Chair. This left us with a rather short amount of time to learn about the police complaint process, plan and conduct the work and report back to you. But I'm pleased to report that we have actually carried out this work and that it's complete.

With me today to present the results of our work are Assistant Auditor General Mike Macdonell and, to his left, Peter Nagati, who was the project director. With us in the gallery is the rest of the audit team — Jacquie McDonald and Phil Hancyk.

The Auditor General's compliance audit opinion and a short summary report were made available to the committee late last week. You should have hard copies in front of you, I've been assured.

Before getting started, I'd like to take this opportunity to thank Commissioner Lowe and his staff for their cooperation and the assistance they provided during our audit. My staff enjoyed full, unfettered access to the commissioner's files and staff. As John mentioned, time was short. The assistance of the commissioner's staff was essential to ensuring we were able to complete our work on time.

As specified in the engagement letter, we performed an audit to determine whether the outcome or resolution of randomly selected complaints and investigations concluded between April 1, 2010 and August 31, 2012, were, in all significant respects, completed in compliance with part 11 of the Police Act.

Accordingly, our work focused on answering three main questions. Are police complaints addressed in compliance with the act? Does the Police Complaint Commissioner promote thorough and competent investigations of police complaints by exercising discretion, as provided by the act? And has the Police Complaint Commissioner taken steps consistent with the act to ensure increased public awareness and to ensure complaints are treated fairly and receive proper assistance when making complaints?

The Auditor General has concluded that complaints processed and investigations concluded over the period April 1, 2010 to August 31, 2012, were, in all significant respects, completed in compliance with part 11 of the Police Act.

It's important to note our use of the term "in all significant respects" because it recognizes that there may be minor instances of non-compliance that may not be detected by the audit or that are detected but are not considered worth inclusion in the audit report. It's also important to note that the Auditor General's opinion provides reasonable, not absolute, assurance. The conclusion is based on a statistically valid sample of complaint and investigation files, not an examination of all files.

As I just stated, we found that police complaints have been addressed in compliance with the act. However, most investigations were not completed within the six-month time frame specified in the act. Instead, they were completed within time extensions granted by the commissioner. The granting of extensions is provided for in the act, but while we conclude that there has been substantive compliance, the fact that only 45 percent of the investigations in our sample were completed within six months suggests that investigations are not being com-
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pleted within the time frame generally intended.

Consequently, we recommend that the Office of the Police Complaint Commissioner work with police professional practices staff to identify and address challenges associated with achieving the six-month time limit established for completion of investigations as specified under the Police Act.

In addition to our overall conclusion on compliance, we found that the commissioner exercised discretionary authority, as provided by the act, to direct departments to officially document complaints, including those that did not result in a formal complaint being registered. Evidence also shows that the commissioner directed external investigations to be conducted when deemed in the public interest.

We also found that the commissioner reviews discipline authority decisions and exercises independent power to appoint a new discipline authority if, in the commissioner's opinion, he's not convinced that the conclusion of an investigation is correct.

We also found that the Office of the Police Complaint Commissioner has endeavoured to foster public awareness of the police complaint process and individual complainant rights under the act. Guidelines and forms have been developed for police detachments to follow when handling and processing complaints.

Finally, the OPCC has established a list of support groups that may be contacted to provide assistance with complaints.

However, there is no formal monitoring or training provided to detachment staff to increase assurance that individuals wishing to make a complaint are not harassed, coerced or intimidated when questioning or reporting police conduct or making a complaint. Although we found no evidence of any in-person complaint being received inappropriately, it's our view that this is an area for potential improvement.

Consequently, we recommend that the Office of the Police Complaint Commissioner provide formal training to staff at police detachments on the receipt and handling of complaints.

Last week you heard officials from the Ministry of Justice refer to 2010 changes to part 11 of the Police Act as, with no exaggeration, a complete overhaul of the police complaint process. To me, that suggests a shift in culture, a process that takes time.

Our audit did not look at progress over time. Our work was more like a snapshot at the end of the complaint process that determined whether or not compliance was achieved. Given that it's only been 2½ years since the legislation was amended, in our view this was the right work at the right time.

In discussing where to go from here, as a starting point you know compliance has been achieved. Whether that achievement has resulted in the desired outcomes, another two or three years from now would be a very good time to consider such an audit with such an objective.

M. Coell (Chair): Yeah, if I can say, it's very straightforward. I think what we were looking for when we first talked to you, John, was this type of audit. The recommendations are very helpful, I think, to the commission as well as to government.

Maybe what I can do is turn it over to Commissioner Stan Lowe and his staff to respond to the Auditor General's report.

S. Lowe: I can advise you that my submissions to you this morning, in total, I estimate to be around 40 minutes. What I hope to do is I would like to pause after I comment on the audit and allow Mr. Doyle the opportunity to exit, and perhaps we could stretch our legs and I can continue on with my submissions.

Mr. Chair, Madam Deputy Chair, hon. members of this committee, I wish you a good morning and I thank you for the opportunity to appear before you. To my left is Rollie Woods. He is the deputy commissioner. To my right is Cynthia Dyck, director of strategic planning and information management.

By way of background, in general terms the OPCC is responsible for overseeing professional misconduct complaints against municipal police officers in British Columbia. We provide impartial civilian oversight of the complaint process, including the resolution and/or investigation of complaints as well as the administration of discipline and discipline proceedings pursuant to the Police Act.

Under the Police Act, the Police Complaint Commissioner is an officer of the Legislature. The commissioner enjoys considerable independence in the exercise of his or her broad powers to oversee the implementation of the act as well as achieving the spirit and intent of the legislation.

This degree of independence from government and special interests promotes and maintains public confidence in the police complaints process in this province. In my submission to you it is important that the committee understands the nature of our oversight powers pursuant to the act.

Our powers of oversight are confined to what I would describe as a gatekeeping function. We can close the gate when we determine a complaint is inadmissible or should be discontinued, or conclude a complaint pursuant to the act, and that entirely ends the matter. We can open the gate when we disagree with the decision of a discipline
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authority and refer the matter to review by a retired judge pursuant to three avenues of adjudicative review.

In our role, we do not make any determination in terms of whether an allegation has been proven and we do not impose discipline or corrective measures. I decide as a gatekeeper that the matter should be reviewed by a retired judge.

The new legislation increased the avenues of adjudication from one avenue to three, introducing two intermediate types of review which are both effective and efficient. Having the ability to refer a matter to adjudicative review is critical to garnering public confidence in the police complaints process as well as developing adjudicative guidance for chief constables or their delegates in the role of discipline authorities. This ability to open the gate to review is a very important oversight power of our office.

Before I commence with my formal submissions today, I would like to make a request of the committee on the record. In the event that you decide to hear from further interested parties after my submissions today, I would like the opportunity to appear once more before the committee, if necessary, to address any issues or concerns after my appearance today.

Our agency is required by statute to gather and compile statistical information in relation to the number of areas arising out the complaints process. It has been our experience in the past, in terms of information provided to government by special interest groups, that the anecdotal issues raised by these groups have not been supported by the statistical analysis. It is important that this committee receive factual submissions as supported by empirical evidence, as opposed to subjective musings which may lack an air of reality.

I intend at this time to provide the committee with a brief outline of my submissions. I will, at the outset, address the audit results. Then, as Mr. Pecknold testified last week…. He, in a way, set the table or the foundation for me to expand on some of the substantive aspects of Mr. Wood's report.

I wish to discuss with the committee the issue of acceptance of civilian oversight. As you recall in Mr. Wood's report, he made numerous recommendations that were categorized by Mr. Pecknold under the following headings: the improvement and accessibility to launch a complaint, improving the rights for both members and complainants, expanding the use of alternative dispute resolution, expansion of the avenues of adjudicated review decisions and improving timeliness and addressing delay.

Then I will move on to the changes in the OPCC that promote public and police confidence in our work. Finally, in a very short segment, I wish to discuss legislative changes. I believe that last Thursday I provided those to you in a formal context in writing.

Moving first to the audit results. I first wish to begin by expressing my appreciation to the Auditor General's office for their professionalism and the manner in which they conducted their audit. They were focused in their requests of our office, efficient in their work, and their impact in terms of our day-to-day operations was surprisingly minimal.

From our perspective, this audit has proven to be a positive experience and a beneficial experience to my office. The minor deficiencies in our operations have been identified and addressed. These improvements will allow us to better serve the public. In terms of the audit findings, this is a very good-news audit for our office as well as for all stakeholders in the police complaint system.

The audit validates the rigorous planning and preparation undertaken by our office to ensure the successful implementation of the legislation and new complaint process. It also reflects the ongoing work of addressing procedural gaps and providing procedural advice to stakeholders to assist in their transition to the new process.

Overnight, when the legislation came into place, hundreds of transitional files from the previous act were incorporated into a new process, and numerous adjustments and decisions had to be made to shepherd these matters through the system. There is now only a handful of transitional files remaining in the system.

I believe that establishing professional relationships with the executive management in policing, professional standards sections and police associations has contributed significantly to the success of the audit. The level of cooperation and professional collaboration has assisted in the implementation of the new police complaint process. Though we may disagree on principle, we have avoided conflict becoming personal and acrimonious — a feat not easily achieved within a complaint system.

I am also very fortunate to work alongside a very talented and dedicated group of public servants, who have endured a tremendous transition in their own operations and structure to better serve the public. Without their perseverance, ingenuity and loyalty through difficult times, we would not have experienced the success we had in implementing the new process. I am grateful and indebted to my staff for their ongoing assistance.

In my view, the current legislation represents a good starting point, but it remains a work in progress to address procedural and substantive deficiencies associated with the growing pains of new legislation. Please do not interpret these comments as a criticism. It was a formidable task to translate the conceptual recommendations of Josiah Wood into statute. The foundational elements of the legislation are excellent, but we need to refine the legislation to improve the efficiency and effectiveness of the process.

It is important to note that the scope of the audit was confined to whether complaints were being processed,
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investigated and resolved in accordance with the requirements of the act and whether the OPCC is providing discretionary oversight of the police complaint process as prescribed by the act.

The audit did not include an analysis of the validity of the investigative decisions. However, at this early stage of the process I am of the view that prevalence of the transitional files would have had an impact on the validity of those findings. So at this juncture I agree with the Auditor General. The approach taken to this audit makes eminent sense. I welcome the prospect of a future audit focused on the substantive aspects of the process involving investigations and decision-making.

In terms of the matters described in the observations report which did not impact on the Auditor General's opinion, I wish to address each of them briefly before the committee.

In terms of timeliness, in the audit sample less than 45 percent of the files were addressed in the six-month time period as required by statute. Our overall statistics seem to suggest this number is low. However, all stakeholders agree that there is still a culture of delay amongst police in the investigation of police complaints.

From an oversight perspective, in the investigative stage there are no direct oversight powers that can be applied to investigations to speed up their progress. There is a matter in the courts where in January of this upcoming year the B.C. Court of Appeal is scheduled to hear an appeal of a Supreme Court decision initiated by our office which curtailed the oversight powers of our office. In the previous legislation the commissioner enjoyed a discretion to call a public hearing at any point after an investigation had been commenced, in the public interest. This decision has limited that oversight power.

In our appeal we say that the recommendations of Josiah Wood and government committee on the bill supported an interpretation that the act supported the commission's discretion to call a public hearing in the public interest. As I said, this matter will be litigated before the courts in January. However, we have submitted some time ago a recommendation to the Legislature to provide a curative reinstatement or statement of my power to call a public hearing at any time after the commencement of an investigation.

Having this important oversight power restored will provide an important catalyst to promote timely investigations of complaints. I will be handing out later our submission on recommendations for legislative change, and I urge this committee to recommend an amendment to the act to address the issue. If there's any doubt in regard to what Mr. Wood intended in terms of my powers to call a public hearing, I invite this committee to simply contact Mr. Wood directly and canvass him on the issue.

In the interim I'm currently working with professional standards staff and police associations and unions in this province to address this issue of delay in the investigation process. I am confident that with cooperation amongst stakeholders, with either a judicial or legislative reinstatement of this important oversight power, the delay can be addressed in short course.

Secondly, the handling of complaints at intake. We are in the process of developing an education, training and auditing program we intend to implement in January, which will address the concerns raised by the Auditor General in his report.

K. Corrigan (Deputy Chair): Mr. Lowe, you suggested that there would be a time, possibly, to have a more comprehensive audit, a more substantive audit, and I'm wondering if you could tell us when you think the timing would be appropriate for that.

S. Lowe: I would imagine three to four years, and then you would have a robust sample from which to draw. I would recommend excluding the first two years, which I would call the transitional years of the legislation, and then you would have, in my view, a strong, representative sample upon which to review the substantive aspects of Mr. Wood's report.

K. Corrigan (Deputy Chair): So just for clarification, three to four years from now or three to four years from the time of the legislation?

K. Corrigan (Deputy Chair): Okay. I was interested that you said that there is a culture of delay, and I'm wondering if you could expand on that a bit. I thought maybe it was just administratively that there are difficulties processing and investigating, but I'm interested in the fact there's a culture of delay. I wonder if you could explain that a bit further.

S. Lowe: Yes. I think under the previous act all stakeholders were in agreement that the time which it took to investigate and resolve Police Act complaints was far too long.

With the new legislation, what the focus has been, I think, over the past two years was really acclimating the entirety of the police culture from the executive level
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right down to the professional standards level in terms of the procedural requirements of the act, in terms of staffing, in terms of setting the goal posts in my office with respect to what was necessary. In respect and in hindsight, I think the issue of delay was one that was on, perhaps, the back burner as opposed to trying to teach everyone and train everyone with respect to the act.

I think that now, with the catalyst created by the Auditor General's report, it'll allow us now to focus more clearly on the issues of delay. However, as I'll reiterate, currently from an oversight perspective there is very little that we can do to promote the speedy investigation of files. For example, the only oversight powers are indirect.

We can order a new investigation to be undertaken by an external police agency, or we could replace the discipline authority, who is the chief constable or his delegate, to preside over the matter. What that does is it restarts the six-month period. That would no doubt include a further extension. So what we have done is we have made it clear to the policing community that we will be stingy from now on in providing extensions.

We are also going to produce statistics that will assist the policing community from an agency-by-agency basis comparatively, as to how they stand in their responsibility and the time they take investigating matters so they can compare with each other. It really does involve working together collaboratively to identify pockets of delay and trying to address those.

If I had the power to call a public hearing in a case in which I am aware of all the material witnesses, with the duration it would take to have a public hearing — in many cases we're running some as short as three days and two days — I would simply just call a public hearing. What that does is…. Just having that power is a catalyst to improve the expediency of the investigation process.

K. Corrigan (Deputy Chair): Just to follow up on that, though, I'm trying to get a little more at the nature of the culture of delay. I'm wondering if your experience is that you believe this is because of a resistance or is it because of administrative burden. What is the nature of the delay? What's causing it?

S. Lowe: I think part of the delay is…. When an investigation is underway, it's because the act in many respects has brought in and increased the quasi-judicial nature of it. It now requires perhaps more assistance from legal counsel, more assistance from agents who are trained on the act. So what we're experiencing, for example, in lining up police witnesses and interviews with subject officers is a delay in calendar, a delay in lining up individuals' schedules, which I say can be resolved.

We had at the outset…. There is provision under the act for an investigator to impose a five-day requirement — that an individual come in within five days of a request and provide a statement. There is a plan amongst the policing community, in particular in Vancouver, in which they're going to set out a plan that I'm engaged in and advised of, which over a certain period of time, after a month, they would impose the five-day rule.

I hasten to add you would not want to interview a subject officer until you gather your materials and get a lay of the land contextually, so a month delay before interviewing a subject officer makes eminent sense.

I think that the Auditor General's report is timely. It will serve as a catalyst, and I am confident that we can address the issue. It's something that I will report back to the Legislature as a whole after this committee has been dissolved and rendered its report. I intend to do that, and I'll do that on a yearly basis as well as in my annual report.

This has been identified. I think it's in the public domain. There's strong public interest, so I will report back to the Legislature as a whole.

E. Foster: Commissioner, a comment you just made in response to Kathy's question I found…. You said that you're going to be stingy with your granting of extensions. What happens, then, to that…? If someone comes forward and says, "We need an extension on this file," and you say no, what happens then?

S. Lowe: What we're going to be doing is if they're going to be seeking an extension, they have to provide us with ample notice that one may be necessary and provide us with an evidentiary base of why it's required — if they're unable to get back a report from a specialist or if they're waiting on a video enhancement from an investigation. There has to be a reason for it besides workload.

If they're unable to extend it, I'm going to be forced into a position, I'd say, of having to move that file to another agency that could do it on a shorter timeline.

I think, in the mix, it involves a consultative process with the executive management of that police agency, and we'll come and visit and have discussions and see if we can come up with solutions.

L. Krog: To follow on what Kathy had to say…. I'm talking about the culture of delay. You indicated the practice that you…. The preference is to take some time to get the lay of the land before you start interviewing.

I'm just curious how you respond to the criticism that might be made by some that if you've got an incident or an accident or a crime has been committed, you want to gather the evidence as quickly as you can while the witnesses' memories are more focused and clear and close to the event at hand. I'm just wondering if you'd comment on that in a general way.

Also, what is the practice with officers, like yourself, who do this function in other jurisdictions? Is that kind of the general approach?
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S. Lowe: Thank you, Mr. Krog. That's a good question. How an investigation evolves is that normally you would receive a complaint or we would order an investigation. In many instances it makes sense to interview, in that month period or three-week period, all of the ancillary witnesses — witness officers, civilians — and to gather video to the site, review that video and basically set a foundation upon which you can conduct a thorough and competent interview of the subject officer.

There are instances, for example, when you speak of criminal matters and that. Fortuitously, there is in place, on serious harm and death cases, the IIO. By way of hierarchy, we would suspend our investigation until they complete a criminal investigation.

But I remind the committee that their mandate, their jurisdiction, is confined to serious harm and death cases. We have been instrumental in providing advice to police agencies to investigate certain matters that are criminal in nature that don't engage the IIO. Again, we would wait until there has been a criminal investigation of the matter. The fruits of that investigation are downloaded to the professional standards section and then on to ourselves.

While it makes sense in some cases to immediately investigate and interview subject officers, we want to reduce the likelihood of having to come back after learning more information and just redoing the interview again because you're in a better position, with more information. That's what I'm trying to expand upon.

G. Hogg: You made reference to coming back and speaking to the issues of your legislative recommendations a little later, but I had a question about some of the comments you made.

You said that the authority to call a public hearing would assist you in ensuring that you had more immediate responses or had a little more authority to garner responses. I think there's a delicate balance as to where a public hearing and the authority sits. One of the overall responsibilities I think we've had to look at is that of public confidence and ensuring that we continue to build on that as best we can.

Can you describe for me that balance, whether or not the authority to hold a public hearing is best vested in the elected representatives rather than being delegated to a commission or to a commissioner? And if it is delegated, could the authority…?

For instance, what would happen if the legislation just made it explicit that the commissioner had the authority to recommend at any time? Would that give you the power you need — in those instances where you needed more authority to garner that kind of response — to be able to point out: "Look, I have this authority and may have to use that"?

I'm just wondering where it's best to have the authority to go into a public hearing or a full investigation. Or even further, whether that's best vested in the elected representatives. Or what happens when that's a delegated authority from the elected representatives of the Legislature to a commissioner?

S. Lowe: That oversight power is squarely within the jurisdiction of a gatekeeping function. Unlike public hearings that were normally associated within government, this type of public hearing is unique to the Police Act process because it results in a determination. It's like a tribunal context. It results in a determination of whether the allegation has been substantiated or not.

In the previous legislation there was no issue with respect to whether the Police Complaint Commissioner could order a public hearing at any time after the initiation of an investigation. Mr. Wood, in his report, said that there should be nothing done — and I am summarizing — to affect or fetter that discretion.

I say, because I'm an independent officer and this position is an independent officer, that that independence should be jealously guarded and that ability to order a public hearing within a tribunal sense should remain with our office and not within an elected official, because that becomes political.

The decision should be on the merits — and I will get to our decision-making process — of each and every case, based on a neutral path of inquiry which is evidentiary-based, pure and simple. When you look at the evidence and if you look at the way the matter has transpired, is the public interest best served by a public hearing? That's the test.

We are creatures of statute. We rigorously apply our jurisdiction according to statute. So in a circuitous way, I've answered your question. I would say this directly. It should remain the determination, as it always has been, of the Police Complaint Commissioner, and the test that applies should always be the same test: is it in the public interest?

G. Hogg: With respect, could you provide for me the rationale for it being removed?

S. Lowe: There is no rationale. What had happened is…. It was a matter of statutory interpretation, which we take issue with. That's why we're appealing.

S. Lowe: If we look at the committee…. When the legislation was in committee and Mr. de Jong was Attorney General, as he was then, his comments, which this House unanimously voted on, embraced a concept that the commissioner would have an unfettered discretion to call a public hearing at any point after an investigation had been instigated. Same with Mr. Woods.

Where the issue or the rub lies has been in the inter-
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pretation of the statute and the lack of clarity in that regard. So what we say is…. What I would like to hear from this committee — in reviewing my submissions, in reviewing the legislative scheme that's set out in our legislative submissions to you — is a recommendation that the Legislature make clear that at any time after — which is section 143 — an investigation has been initiated, the Police Complaint Commissioner has an unfettered discretion to call a public hearing when it is in the public interest, which is an important condition.

G. Hogg: I'm still having a little bit…. You're saying that it's an interpretation. Who applied that interpretation, and why did that interpretation vary from the practice that was in existence prior to that?

S. Lowe: It was applied by the Supreme Court. It was based on that learned justice's review of the legislation and submissions from counsel at the time. That's why it now finds itself in the Court of Appeal that I scheduled for January.

The road map, if I can use that term, for all this legislative change had been the Wood report provided in 2007. What he made very clear is that that ability to call a public hearing should remain with the commissioner.

The Legislature, for the most part, conceptually, in every respect, has followed that road map of Josiah Wood. So in my submission, without arguing the case on its merits legally, we say that the interpretation by the learned judge at the Supreme Court level was incorrect. We may stand corrected, but there will certainly be some comment from the Court of Appeal, I expect, at some point in time as to the legislation itself and whether it's vague on that point. We expect some sort of direction from the Court of Appeal to assist all parties.

G. Hogg: I don't want to belabour this. So the issue, then, becomes…. If the Court of Appeal makes a determination that, in fact, you do not have that authority under the legislation as written, then…. You're saying that the principle is still…. Everyone who's been engaged in this to this point in time agrees with the principle that it should be vested within your authority, and therefore that's why you would come back and make the recommendation.

Basically, we screwed up the legislation. Is that what you're telling us? Or the Court of Appeal is telling us rather than….

S. Lowe: I'm saying it was interpreted in a way that, at this time, stands as a law that was adopted by our Supreme Court. I thought the legislation was very clear, but my opinion in that area means nothing. It's what the court says, and in its view…. It said that in applying the tenets of statutory interpretation, they interpret it a different way.

Now, when you say that all parties agree…. I can tell you that when I speak of all parties, that would be Mr. Wood and Mr. de Jong, when the bill was in committee, and my office. That doesn't necessarily…. I have to be careful. It's not necessarily the case for all stakeholders. You may hear otherwise.

Currently my ability to call a public hearing has been relegated to after a discipline proceeding, which is…. I can go through the process, but it's much later in the process. I think everyone has found that that's unsatisfactory also. There are some cases in which I know the association has approached me and said: "I wish you could have called a public hearing on this now, rather than going through the pain of this process."

With the committee's direction, I would welcome John, if you and your staff want to stay for the second part of the commissioner's presentation, but I would fully understand if you would prefer to go back along with your own work.

M. Coell (Chair): Again, John, thank you very much for allowing your staff to be part of this process. It's been very, very useful.

If we can take just a short recess to allow the commissioner to set up in front of us.

M. Coell (Chair): I'll call the committee back to order for the second part of Commissioner Lowe's presentation. I'll turn it over to you, Stan.

The second topic I wish to address with the committee is the acceptance of civilian oversight. Mr. Pecknold ended his formal submissions last day quoting from the conclusion of Mr. Wood's report as it related to police acceptance of civilian oversight. Today I'd like to begin my
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submissions with, again, reiterating this quote because it's important.

"Acceptance of civilian oversight by the police is not something that can be legislated. But what can be legislated is an entirely different model for processing complaints against the police, one that removes the process in its entirety from their control, placing responsibility for investigation in the hands of a completely independent investigative force and the responsibility for adjudicating the results of those investigations and imposing discipline in the hands of an independent civilian agency.

"While there is a strong argument to be made that the processing of complaints against police is an essential element of the entire discipline structure which is so essential to the day-to-day operation of an effective police service and that, as such, the complaint process should therefore remain the responsibility of police management, that argument can only prevail so long as there exists a demonstrated willingness on the part of such management, and all those who serve below, to fully accept the authority of civilian oversight."

With that in mind, and with the recommendations contained in the report — and this lays the foundation for your audit today — I can confidently advise the committee today that to date there has been a cultural shift in terms of a demonstrated willingness amongst the executive management of police agencies and the executive managements of police associations and unions to accept the authority of civilian oversight.

There has also been a significant improvement in the quality and thoroughness of investigations into allegations of police misconduct and an improvement in the quality of the decision-making amongst those tasked as discipline authorities in the complaint process.

Overall, the acceptance of civilian oversight by the police and community has clearly improved over the past three years. I hasten to add at this point that there is still work to be done to ensure that this cultural shift continues and that the gains in terms of police acceptance of oversight are sustained over the long term.

I can point to examples with respect to my anecdotal comments that support my observation. The first example is that our office, as well as all executive management in the municipal policing agencies and the RCMP, has entered into an MOU which allowed us to provide interim oversight of death and serious harm cases pending the operational status of the IIO.

It's important that I mention that this request for civilian oversight reflects an ongoing shift in police culture and values at the executive management level in B.C., as it was police executives who approached our office and said: "Will you conduct oversight of these matters?" We are now finishing off those matters that we agreed to deal with, and the remainder, we understand, will be undertaken by the IIO.

In terms of current investigations, I can tell you that the policing community engaged in the investigation of police complaints…. There is an ongoing shift in terms of acceptance of civilian oversight. The OPCC now works collaboratively with most police professional standards investigators in terms of contemporaneous oversight of police complaint investigations as contemplated under the act.

Our office actively engages in providing oversight advice in terms of investigative strategy and investigative steps. I can tell you that no civilian oversight agency in Canada enjoys this degree of involvement in the conduct of investigations. Not even Crown counsel can direct investigative steps.

This collaborative approach has resulted in a significant improvement in the thoroughness and quality of police complaint investigations. In providing contemporaneous oversight of all complaints, we have exceeded the expectation of Josiah Wood in his recommendations. His initial recommendation was that we should provide contemporaneous oversight of only those serious complaints. We found, from an operational standpoint, it was better just to do it all with all complaints.

We've met with cooperation from professional standards agencies, and for the most part, in the overwhelming majority of cases with investigators, we enjoy a professional, collaborative relationship. As you've seen in the audit results from the Auditor General, the quality of the investigations has all substantially improved.

There are still instances where we've encountered pockets of resistance which have resulted in inferior investigations that cannot be resurrected by our oversight powers. Again, the ability to call a public hearing in these circumstances would be an effective and efficient response to these situations.

I pause here at this juncture. I'm going to depart from my formal submissions just to build on that point. The vernacular for public hearing is often seen in light of a public inquiry. What I want to ensure that this committee has a grasp of is that the public hearing contemplated under the Police Act is really a tribunal, where all material evidence and material witnesses are called and a determination is made by a retired judge of either the Provincial Court or Supreme Court. We don't have a Court of Appeal judge to sit in this stead — not yet.

What we have found with the use of counsel as public hearing counsel, which also serve as special prosecutors, is that the process can be efficient and effective. It's not necessarily a drawn-out, long affair. It's a focusing on the issues. We have had some public hearings that have taken as little as two days to complete and some that have taken three days to complete. There are some that do take perhaps a month of sitting days.

Overall, I'm surprised by the process. I think we've changed the nature of the public hearings that were previously engaged by the previous legislation.

Now I'm going to go back to my formal submission. Another aspect that's indicative of acceptance of civilian oversight is one that I'll refer to as relationship-building. My tenure as commissioner has been one in which I be-
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lieve that it's important, within a theatre of conflict, that you find a complaint system. It is a complaint system. There was a need to work on relationships first, because it would facilitate effectively dealing with conflict.

We have worked hard to develop and maintain relationships with all stakeholders in the complaint process. We've established professional working relationships with the executive management of police agencies, police unions, B.C. Civil Liberties, Pivot Legal Society and other special interest stakeholders. The fact that stakeholders are prepared to establish and maintain relationships with our office is a positive development and another example of the acceptance of oversight.

The last area that I do want to touch on, just briefly, and I'll expand upon in my submissions, is our own selves. It's one thing to seek acceptance of the civilian oversight from the police. But I say that commensurate with that obligation is to improve our operations to engender public confidence in our accountability. It's not a one-way street; it's a two-way street. And we are working hard to improve confidence in our work, which will no doubt assist in improving police acceptance of oversight.

At the executive level of policing and professional standards, they are exposed to our work and our decision-making, and we're working hard to improve upon the quality and consistency of our work, as this improves acceptance of our organization. It's the officer that's on patrol who's not exposed at all to our system, unless they become the subject matter of a complaint or are a witness in the complaint. We need to work harder in our office to educate and familiarize street-level members with our work and our system.

Moving to my third topic, Mr. Pecknold last day characterized Mr. Wood's recommendations for change under five headings. I'm going to address four, because one of the headings has already been addressed through the audit. The four areas that Mr. Pecknold identified were: improved accessibility for persons to lodge a complaint, improving the rights of both members and complainants, expanding on the use of alternative dispute resolution — which is a very important topic to me — and expansion of the avenues for adjudicative review of decisions.

Dealing first with improving accessibility to file a complaint. Pursuant to the provisions of the new act, the manner in which a registered complaint can be initiated with our office has expanded considerably to allow complaints to be mailed or faxed in, to be filed on line through our website, in person, over the telephone or at police agencies. We have also worked hard to enlist over 80 support agencies in British Columbia as referral agencies to assist with respect to their clients in incidents in which there is a potential for a police complaint.

I've handed out earlier today — I knew it was a subject of questioning earlier — a chart that sets out how registered complaints were received. It's between April 1, 2010, and September 30, 2012 — April 1, 2010, being the first date of the legislation. The total number of open files, as of this past September, that we opened as registered complaints, ones that could potentially end up in an investigation, was 1,482.

As you'll see, 45 percent of our complaints were initiated on line; 24 percent through mail, fax or e-mail; 1 percent by phone; 3 percent through walk-ins, people attending our office; and through police departments it constituted 26 percent. Then referrals from other agencies are 1 percent, and those are support agencies.

In speaking with my colleague from Ontario, who is in a similar oversight role and who deals with approximately 27,000 officers, he has advised me to expect the on-line submission of complaints to grow. I think he's up around 60 percent.

So there are numerous modes upon which to initiate a complaint pursuant to the Police Act. This chart just breaks down how we receive those.

Provided to you earlier — and I hope you have it — are a number of charts that are numbered. The second chart I want to take you to is "All Police Act files open," page 1, and it's between April 1 in 2010 and September 30, 2012. This chart sets out that of those, 51 percent were registered files, registered complaints, and 23 percent were what's referred to as non-registered complaints. Those are concerns expressed. And 19 percent were monitored complaints, which include reportable injuries. Also, 4 percent were ordered investigations by our office, and 3 percent were internal discipline.

What this pie chart actually shows, and further charts will show, is a significant expansion in what we conduct oversight of, pursuant to the new legislation. In total, 2,872 files were opened.

Page 2 is "All files opened," and it's a four-year comparison. This might help provide a better context to our files. In 2009 and 2010 under the previous system complaints were only received at police agencies and forwarded to us. In that calendar year 569 complaints were forwarded to us. With the advent of new areas in which we had to conduct oversight, including non-registered complaints, internal discipline complaints and reportable injuries, our file load increased to 1,140. Fortuitously, the committee on finance and budget provided assistance to our office in staffing.

As you will see, the following year there were still 1,100 complaints. Projected for this upcoming year we'll probably top 1,200 complaints. But what we are seeing is what I would say is moderate growth. Part of that growth can be explained by bringing more police agencies on line with respect to the submission of non-registered complaints in terms of monitored complaints, internal discipline complaints, as well as reportable injuries.

Turning to page 3 in the chart, entitled "Breakdown of files opened," it sets out over the past 3½ years a chart
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of the number of complaints that we have received. As you'll see, for the last two years it has stayed well over 1,000 complaints.

Going to page 4, this sets out the admissibility of registered complaints. This is one of our gatekeeping functions. We determine what complaints enter into the police complaints system and are either investigated or resolved or disposed of through the system. As you'll see, when the act first came in, our admissibility rate averaged out to about 52 percent.

Those that were determined inadmissible — there are the numbers. These are four areas in which a complaint can be determined inadmissible. Number one, the largest, is where the subject matter of the complaint does not identify misconduct as defined under the Police Act. Secondary is "Filed out of time." There is a one-year limitation date with the discretion to extend the time in the public interest. That has only been exercised on two or three occasions. Finally, the last area of inadmissibility is where the complaint is frivolous or vexatious.

You will see that over the years it went from 52 percent…. We've improved on our ability to review these matters. Last year it was at 41 percent, and to date we're averaging about 44 percent. If you look at them cumulatively, we make about 46 to 47 percent of complaints admissible. How that lines up with Ontario is probably our best comparator. Around 49 percent of their complaints are made admissible.

So statistically — and Mr. Hogg would know this — there's about a 3 percent deviation, which is a notable deviation. We're about 3 percent lower. However, we do put a great deal of resources in the admissibility end.

Page 5 tells the committee how our allegations were concluded. What we did is…. All the statistics up to now that we've looked at are actually complaints from individuals, but a complaint can involve a number of allegations against a number of officers. How we best deal with that information is we turn it into what we call allegations. Each allegation would have been required to be investigated unless it was dealt with some other way.

If we look at 2010 and 2011, there are 982 allegations. Through the criteria set out in the act, 188 of those were discontinued, 113 of those were informally resolved, 26 were mediated and 194 were withdrawn. Then the matters that went through to full investigation and were decided upon by a chief constable or his delegate as a discipline authority: there were 468 not substantiated and 83 substantiated, with a substantiation rate of about 15 percent.

As we roll along, it'll show you the following year. I think probably most important is the pie chart at the bottom of that chart, because it does a cumulative review.

If you look at what is…. Of those cases, of the 45 percent of files that we make admissible, a further 40 percent of those files are dealt with by something other than a full investigation and determination. If you look at the informally resolved, it's at about 16 percent. My goal, and I'll expand upon that later, is to increase the use of informal resolution or alternative dispute resolution significantly.

The totals of substantiation at 15, 14 and 14 percent comparatively are fairly high. I think that under the old act it was a lower range — 9 to 12. So 15 to 14 percent, comparatively also to Ontario, seems to be in the range.

Page 6 — "Resolution of allegations by mediation or informal means." These are the percentage figures as broken out with projections. In 2008 and '09 there were 55 informal resolutions, or 6 percent. In the early part of 2009 my appointment began, and it became, as I will mention later, a legacy project. I really believe that informal resolution and alternative dispute resolution are the answers to many of these police complaints.

It rose to 75, and then the following year to 113, and then this past year to 174. We estimate that we'll break the 200 mark. But what is interesting is where it's gone — from 10 percent when I began is now approaching and estimated next year to be almost 30 percent. As that increases, it also reduces the amount of files that are required to be investigated. I'll return in more detail to this area of alternative dispute resolution.

The other area that I wish to deal with is adjudicative review. In the recommendations of Joe Wood he asked for an intermediate avenue of judicial review which was more effective and more efficient. The legislators drafted, actually, two additional avenues of adjudicative review. In total, it has been resorted to…. I'll go through each one of them.

A section 117 review is after a determination by a chief constable or her/his designate based on the evidence that's provided in a report, a final investigation report. The discipline authority makes a recommendation of whether or not that file appears to be substantiated.

If I disagree — and it's only in the instance where I disagree — I can refer the matter to a retired judge who will review all of the evidence from the final investigation report. He or she will arrive at their own view based on the evidence. However, if I agree with the decision of a discipline authority, that concludes the matter, and it's final and conclusive.

I have sent 12 files in the past 2½ years to retired judges. It's interesting to note, though, that seven of those files were transitional files and did not have the benefit of contemporaneous oversight. Five files have been opened under new legislation.

Ten of those files have sided with my view that the decision of the discipline authority was incorrect. I think it's now 11 of 13, which is almost approaching 85 to 87 percent of the time that, in review, they've agreed with our office — which, in my submission, is a fairly good number.
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In terms of reviews on the records, let me describe that process to you. At the end of a discipline proceeding a complainant or a member can ask that the matter be reviewed by a retired judge. That would be the whole disciplinary record — the evidence heard at a discipline proceeding, the findings of the discipline authority. It's an appellate process, where it's more of a paper-driven process.

It has been used five times: four from transitional files and one from files opened under new legislation. I believe that at least two of those occasions have come at the request of the member.

Public hearings. Twelve have been called: ten from transitional files and two from files opened under the new legislation.

Finally, on page 6 — and hopefully, this will address the last of Mr. Wood's areas of concerns — is judicial reviews.

Let me preface my comments by saying that with any new legislation there is an associated period of growing pains. This legislation, the changes to the Police Act, is no exception. There have been 13 judicial reviews that have been initiated. Two have been initiated by office, and 11 have been initiated for the members on behalf of the association and unions.

These reviews are important because they provide us with adjudicated guidance as to the interpretation of the Police Act. So I anticipate that the resort to judicial reviews will reduce as more of these decisions are provided by the courts, to give us guidance as to the Police Act.

The other topic that I wish to deal with that was provided for by Mr. Wood was improving both the complainants' and members' rights under the act. I think the audit was very helpful in this area. Part of the audit engaged whether the complainants were receiving their informational and participatory rights in the complaint process, as well as members. I don't want to belabour the point. It was covered by the audit.

What I do want to do is talk about the area of expanding on the use of alternative dispute resolution. It's no secret that I'm a strong advocate for the use of ADR for less serious Police Act complaints. The majority of complaints that we receive fall into this category. In my view, this form of resolution has been underutilized in the past.

I've identified ADR as a legacy goal for my staff as not only do I want to improve upon the use of ADR to resolve complaints; I want to ensure that alternative dispute resolution is engrained as a fixture in the Police Act complaint process long after my appointment ends.

Currently we're in the midst of a dispute resolution pilot project in our office, targeted at the expansion of the use of that form of resolution as well as the training we currently provide to police.

When a complaint is investigated…. If a complaint goes all the way through the system and it's investigated and a determination is made, ultimately there is a winner and there is a loser. To the loser, that individual is often left cynical of the system or cynical of the police. In terms of the winner, these wins are often hollow, as the penalties appear inadequate or the vindication is mired by cynicism for the process.

ADR has been described as a win-win situation, with no one keeping score. Alternative dispute resolution gives the parties a sense of empowerment as they control the process and arrive at a meaningful resolution. It's a powerful learning opportunity for both the complainant and member.

Also, ADR enhances community policing by improving the relationship between members of the public and the policing community, one relationship at a time.

In my tenure we have partnered with Mediate B.C. to develop a conflict resolution training course for professional standard investigators and front-line supervisors. We have hosted four training sessions to date, and we intend to continue with this program into the new year.

We have engendered the support of the B.C. Police Association in terms of support of informal resolution. They've sent a number of agents to our training sessions. And in conjunction with the Delta and Vancouver police departments and Vancouver Police Union, we have produced a roll call video introducing the concept of alternative dispute resolution for Police Act complaints to members. We hope to roll this video out this month to all members in Vancouver and, then, to all municipal departments in British Columbia early in the new year.

Part of our process is…. The Vancouver police department perhaps accounts for approximately 52 to 56 percent of the complaints in the system, as the largest police department. They have initiated what they refer to as a quick response team for informal resolution. In speaking with Chief Chu, in his support for the project, I'm of the view that in a very few short years the Vancouver police department can lead the country as a police agency in terms of voluntary ADR usage amongst police departments.

You've seen the chart that I've already produced with respect to ADR, as well as our judicial review.

Moving to the fourth topic, changes in the OPCC, I think it's important that the committee hear about changes that have been introduced to our organization.

With the introduction of changes to the police complaints system, the OPCC has also experienced sweeping change in terms of its structure and operations. Operationally, we've consolidated our operations into one office in Victoria, and through internal business practices, we have significantly improved upon our own accountability, as evidenced by the audit.

It is my view that to instil public and police confidence in our work, we must take a consistent approach in our principled decision-making, which will result in predictability and consistency in our decisions. It is through
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these internal changes to improve our accountability that we will facilitate continual acceptance of civilian oversight in the policing community.

Improvements to enhance accountability include…. When I first began my appointment, I reviewed the findings of both the Davies Commission and the Braidwood Commission, and I implemented several changes to the OPCC to improve upon the accountability of our decision-making and steps to increase the civilian nature of our organization through recruitment and a training program.

I can tell the committee today that the OPCC bears no resemblance in operations to the organization which existed at the commencement of my appointment.

We employ an evidentiary-based method of impartial oversight which has resulted in consistent, principled decision-making. We have developed internal business practices and quality control measures to ensure impartial, principled decision-making, and both the commissioner and the deputy commissioner employ a hands-on approach. We have a robust system of documentation and record-keeping, which includes detailed explanations of our oversight decisions.

On the civilianization end, we are of the view that public confidence requires that we promote and maintain a strong civilian presence within a civilian oversight agency. Our current strategy includes a long-term, intensive, in-house training program for our civilian members who are advanced on the basis of merit.

In my view, maintaining a staff composition of at least 50 percent civilians engaged in decision-making positions allows us to meet the goal of strong civilian presence, balanced with the necessary skill sets to perform our work effectively. We're currently two years into this training program.

Finally, in terms of relationship-building with the stakeholders, my tenure, so far, is a change from past commissioners in that I believe very strongly in the importance of building professional relationships with all stakeholders. The importance cannot be understated.

I've worked hard to establish relationships with all stakeholders in the complaints system. These types of professional consultive relationships, as I said, did not exist before in this office.

Consultation is the key to efficient and effective operation of a police complaints system. There is a significant potential for conflict. However, I wish to confine our disagreements to one of principle and not personalize the issue. This can be difficult at times, as we operate within a theatre of conflict. However, for the most part, we have maintained a climate where two reasonable minds can agree to disagree on a specific issue, on a principled basis.

In my view, establishing strong professional working relationships is crucial. I can assure the committee that my independence in terms of my jurisdictional decision-making is well preserved and jealously guarded in the public interest. We have in place safeguards to ensure that in this climate of relationship-building, my decision-making capacity is insulated from the process.

In terms of legislative change, you have my recommendations in written form. I won't belabour the point with further submissions before the committee today, and I'll turn to my concluding remarks.

The Auditor General's report today serves as a validation of the work of our office as well as the work of stakeholders in the system in transitioning to a new process. We are progressing in the right direction, and I'm cautiously optimistic that the policing community at street level will continue to transition towards acceptance of civilian oversight.

There is still much work to be done in terms of improvement to the complaint system. Our corporate goal is to continue to implement changes which will improve the efficiency and effectiveness of the police complaint process.

Those are my formal submissions. I'd be pleased to answer any questions that you have of me.

M. Coell (Chair): Thank you, Commissioner Lowe. Very much appreciate your presence here today. I have two — Leonard and then Kathy.

L. Krog: Sort of going from the most recent comments, the 13 judicial reviews — what's the status of those, and what are the results? Can you tell me a little bit more about them?

S. Lowe: : The judicial reviews encapsulate one that has gone to Supreme Court decisions made, and we're appealing that, so we can reduce that by two. We have had decisions in four of those, I believe; three or four. Some of them are based on one decision in January. It will, I think, affect two others. So from the perspective of judicial reviews, we probably currently have in the court system, I would think, four altogether that are still active.

Most of those have been procedural in their context. Currently under the system, and unfortunately under the system, the process…. We put in place as a gap measure a way of consolidating all complaints that arise out of one incident in one pathway.

Unfortunately, because of some ambiguity in the legislation, the Supreme Court justice in a recent decision felt compelled to split two matters knowingly in his comments, saying that it would cause difficulties with the prospect of having inconsistent verdicts with respect to inefficiencies with two processes. It was his learned view that the system, as it's stipulated in the legislation, required in those cases that the matters be split. That is one of our legislative changes that you'll see in the tabs in your book.

We're not appealing that matter, but that was one of
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the judicial reviews.

I'm sorry. I could probably provide the committee a more detailed breakdown of all the judicial reviews and where their standings are, but that's something I didn't want to get into the minutiae of today. But if you want, I can provide those to you. I'll wait to hear from you on that.

L. Krog: With respect to your chart, how registered complaints were received, obviously on line is very popular — the 45 percent. I'm just wondering if you can comment. Is there any relationship between those which are found to be not admissible and those which are submitted on line? In other words, is there something around the ease of making the complaint that may have something to do with their, how shall I say, substance?

S. Lowe: No. I think that in any method…. There's no correlation, to answer your question directly. It really comes down to looking at the subject matter of the complaint and whether it falls into one of the enumerative 13 heads of misconduct. No matter what course we received those in, I think having it on line is certainly easier. That's what Mr. Wood wanted in his report: accessibility.

We do enjoy, I think…. Amongst my colleagues across the country in oversight, we probably have the lowest rate of admissibility, because we do put a lot of resources into the front end, in determining admissibility. I think that's an important aspect.

L. Krog: Finally, I don't sit on the committee that you'd be coming to with cap in hand, so to speak, but the second recommendation was that you engage in a more intensive program of educating officers, etc. Do you have the money within your existing budget to accomplish that? If not — which, I suspect, may be the case — do you have any idea what the anticipated cost of such a program would be?

S. Lowe: We have existing funds to cover that off. They're primarily soft costs.

What we're going to be doing is improving on our guidelines that we provide; ensuring, through an auditing program, that those that are front-counter persons are trained pursuant to those guidelines; and then providing brochures that are posted in police stations to ensure that the people coming realize what their rights are. Finally, for those that filed registered complaints, we're going to do an audit program in which we call them back and survey them, all those that filed at police stations, as to their experience.

K. Corrigan (Deputy Chair): I have several questions. I can ask some, then somebody else can jump in if they want, or you can just let me keep going.

First of all, just a little numbers thing. On page 5, in the chart on how allegations were concluded, in 2010-2011 the percent substantiated is indicated as 15 percent, but the numbers are not 15 percent. I'm not sure whether the numbers are wrong or the percentage is wrong, but I don't believe 83 of 468 is 15 percent. I think it's more like 17 or 18. Am I interpreting the numbers incorrectly?

S. Lowe: You have to add the two together, because 83 and 468 equal all complaints that were for decision-making.

K. Corrigan (Deputy Chair): You're right. No, that's right. It's me. You're absolutely right.

The next question that I have is to do with the independent investigations office. Can you explain: if the independent investigations office becomes involved because there is death or serious injury, then what happens if there is also a complaint? What is the process then?

S. Lowe: Under the act, for all cases involving death or serious injury, for municipal police agencies there is an ordered investigation, regardless of a complaint.

What happens is an external agency would oversee the professional standards aspect of that. The IIO's jurisdiction is completely limited to the criminal standard or the criminal investigation — criminal misconduct. The external Police Act agency would receive the fruits of that investigation and then conduct their own investigation, if necessary, to determine if there were any possible areas or allegations of professional misconduct, which encapsulate 13 different heads of misconduct under the act.

So our roles are very different. Our roles are very defined. But in the past, to give you an example of before the IIO, there would always be an external agency that conducted the criminal investigation. Often that would be the same agency that conducted the professional standards investigation.

What we do is that as they receive the materials, we receive the materials. Pursuant to the act, I have the ability — and it's still maintained — that if I see there may be a criminal offence, to refer that matter to the prosecution branch for charge assessment.

K. Corrigan (Deputy Chair): Okay. I just wanted to make sure of that.
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Now the section 143 case was…. In your materials, it's Florkow. Is that a police officer? Is that basically the…?

S. Lowe: The Wu matter. It involved the individual that was…. Two officers who attended to his residence had the wrong address or had the wrong individual — Mr. Wu. He's the one that recently settled civilly on the matter.

S. Lowe: What occurred in that case — and why it's the subject of judicial review — comes down to a determination of when I can call a public hearing.

S. Lowe: In that particular case, after reviewing the investigation…. I should add — it's an important prospect — that it didn't have the benefit. It was a transitional complaint, and I took issue with some of the aspects of the investigation. So I declared a public hearing in that matter, and the learned justice determined that at that stage I didn't have the ability to declare one. I'm appealing that decision, and that's the case I'm alluding to. That occurs in January or February of 2013.

I have more questions. Going back to the issue of culture, it seems to me that it's very difficult for police officers to take on the role of professional standards investigators. At least, I would think it is. We've talked about this in previous sessions. It's because of that police culture, which is positive and sometimes negative, and which bands together, I think, a lot of times because of the very difficult work that police officers do.

My first question on this is: how do you ensure that the quality of people that you need are doing the work, that act in an impartial — I guess not quasi-judicial — way for the best interests of the public? How do you ensure that they don't get affected by the fact that their brother or sister officer is being investigated?

S. Lowe: Let me start with this general statement which I've maintained and, I truly believe, is supported by the evidence. In cases of professional misconduct, as opposed to criminal misconduct — because there's a different public confidence/public interest value at stake — I think the police can and do investigate police very well and can do so. What they require is a strong oversight of their investigations.

Fortunately, under this particular act — which, I think, is quite innovative — our office is embedded in the investigation. When an investigator receives a file, an analyst from our office will say: "I'm the analyst assigned to the file. What do you think of this? Who do you think the material witnesses are? What are you going to look at?" We serve as a sounding post, but we also serve as a conduit for the investigation.

Where there is disagreement about how the investigation is being conducted, as far as investigative steps, after consulting with the chief I can order those steps to be undertaken. Also, in terms of a final investigation report that arises out of an investigation, if there are missing investigative steps, I can reject the report and direct that it be investigated.

What you're alluding to, also, is the concern of…. It's an individual point when you talk about officers and whether they're able to do this job. I think it's difficult to generalize. That's where I talk, in my submissions, about pockets of resistance. The majority of those engaged in professional standards are able to operate impartially without bias and conduct thorough, professional investigations. We encourage them to say this: if you do a good investigation, it's apparent to all, when they look at the evidence, what the file will likely result in. It's an evidentiary-based view.

But it is an area of high burnout. It is an area, depending on the agency, where not necessarily the strongest investigators are placed. It's an area which is used as a stepping stone to promotion. For those who want to proceed in the ranks, they do have to take a stint in professional standards. It's an area that some officers avoid. They are very uncomfortable with it. I think that's a good thing. If they're uncomfortable, why force them into that situation?

The conundrum is matching the skill sets in that particular professional standards section to the needs of that section as far as good, quality, thorough investigations. That's where oversight steps in. It's our responsibility. But I will caution you that there are cases where despite our best efforts, the quality of the investigation is such that it's deficient.

The nature of the questioning and the way you ask questions can, in many respects, not end up with an appropriate result. It's in those situations that we either appoint an external investigation group or, when we had the ability and when we were able to identify all the necessary and relevant witnesses, call a public hearing and roll that matter into the public light.

Having that power — I can't emphasize more — is in
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itself, for lack of a better term…. Here's a better term. It's a catalyst for acceptance of oversight and is a catalyst to do good investigations.

I agree with you. It's a conundrum that many officers struggle with. Our goal, and how we advise the executive management…. We say: "Put investigators in there. Put people that are good at investigations." One thing that the Auditor General did make very clear is that all the investigations that they reviewed were thorough. There was no difference, even though the complaint may be trivial or less serious. That's a good-news story for investigators in this province.

As I reiterate, the quality of investigations has significantly improved, even from the first day I started.

G. Hogg: In a society which, I think, tends to become overly formalized and overly legalized, I certainly support your move towards alternate dispute resolution and more informal methods of dealing with that. Certainly, there are lots of forms of alternate dispute resolution. I think there are at least two or three principles which they all hold, which I can think of, and you can probably think of more. Those are that they are voluntary processes, voluntary in nature; that there is agreement in terms of the outcome; and that there is recourse to a formal process.

I'm assuming, as you talk about training and alternate dispute resolution and methods for different police forces, that those are principles which are inherent in each of those. I'm wondering whether or not there is an informed…. At the beginning, if I were to enter into alternate dispute resolution with a particular police force, do I sign something saying that I understand the process, that I understand I always have recourse to a formal process?

Can you explain a little bit about, as you move your culture more and more towards that outcome and that legacy, the front end of that process so I can reassure my level of comfort around those principles and the process of ensuring that people don't feel as though they are getting brought into a process, which can sometimes occur? My experience is that that can sometimes occur, and they're not as happy with the outcome as they might otherwise have been, not realizing that they don't have to, in the end.

S. Lowe: You're referring to what I refer to as a paper chase. Get your signature on it and get you out of here. We don't allow paper chases.

Fortuitously, the legislation itself sets out stringent safeguards in the area of informal resolutions, which is the overwhelming majority of types of ADR that we employ. You'll be happy and comforted to know that we have to approve all informal resolutions, and one of the hallmarks of an informal resolution that we will approve is that it has to be meaningful. It just can't be a sign-off. It has to be meaningful. I think all stakeholders want it to be so, because it has resulted so far in — if I can use, for lack of a better term…. Recidivism, the likelihood of a member coming back before a complaint, is substantially low. The likelihood of another complainant making another complaint is substantially low.

So under the act, just to be technical now, there is a requirement that once reaching an informal resolution, that resolution agreement is placed under our nose. We review it, and a complainant has up to ten days to remove his or her approval of that informal resolution.

We personally contact the complainant each and every time to find out about their experience, because we're trying to improve the process. Every complainant we're able to get hold of, which is the vast majority of them, is canvassed by our office before we sign off.

I will tell you this as one of our legislative changes that we've asked for. Under mediation, we don't have that same oversight power. The problem, why we've moved away from mediation, is twofold. One, it's very expensive for the police departments who must pay. Two, once we sign off on the mediation, to go to mediation, we don't get a scrap of paper back as to what happened — no reporting, no oversight.

So we've stuck with informal resolutions. We've worked hard. We've distributed agreements that are innovative, that officers can use to think — for lack of a better term — outside the box. I'll give you an example. It's in this city. There was an ongoing issue between a cyclist being stopped by a police officer for not having a helmet. Because of the numerous stops, it created, at some point, conflict. In amongst that informal resolution agreement is they bought him a helmet, and he wears it. As simple as that, but everyone walks away from the process with something better.

I'll give you another example. There was another incident — it's from Vancouver — in which an individual and an officer who was in his car eventually engaged in a conflict situation in which use of force had to be used. It was a minor use of force, but the person was momentarily taken into custody. An informal resolution of that matter has both of them now coaching a baseball team together. Now, these are the great stories that we like to hear.

Many of the informal resolutions result in, really, an exchange and an understanding of perspectives, but those are the very good news stories that I can bring to this committee. What we hope to have is an exchange of views, perspectives, an understanding and an empathy for each other's position. It's really a situation where two adults are satisfied by the process and walk away in a win-win situation. It does improve the image of the policing community, and it improves in that member their work and their conduct in dealing with other members. It humanizes the whole process in a conflictual situation.

G. Hogg: Well, I'm comforted by your comments that
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you contact them as a follow-up. I trust that contact is within the ten days that they have to appeal as well. So as long as that contact happens in there, and if you find something as a result of that investigation, they still have the recourse at that point in time to do that.

S. Lowe: Yes. It occurs in that period. But in my view, I still have the power under the act to order an investigation.

S. Lowe: To give you another idea, for the matters that are withdrawn…. Let's say a person becomes disenchanted with the system and withdraws their complaint — or for any reason withdraws their complaint. Let's use that. If I think that the interest at stake and the seriousness of the matter requires that the investigation continue, I can order that the investigation continue to its end.

K. Corrigan (Deputy Chair): You talked about pockets of resistance. I wanted to ask whether your office does any work in analyzing the data — the number of complaints and from which departments. For example, if you had a police department where there seemed to be more complaints, or less, and the way it was being resolved seemed to be different and out of the norm, do you take a look at that kind of data? Do you do anything proactive in that regard?

S. Lowe: Yes. If you look in our annual report, in our statistics section by type of misconduct, it's broken down for each and every police department. I believe that if you have the annual report…. It's contained at the appendix. I'm sorry.

For example, at page 5 of the appendix is use of force. "Injuries as a result of one or more of the following…." These are reported injuries. Sorry. Let me just move on to allegations.

S. Lowe: Oh yeah, page 9 — viii and ix. We've set out the types of allegations. Normally, we do have the ability to provide individual…. We do, actually, twice a year. We go and visit executives, at the executive level of chiefs, at each one of the municipal agencies and go through the statistics with them.

S. Lowe: Yes. We also have quarterly reports on our website that break it down even more.

To answer your question, though, about if we give feedback, yes, we certainly do. There have been cases where we saw an increase in the use of firing of weapons, discharging firearms into cars full of individuals. We went and dealt with that particular agency and put in place a general policy that it can't happen except in cases of exigent circumstances where death or grievous bodily harm was involved. So that stopped immediately.

We also talk about global issues and the use of fleeing vehicles and shooting at fleeing vehicles, and so forth. We speak with all the professional standards sections, and we go around to each of the police agencies, especially in the area of informal resolution. We go to agencies and say: "You're not doing enough with them. Here are your statistics. Here are everyone else's statistics. You should do more." They say: "Oh, really. I didn't realize it was that way." We get feedback that way.

I invite the committee to look at our statistics on our website — because we put them on, on a quarterly basis — which are more detailed than our annual report, which is more global.

K. Corrigan (Deputy Chair): I have a couple of more questions, but again, interrupt me if somebody else wants to speak.

I want to go back to this issue that Leonard brought up earlier of the time when a police officer would be interviewed and the response in defence of waiting until other witnesses perhaps had been interviewed, giving it a month, or something like that.

It raises the question for me: wouldn't it be better to interview a police officer immediately, just like you do in a criminal investigation, and find out what the police officer has to say? Then, if there is other information that comes in and you gather it all together, and you then feel like you need to do another interview, do that. Frankly, if you wait for a month, if there is going to be any consideration of what the statement would be, perhaps discussion with fellow officers….

I mean, it does happen, or it did happen in the past. I assume it continues to happen in isolated cases. I'm sure most police officers would not do that, but I think it has happened.

So I'm just wondering why…. As Leonard said, when you are investigating a crime, officers immediately keep the suspects apart. They don't allow them to talk to each other. Why would it not be the same thing when you're investigating a police officer's conduct?

S. Lowe: You contrasted it with a criminal investigation. I think I just need to clarify the differences between the two. Under the Police Act a subject officer, the officer that's the subject of the complaint, is compellable. They must come, and they must provide a statement.

In criminal, they're not compellable. They're never compellable. They don't have to give a statement. They
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don't have to attend. They don't have to say anything. They have to provide some information in a duty report to assist, with respect to the immediacy of safety when someone arrives on the site. But in the criminal perspective, no officer is compellable to give a statement during a criminal investigation.

Now, I brought up as an example in the delay the difficulty of interviewing subject officers, but there are many other areas of delay. Some of it that we've seen has also been in completion of a final investigation report within the six-month period but not having enough resources for a discipline authority to review that. So it sits in a queue. Those are being resolved, over time and over staffing, with the agencies. We work directly with those agencies to say, "Listen, you can't have this sitting after three months," because statistically, you keep the investigation open until the DA receives it.

The act has an anomaly because once the DA receives it, the discipline authority of the chief, they have ten days to render a decision, which is a tight schedule, especially if it's a complex matter. So what they tend to do…. They may complete within the six months, but if the discipline authority has four or five matters in the queue, then they're allowed to prolong, from a statistical standpoint.

I think the 45 percent of the random sample, anecdotally — we're looking at our own statistics — is a little high. Just a bit high, just a little high. The reason I say that is we look at the times we grant extensions and look at the percentage of time…. We always grant an extension if it's going over the six-month period, and it's slightly lower, but it's still not acceptable. I just want to put it in that light. Where we can probably improve upon matters is really getting everyone to focus and for the unions to put pressure on the investigators.

You're right. There is a climate that's really unusual. For example, it's not unusual for the investigators of these matters to be union members and to be under criticism of the union for being delayed. It's an odd situation. What we have to do is….

I think part of the delay could properly be laid at the feet of those transitional files I alluded to earlier. For some of those, in pulling them over — they were in the sample lot — they have really skewed the numbers. We were looking at our own numbers, and there were some that were up to 700 days because they were going through appeal and all that.

I think, to answer your question, that the issue of delay is one more complicated than interviewing and the time it takes to interview. There are other factors that factor into it. Part of it is also resourcing.

Some agencies, I would say, given the number of complaints they have, are under-resourced. It's fine enough for us to…. We have gone to executive management and said: "You need more people in there." Far be it for me, in my jurisdiction, to tell a police agency how to spend their money, but I do point out issues to them by saying: "Your statistics are high. Your staff are overworked." I can tell. The caseload that they have is burdensome.

K. Corrigan (Deputy Chair): Because we're running out of time…. We're going to have lunch. I'm sorry to interrupt, if that's possible, Murray.

My question was not about the overall delays. It is about: why is it that police officers against whom a complaint is made…? I'm contemplating very serious cases. Why would they not be immediately interviewed in order to make sure that their testimony is in no way tainted by other circumstances — advice, discussion or whatever — when there's a suggestion that there has been serious wrongdoing?

S. Lowe: Well, I think there's a generalization that the opportunity is there for that to happen. As an old prosecutor, you can usually intuitively find out when a bunch of people get together because the version ends up looking like it's a little cooked.

I think there are pluses and minuses. If you force an interview at the outset — right? — there are areas that you may learn about later on that you would have liked to have challenged that individual on, and it turns into a path of continually bringing that person back as new information comes to light.

To be honest with you, if you're going to orchestrate, if I can use that term, a version of events, that can occur very quickly, and that can occur at the outset. But I don't see that type of orchestration on a day-to-day basis. We do really scrutinize police statements and police investigative methods. I think — I know — that from our experience, no one's cornered the market on being able to provide a clear statement.

By making someone, especially if it's a traumatic incident, come in and give a statement, the first question is…. It's tempting. It sounds great, but the question is: what do you ask besides broad and open questions with nothing to challenge? Whereas later on you may have a person up in a condo that you've done through a neighbourhood search and you find seven other people that have seen this three weeks later…. They provide a version or an account, and you're running back to that individual, saying: "Okay, now I need to ask you this, this, this and this."

One thing that we respect in the whole process, even though we've been given broad powers, is that ownership of an investigation remains with the police. They have a broad discretion on how they conduct the investigation.

We scrutinize how they exercise that discretion. We have oversight powers when we lose faith in the exercise of that discretion. So I can tell you at the outset that when it's a serious matter, I leave it to the investigators to decide what the best course of investigation may be.

Ms. Corrigan, there may be times when they do inter-
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view a person right off the bat. There may be times, but I certainly understand when they don't. I think that we have a pretty strong group of individuals in oversight here. I think our greatest criticism of our office is that we're very picky. But the proof is in the pudding when we talk about the audit that has come through. We are thorough, and we are comprehensive in how we do our oversight.

K. Corrigan (Deputy Chair): I had just one more area that I wanted to ask about, the issue of training of professional standards investigators. My understanding is that there perhaps is some lack here and there is not consistency. I could be wrong, but I think we heard that over the past while.

What is the state of training of professional standards investigators? What is the requirement, and where are we on that?

S. Lowe: What we have is we offer training to any officer that comes into professional standards. It's a one-day training that's actually undertaken by the gentleman to my left, by the deputy. He has a process that's set out, that's canned, that covers all aspects of the Police Act. The training is really the procedural aspects of that and our expectations, which we impress upon all trainees as being very high.

I understand that the Justice Institute of British Columbia also has a training program that's put on by officers in the area of professional standards. I think they're even having a training session coming up in the next couple of months, in February. So they host a training session, and we are asked, from time to time, to come and present topics in that training area.

K. Corrigan (Deputy Chair): Do you know what percentage of officers actually take training to become professional standards investigators?

S. Lowe: I think if you have an investigative background, the only training you need is the procedural aspects of the act. That's part of it. So what we like to see as far as training — and we don't have percentages, no — is we like to see those that go into the area of professional standards have a strong background in investigations, because they're one and the same in our view. There should be no difference between a criminal investigation and a Police Act investigation, plain and simple. That's our expectation. All the i's have to be dotted; all the t's must be crossed.

What we're seeing, unfortunately, is that in some instances, in these pockets, it's a place that accommodated individuals come into on a return back to work or hard-to-place individuals come into from time to time. But the majority of people that are posted in that area generally do good work.

When I say "pockets of resistance," we do find individual investigators that we identify as biased and as partial and work hard in our scrutiny of their work. That's all we can do in the circumstances, and I think we're fairly successful.

K. Corrigan (Deputy Chair): Okay. This is the last one. I'd forgotten an area that I wanted to ask about.

This desire to have more alternate dispute resolution, I think, is a good one, but I'm wondering how you ensure that the process is appropriate and limited to people who are not in an imbalance of power, because there is that authority of police and there could be a real danger there. So I'm wondering how you ensure that.

S. Lowe: I'm glad to report that I think we've topped over 90 now. We have 90 support agencies, so what we do is when we're in the process and the person has been identified, if they have a disability or if they're marginalized or vulnerable, we have a number of support agencies that we personally get involved in, in contacting and placing a complainant with an agency itself and then ensuring that that person is comfortable with that agency. They may not be, and then the search continues. We are mindful of that, and that's, in some cases, where mediation is actually better.

We find in cases dealing with people that require support, the mediation route is what we like to see, where there's a trained mediator. I should tell you that all our mediators have to go through an accreditation process — we ran it for a day — in which they learned about the act, but they learned about the interest. We brought people from the marginalized communities and support agencies to talk to mediators. We brought people from the union. They got everyone's perspective on that, so they came into the process with eyes wide open. There's a specific mediation style that's employed, that is used.

As far as dealing with complainants, we are a resource. We have an obligation to advise and to provide information to all stakeholders. If we identify a person that needs assistance, we're more than happy to facilitate that process directly — not giving them a phone number and saying, "Call here," but finding a person, putting the two together and seeing if the fit exists.

Well, Stan, thank you very much for being here, to your staff as well. Your comments have been greatly appreciated. You offer to come back if there is a need, and we will be in touch if that's the case.

Committee, I think what I would suggest to you is that we take a ten-minute break to allow you to get a sandwich and come back to your desks. We'll spend an hour or so looking at deliberations on the report and give staff some direction.

M. Coell (Chair): If I can just give you an idea for timing, we had scheduled a meeting tomorrow. I think if we can give directions to staff…. They've prepared — and Susan's just handed it out — a template as to how the report should look and could look.

If we can give them directions, they could bring back some more fully put-together deliberations for us for next week and we wouldn't have to meet tomorrow. I think next week we have one witness.

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Chair:	* Murray Coell (Saanich North and the Islands BC Liberal)
Deputy Chair:	* Kathy Corrigan (Burnaby–Deer Lake NDP)
Members:	* Eric Foster (Vernon-Monashee BC Liberal)
	* Gordon Hogg (Surrey–White Rock BC Liberal)
	* Leonard Krog (Nanaimo NDP)
	* John Slater (Boundary-Similkameen BC Liberal)
	* Joe Trasolini (Port Moody–Coquitlam NDP)
	* denotes member present
Clerk:	Susan Sourial
Committee Staff:	Josie Schofield (Manager, Committee Research Services)
	Matthew Cleeves (Committee Research Analyst)

Witnesses:	John Doyle (Auditor General)
	Cynthia Dyck (Office of the Police Complaint Commissioner)
	Phil Hancyk (Office of the Auditor General)
	Stan Lowe (Police Complaint Commissioner)
	Jacqueline McDonald (Office of the Auditor General)
	Michael Macdonell (Office of the Auditor General)
	Peter Nagati (Office of the Auditor General)
	Rollie Woods (Deputy Police Complaint Commissioner)

REPORT OF PROCEEDINGS(Hansard)

SPECIAL COMMITTEE TO INQUIRE INTO THE USE OF CONDUCTED ENERGY WEAPONS AND TO AUDIT SELECTED POLICE COMPLAINTS

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO
INQUIRE INTO THE USE OF CONDUCTED ENERGY WEAPONS AND TO AUDIT SELECTED POLICE COMPLAINTS