Conducted Energy Weapons and Selected Police Complaints Audits — Issue No. 11

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. Resolved, that the Committee meet in-camera to deliberate on its draft report and meeting schedule. (Kathy Corrigan, MLA)

7. The following witnesses appeared before the Committee and answered questions relating to Part 11 of the Police Act (Part 11 – Misconduct, Complaints, Investigations, Discipline and Proceedings):

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	163
T. Stamatakis
S. Sullivan

M. Coell (Chair): I guess the first item is the motion to go in camera for deliberations.

M. Coell (Chair): Now, we're fine with the dates. I wonder if, Susan, you could just go over the dates. I think Gordie wasn't here. He was tardy, as I remember.

S. Sourial (Committee Clerk): The committee had agreed to Monday, January 21; Tuesday, January 22; Monday, January 28; and Monday, February 4, from 10 a.m. till 2 p.m., for in-camera meetings to consider its report.

M. Coell (Chair): And it would be our intent on the fourth to have agreement on the recommendations in the report and then that would allow the Legislature not to have to reconstitute this committee. Kathy and I could table the report sometime in February or March. Is that good with everyone?

M. Coell (Chair): We have two witnesses for this afternoon — Tom Stamatakis, president of the British Columbia Police Association, and with him is Sheila Sullivan, the executive resource officer.

We're glad to have you with us today. Thank you for joining us. I'll turn the floor over to you.

T. Stamatakis: Thank you very much. If it's okay with you, I've got a prepared statement that I'll probably read through. Then I'll ask my colleague Ms. Sullivan to make some comments as well.

Mr. Chair and members of the committee, I'd like to thank you for the opportunity to appear here today to assist you as you make your inquiries into the amended citizen complaint and disciplinary processes under part 11 of the Police Act, which came into force in March 2010.

I'm appearing on behalf of the British Columbia Police Association, as you know. BCPA is an organization that represents over 2,500 front-line police personnel from across the province. I'll be making a brief opening statement outlining some of our key concerns, and I know that you've got the benefit, I hope, of receiving our detailed submission previously. Hopefully, you've had a chance to refer to that. As I said, my colleague Ms. Sullivan will then make some comments, and we'll do it, obviously, within our allotted time and hopefully leave lots of time for questions.

Through our submission today we want to identify concerns that go beyond the audit and your mandate. We are going to urge you to make recommendations to government that government establish a process to address our concerns. These are concerns that we identified early on and that we've previously received assurances would be addressed through this process, but we do realize that a lot of our submissions today fall outside of your mandate. We recognize that, and I wanted to point that out, but we nevertheless are going to urge you to perhaps make some further recommendations.

Before I get into the actual submissions, I want to emphasize — and I think it's important for me to take this opportunity to emphasize — that the BCPA and our members agree that accountability and civilian oversight are very important measures that help ensure that citizens continue to have faith and trust in their police services. We support the Office of the Police Complaint Commissioner, and further, we also believe that the creation of an independent and external agency conducting criminal investigations into police conduct is important and that the creation of the independent investigations office is a positive step.

While I've had the opportunity to review the summary report that was prepared by the Auditor General, I would like to state that without access to more specific information regarding how the audit itself was conducted, particularly with respect to the number of complaint reviews and what aspects were focused on, it's difficult for me to comment on the specific conclusions that were reached by the Auditor General.

That being said, I can state that our experience as key stakeholders in the process confirms what was found
[ Page 164 ]
regarding the length of time it can take to complete an investigation following a citizen complaint. Police personnel in this province are often subject to investigations that last beyond the statutory time frame that is specified within the Police Act.

Unfortunately — while I'm not personally surprised to learn that the Auditor General concluded that, overall, police complaints are being managed in compliance with the act — I do believe that the focus of this review prevented the discovery of the more significant issues regarding the citizen complaint and disciplinary process as contained within the legislation.

As you're all aware, part 11 of the Police Act was originally intended to implement the recommendations that were made by Justice Josiah Wood in his Report on the Review of the Police Complaint Process in British Columbia. That report was released in February of 2007. However, rather than amend existing legislation, which was the original recommendation by Justice Wood, it was decided to redraft the section of the act, and the procedures that were introduced through that redrafting have generally made the process unmanageable and onerous.

Because of these changes, the BCPA, as well as individual police officers and even the Police Complaint Commissioner himself, have had to file a number of court challenges to obtain clarification on the interpretation of the Police Act, which has, unfortunately, required significant investments of time, energy and resources. There's no question that the complexity, the lack of cohesion and the poor drafting of this legislation have already resulted in significant delays. In our view, if these issues are not quickly addressed, even more court challenges will follow.

The second issue I would like to raise during my opening remarks is the urgent need for a simplification of the process and procedures regarding complaints and disciplinary matters that are minor in nature. Under the current regime, all allegations of misconduct, no matter how minor they may be, go through the exact same process and options. And while informal resolution is one option that could easily streamline the outcome, it's used in a minority of cases and is subject to a number of limitations.

There's little common sense applied in the current system, which treats a relatively minor complaint — such as an officer being rude to a citizen — in the same fashion as a more serious allegation. In fact, a complaint of general rudeness can result in an exhaustive investigation and, potentially, a formal disciplinary proceeding where witnesses could be called and even lawyers need to be engaged. Obviously, we want to ensure that citizens are given the best possible service from their police personnel. However, there is little reason or, I'd suggest, even appetite from the public for tens of thousands of taxpayer dollars to be spent thoroughly investigating every allegation of rude behaviour.

The BCPA believes that it's time to review the processes within the Police Act in order to rationalize them and maximize simplicity and efficiency while maintaining fairness. This will, however, require more careful consideration and, I should point out, stakeholder consultation than was undertaken leading up to the 2010 amendments.

It is, in this circumstance, a question of achieving a proper balance, where citizens can trust a system that will thoroughly investigate the serious allegations and properly adjudicate the minor complaints with a view towards an efficient use of resources that are available and without sacrificing any of the transparency and accountability that British Columbians deserve.

In conclusion, I'd like to say that I appreciate the work done by the Auditor General's office on behalf of the committee and fully support the recommendations that were made. Ensuring a streamlined process that achieves the six-month goal for the completion of investigation is a worthwhile initiative that has the complete support of the men and women who are subject to these investigations.

However, I do encourage you, as legislators, to look beyond the issues that are addressed in the audit and take a careful look at the legislation itself. You will certainly find more detailed suggestions and comments within our brief, but I will note that the depth and breadth of our submission should be a rather bold indicator of the problems we have found within this act.

It's important that the processes created be expeditious, fair, unbiased and as efficient as possible. There is much work to be done to achieve these important goals, and I hope the committee will make meaningful recommendations to the provincial government so that suitable amendments can be implemented in short order.

I'm going to ask Ms. Sullivan to now address you, and then we'd be happy to answer any questions that you have.

S. Sullivan: Thank you very much. I'd like to take the opportunity to provide a little bit of history and context to the piece of legislation that you're considering in your committee today.

Back in 1992 the provincial government, as you might remember, appointed, as he then was, Mr. Justice Wally Oppal to conduct a wide-ranging Commission of Inquiry into Policing in the province of British Columbia. His commission took two years to complete, and his research and consultation was quite far-reaching. In fact, a more thorough review of policing has never been done in the province of British Columbia.

One of the primary focuses of his commission was citizen complaints and discipline. He researched different models throughout the world, and he consulted
[ Page 165 ]
with the public, community groups, policing groups and other stakeholders. When he issued his report, Closing the Gap, in July of 1994, he made 72 recommendations for changes to the system dealing with citizen complaints and disciplinary issues, including the creation of an independent Police Complaint Commissioner's office.

He recommended that we continue to have the police investigate police but have strong civilian oversight through the complaint commissioner. He recommended a more open and less criminal form of hearing for police officers accused of public trust misconduct. He recommended the adjudication of alleged public trust misconduct by an impartial body, and he recommended the normalization of employer-employee relations within police agencies. By that, I mean he recommended that disciplinary matters that do not affect the public should be treated in the same fashion as in any other unionized workplace in the province of British Columbia.

When the Oppal report was issued in 1994, I was a young constable on patrol in southeast Vancouver. I was drafted by the B.C. Association of Municipal Chiefs of Police to review the Oppal recommendations relating to citizen complaints and discipline and report back to them. I've been involved in these processes ever since in one capacity or another.

I remember that following the Oppal report the provincial government of the day issued a discussion paper which outlined in broad strokes what the legislation would look like to implement those recommendations. The government then hosted a series of meetings of key stakeholders over many months, including representatives of community groups, police associations and the chiefs of police. I was involved in those meetings on behalf of the chiefs of police.

We met and worked through the Oppal recommendations and figured out how to actually implement them. There was much discussion and consensus around the table. It was a healthy exercise with the ultimate goal of implementing Oppal's recommendations and creating a system that would function efficiently and be straightforward and unambiguous. Unfortunately, before this stakeholder group could complete its review and recommendations respecting the Oppal recommendations, the provincial government ended those meetings and set about drafting the legislation.

The new legislation, contained in part 9 of the Police Act at that time, was enacted in July of 1998 without any further consultation. It did represent the first significant overhaul of the citizen complaint and disciplinary processes since 1974. I do believe that part 9 incorporated most of Oppal's recommendations and many of the consensus-based ideas that stemmed from the stakeholder group that I was part of. However, the legislation did not fully implement either one.

Part 9 was somewhat revolutionary because it created two processes for dealing with conduct issues. The first, which they called public trust process, was designed to deal with conduct issues that affect the public or a citizen in some way. Because these conduct issues affect the public and, therefore, raise issues around public trust of the police, full civilian oversight and mechanisms for transparency were built into the system.

On the other hand, for conduct issues that affected only the employer-employee relationship, things such as being late for work, dressing in a sloppy fashion — that sort of thing — a separate process was created called internal discipline. That was supposed to be based on labour law principles. This process would not require extensive civilian oversight or transparency and would allow police officers to be treated like other unionized workers in B.C. for conduct issues not affecting the public.

And for the first time, part 9 introduced a process to allow citizens to complain about police service in general or police policies. That process was called the service or policy process.

Part 9 was not perfect, and there were some technical issues with the processes and ambiguities and gaps in the legislation. The very first independent Police Complaint Commissioner recognized those issues, and he created an ongoing working group which met periodically to address ambiguities and technical issues in the act as they arose.

I sat on that working group, along with Tom, this time as a representative of the Vancouver Police Union, as I had been elected to the board. The working group was successful in addressing many issues that arose that everyone could agree on, and we implemented ad hoc corrections to allow the system to work on a day-to-day basis. For the most part, part 9 did work.

Because part 9 represented a significant change to civilian oversight — how citizen complaints and discipline were handled — the act contained a built-in, three-year review process. So in 2001 a legislative committee, very much like this one, was formed to review part 9 of the act. Tom Stamatakis and I, together with other officers on behalf of police unions and associations, appeared before that committee on December 17, 2001, almost 11 years ago to the day. We made submissions about the success of part 9 and also about the gaps and ambiguities in the legislation that required amendment.

We hoped, with some minor amendments, that the ambiguities and gaps could be corrected and the system improved. The legislative committee did make a number of recommendations, but for many reasons, no action was taken at that time.

The reason I'm giving you the history is to just reiterate that the Oppal recommendations still form the basis of what our citizen complaint and disciplinary process is supposed to be. It's very important not to lose sight of that, because of the quite exhaustive work that he did at the time. In fact, Oppal's work was quite groundbreaking
[ Page 166 ]
at the time for how citizen complaints should be investigated. In fact, our legislation, part 9, formed the basis for some of the other provinces' legislation that followed, in terms of the various different processes.

I also wanted to illustrate the fact that extensive consultation with key stakeholder groups such as ours has been done in the past and, I believe, led to some pretty good legislation that not only captured Oppal's recommendations but also captured sort of the practicalities of making the system work.

Now, part 9 was in existence for about 12 years, from 1998 until 2010. While not everyone agreed with the structure of the processes or the philosophical underpinnings, I believe that for the most part it did work. There was independent civilian oversight, and I think citizen complaints and disciplinary matters were addressed in a systematic, fair and consistent manner — a vast improvement over the 1974 system.

In 2005 the provincial government appointed Josiah Wood to review part 9, with a view to making recommendations for improving the existing system. I was very happy when this review was announced. We hoped that finally some of these ambiguities and gaps in part 9 would be corrected and the system would work even better than it had been. I had the opportunity to meet with Josiah Wood during his review and discuss some of the issues that I was aware of. Tom Stamatakis also met with him, as did many other groups and stakeholders with varying perspectives.

His report came out in 2007, and shortly thereafter the provincial government accepted his recommendations and committed to implementing them. The revised legislation came into effect in March 2010, about two and a half years ago. Much to my chagrin, they rewrote the entire legislation rather than just undertaking the amendments.

Tom hinted at this, but I think one of the key issues for us is that by rewriting the entire thing, many of the aspects of the former legislation were left out. We don't know why. It was nothing that Wood had commented on in his recommendations, but miscellaneous bits and pieces were left out. Defined terms were changed or not used anymore — for example, "public trust process." You know, "the public trust process" is a very descriptive term. Everyone knew what it meant. In part 9 you will not see the public trust process mentioned.

You will not see "public trust complaint," which was another term that was used. Instead, we're left with the process "under division 3," which isn't very descriptive. I don't know why they took that away. Wood did not make any recommendations about that, and it's troubling to me that we dismantled a system that was actually working quite well.

Now, needless to say, Josiah Wood didn't agree with the B.C. Police Association's perspective on every issue, and we certainly didn't expect him to. What I will say is that we do accept his recommendations. We think that his recommendations represent improvements to the system. But many of his recommendations were given in broad sweeps. They weren't specific. So some work was left to be done in terms of actually putting together the legislation to make the system work.

We were looking forward to stakeholder meetings, like had occurred in 1996 and 1997, but that did not occur, and for whatever reason, there was very little opportunity for input into how Josiah Wood's recommendations would be reflected in the amending legislation. I do believe that the lack of meaningful consultation with people and groups that work with this process on a daily basis — the Police Complaint Commissioner, police associations and chiefs of police and investigators that do the work — meant that the legislative drafters were unfamiliar with certain practical realities of implementing such a complicated process as this system is.

We did not have an opportunity to review the draft legislation to analyze how the various pieces of it fit together to make sure that it worked. In fact, it does not fit together. Mechanically, it does not fit together. The timelines overlap in ways that create problems for the system, amongst other issues which are detailed in our lengthy submission.

To say that we are in a worse place now than we were when part 9 was in existence, strictly in terms of how clear the legislation is and how smoothly the process functions, is an understatement. We're not here to argue against Wood's recommendations or the philosophy of civilian oversight. We accept it. We agree with it. We simply want the legislation to be simple and straightforward. We want a process that is timely, predictable, fair and balanced. From our perspective and that of our members, we do not have that right now with this current legislation.

In our written submission you will find a myriad of issues that we have highlighted. There are obviously too many to go through today. Many of them are technical legal issues that impact upon fair process for respondent police officers, police officers who are under investigation.

Some of the issues create unfairness for complainants. Many make the process much more complicated and uncertain than it needs to be. We are hoping that our submission today will inform committee members that despite the relatively good news coming out of the Auditor General's report, the legislation itself is problematic, and because of that, our system is bogged down.

The legislation results in new difficulties on almost a daily basis. Tom mentioned the number of court challenges that we have had. It's been overwhelming how many judicial reviews we have had with significant issues being addressed by the court. We would like to see a working group formulated to properly analyze the issues and possible solutions and create a framework
[ Page 167 ]
for amending what we now have to properly implement Wood's recommendations in a system that actually fits together and works well and is clear to everybody.

T. Stamatakis: We'd be happy to answer any questions. I think we tried to give you a sort of…. My comments were more directed at the immediate, right now, in the context of your mandate. Sheila tried to give you a bit of a background.

At the end of the day, we have an interest in making this work, because ultimately, if the public isn't satisfied with any system we have in place for civilian oversight of police conduct issues, it's frustrating to them and it makes it more difficult for our members to do their work. Our members get frustrated because these processes go on and on forever without getting to some kind of a reasonable outcome.

I think the frustrating piece for us, having been involved for as many years as we have been…. We're all on the same page in terms of the importance of having effective oversight of police conduct in this province. It's just that we don't seem to want to get there in a very simple way. That's been a frustrating process for all of us.

L. Krog: Forgive me. I want to stray away from the substance of your submission today. It's around the use of the Tasers, generally. Can you offer the committee any comment about the dramatic reduction in use across the province? And in particular, with the VPD, which I'm sure you're familiar with. Is that due to better training? Is it a necessary caution, perhaps? What, if any, light can you shed on that reduction?

T. Stamatakis: I think I would say two things. One is that there are clear, more consistent standards. I think that even after the Braidwood review and recommendations, the training is largely the same as it was before. Most police departments in the province of British Columbia had moved to those kinds of training standards. That's one piece.

The other piece is…. We've made a written submission to the committee around this. What I'm saying now is based on my own feedback we get from members. It's anecdotal. We haven't done a specific research piece to drill down on it. A lot of my members are just opting out. We've swung, in my view, the pendulum from one extreme to the other, and we've created a system of standards and expectations that go too far.

We've created a situation where the threshold is so high that by the time you get to the point where you think you can deploy with the CEW, you're now into the realm of using deadly force. Because the CEW is a tool that may or may not work when you're into that kind of a dynamic, intense situation, you don't have the time to guess that this particular piece of equipment might work or that it might not.

If it doesn't work, then somebody is going to get hurt. It's either going to be the member of the public that was there to help, or it's going to be the police officer who now doesn't have time to transition to another response because of the dynamic situation that he or she might find themselves in. It's a real concern for us, and I tried to highlight that in our written submission.

L. Krog: So I'm clear on how it can be deployed, I have to have had the training in order to have the Taser available to me, and that obviously doesn't include every officer on the front line, so to speak.

T. Stamatakis: What's happened is that a lot of the agencies are responding differently. In some jurisdictions it's every officer that can take the training, that's available to take the training. It's not every single officer by mandate.

You're right. Not every police officer deploys with a Taser. Most departments try and deploy quite strategically. They try and place the officers that do have the CEW training so that they're distributed throughout the organization so there'll be some capability or capacity to respond with the CEW in almost every situation or, within a reasonable amount of time, to get that option there.

It's not consistent. It's totally appropriate to have the appropriate training, the high standards in terms of who's qualified to carry the CEW. The issue, from our perspective, is around the threshold and where that should be when it comes to deployment.

L. Krog: Again, I appreciate that you may not be able to respond to this, but can you comment on whether or not either the police are being placed in dangerous situations themselves and/or the individuals on whom the Taser might otherwise be employed? I'm thinking particularly of those having a severe psychotic episode who perhaps wouldn't respond to the normal use of force, or you don't have enough officers in place at the time to deal with it in that way. Is that a concern?

T. Stamatakis: In my view, when you create an environment where police officers become more concerned about potential liability and the very onerous and difficult processes that they have to go through when they deploy the tool and, after the fact, when it's examined…. When you create an environment where that starts to outweigh the desire to be able to respond with that tool,
[ Page 168 ]
then you're creating an unsafe environment where people are going to get hurt.

I have been involved in police-involved incidents where people have been seriously injured or died. It's unfortunate, but it has happened in certain circumstances for many, many years. I have gone through I don't know how many coroner's inquests where recommendations come out saying: "Police should have an alternative to using deadly force." We wholeheartedly support that, yet when we identify that alternative, we create this environment where we discourage people from taking advantage of it.

Not to say that any level of force at all comes with some risk. There's no question that deploying the CEW does come with some risk, but that's why you have the appropriate standards. That's why you make sure that people who deploy with it are properly trained and that there's a good system for ensuring that the training is maintained and that it's deployed in a consistent manner.

You've pointed out a number of police forces in the province. Obviously, members of your association have made changes in the practice, etc. Can you point to any specific instances where there has been a serious injury or death involving either the officer or officers involved, or the individuals, in situations where it is felt or recommended or thought that the use of a Taser properly employed might have prevented that injury or death?

T. Stamatakis: Oh yeah, I could come up with examples. I don't have anything off the top of my head, but I do know that there are, and I can follow up with some specific information, if you like, after. There have been situations where the Taser has been deployed and it just hasn't worked and people get hurt as a result of it not functioning properly. It's a question, again, of where that threshold is.

The other problem we have in this province is that…. We have a series of municipalities that are policed by municipal police forces. I think part of what shone the spotlight on the CEW is that we are also heavily policed by the RCMP in this province, and because of their structure, there were some inconsistencies in terms of standards of training and deployment within the RCMP versus municipal police forces.

Even today we work off two different — quite similar but different — use-of-force models, because the RCMP are essentially run out of another part of the country, and our municipal police forces are solely the responsibility of the provincial government and also, obviously, heavily influenced by their municipal police boards and councils.

L. Krog: To go back to my question, I wasn't so much thinking of situations where the Taser's been employed and not functioned properly.

I'm thinking about situations that have been analyzed subsequently where an officer was injured by an individual when they might otherwise not have been because the Taser was employed in a timely way or, alternatively, the individual's been injured as a result of police having to use significant force because they didn't employ the Taser, which otherwise might have resulted or saved the use of force itself.

T. Stamatakis: Yeah, there are examples. One of the biggest…. I just want to be careful about what kinds of examples I do give. One of the issues is that when it's not issued to police officers broadly, then there will always be the circumstance where…. If you had someone trained to use and deploy with the CEW at the scene, then obviously that's an option that you could use ahead of a higher level of force.

There have been lots of examples, but I guess the most recent one that's gotten some attention is the situation with Paul Boyd, who was ultimately shot — quite a controversial incident. In that circumstance we didn't have somebody there that could deploy with a CEW or some other less-than-lethal-force option. We have some options in our toolkit that we can deploy, if they're there.

M. Coell (Chair): One more, and then I'll come back to you because I thought of….

L. Krog: I want to give credit to my friend Mr. Hogg for some of the questions I've been asking, although he might not want to take responsibility for them.

One of the concerns that has been raised is that officers are not taking the training because it's not mandatory. Therefore the situation you've described, where you may have two or three police on the scene and none of them be in a position to use the Taser, even though police judgment would in those circumstances have dictated the use of the Taser as the best method of controlling that individual. Is that a problem?

T. Stamatakis: That is a problem. From my perspective…. I was a use-of-force instructor. My police service, when I was active operationally, was operational on the street.

Anytime you're confronted with a high-risk situation where you're dealing with a violent person who's either suffering from some type of mental health issue or intoxicated by some type of a drug or other substance…. Anytime you can control that person without having
[ Page 169 ]
to engage and use a tool that allows you to do that, it's always a better option than having to engage with the person, either with physical force or other pieces of equipment — we have the baton — which create lots more potential for injury or risk to both the individual or the officer than the CEW does. It's a way better option.

But we are in a situation in this province where, for a variety of reasons, not every time we respond to one of those calls will there be that option.

J. Trasolini: The comments — or at least the conclusion that you've reached, based on your own perhaps anecdotal evidence — would lead me to think that, in fact, the drastic reduction is due to their reluctance in the use of the Tasers.

T. Stamatakis: Yes, I would say that that is a contributing factor, but I don't want to diminish the importance of good standards, consistent standards, and consistency around the training, because that's another piece of it that's very important. That has made a difference too — if I look back to when we first acquired the CEW, quite a few years ago, to where we're at with it today.

That being the case, would you say that more, I guess, of an increase in training and severity of persistent training would in fact alleviate the fear of usage?

T. Stamatakis: I think the issue is that we're where we should be in terms of the standard and the training. I think the real issue, from our perspective, from a front-line policing perspective, is where the threshold is.

In our view, the threshold is too high. By the time you get to where you meet that threshold — you've got to have reasonable and probable grounds to believe that somebody's going to be grievously injured, that there's going to be bodily harm — it puts you in a position where you're now….

You know, you're at the end of the game. That's probably not the right word to use, but you're at the end of the process. You're now making decisions about: how do I get immediate control of this person? You can't guess wrong — right? You can't take a time-out and say: "I used the Taser. It didn't work. Time-out. Let's regroup and start over again."

You've already gone through your process of trying to identify what the appropriate level of force is in the circumstances, and you've got to make the right choice.

J. Trasolini: If I heard you correctly, you said that in fact, in situations where you're trying to de-escalate the situation, you might get to a point in time when you will not be able to use a Taser anymore and you would have to use more drastic, lethal force. Am I correct in hearing that?

J. Trasolini: Then that is a bit of a conflict in what we've been hearing, in that de-escalation needs to be really front and centre in the approach. But what you're saying is that that may lead to….

T. Stamatakis: Let me give you context. De-escalation has become a trendy term to use, but police have been engaged in using tactics…. You know, the terms change and how people talk about it changes, but de-escalation is at the core of what police do in any community. The fact is that in this country we use force — and there have been studies that support this — about 4 percent of the time. That's consistent across the country, including in this province.

Of all the contacts we have with the public, we actually only ever use force about 4 percent of the time. Of that 4 percent of the time, it's actually around just over 1 percent that we use any kind of significant force at all.

The fact is that police officers every day de-escalate situations — usually, in the first instance, just by showing up in uniform, wearing the distinctive clothing and having all these tools on our person. That de-escalates the situation. Then the first response for front-line police officers always is to engage, to use verbal skills, dialogue, to try and de-escalate the situation.

There are many occasions, though…. I was a crisis negotiator for quite a few years with the Vancouver police department. There are many times when you're talking to somebody who's suffering from a mental health issue or intoxicated by some type of drug or another where you go from where you'd think they could sit in the room with us here today and fit right in and be no problem to, within seconds or minutes, completely changing their demeanour and becoming quite a different person to deal with.

That's the problem. De-escalation is the most important thing, and we should always put that at the front of any response to any issue, but we need to be prepared, when that doesn't work, to respond appropriately.

The CEW should be one of those tools that we have access to, to deploy so that we can respond that way before we have to go to even more serious and higher levels of force.

K. Corrigan (Deputy Chair): I don't want to forget the very thoughtful submission that you made about the provisions of part 11, but I'm going to follow up as well, and we'll be reading this very carefully and certainly thinking about it. Thank you for that thoughtful submission.

I'm going to also follow up on the use of Tasers. Frankly, we've been waiting for you to come, because we think you have important information that you can provide us — as front-line officers. So my question is on Tasers as well
[ Page 170 ]
— a few questions that I have.

I'm wondering if you feel that the significant reduction in the use of Tasers is a result of the negative publicity that resulted largely from the Dziekanski case, or is it what you're also talking about, which is the standards themselves and the onerous level of the standards? Is it some combination, or is it…?

T. Stamatakis: It's a combination. It's both. We talked a little bit — and the Auditor, in his findings in his summary report, talked about it — the length of time some of these processes take to be concluded.

It is both. It's the publicity. It's the fact that if you deploy your Taser, you're now into this process that could go on for one or two years. It's very stressful for our members to be the subject of an investigation around something that they've done that goes on for quite some time, which is often the lead story in the news, TV, radio, print. So it is all of those things together, I think.

K. Corrigan (Deputy Chair): I'm wondering if you have thought about what, specifically, it is in terms of the threshold. You just said that de-escalation is a natural part and a good part of the work that officers do. So it sounds like you agree, to some degree, even if it's a quick flashing it through the mind, that de-escalation is or is not going to work. So that seems like that's legitimate. What is it about the threshold, specifically, that you've got concerns about?

T. Stamatakis: I think it's the tying it into this whole grievous bodily harm and imminent risk of harm that ups the ante a bit and discourages people, then, from….

It's one thing to say that you've got to engage in this kind of response — de-escalation techniques — first. We support that. I absolutely support that. I think that anytime you can resolve a situation without using any force at all, that's exactly what the police should be doing in communities across this province.

The standards are appropriate, too, in terms of the training. We want to make sure we have the right people deploying this tool, that they get the right kind of training, that we're doing the kind of auditing to make sure the equipment is working the way we think it should, that we're testing to make sure it's not exposing the people that we deploy it on to unnecessary risk. We should be doing all those things — no dispute around that.

But when you set the threshold for deployment to such a high level, I think it discourages police officers. Combined with the attention one of these incidents garners in the media and then the processes that you end up having to endure, it really has a chilling effect on police officers when it comes to saying: "All right. I want to knowingly and intentionally put myself in that situation where now, if I deploy, I'm exposed to this kind of second-guessing and really rigorous scrutiny around what I did, even though what I did is probably very consistent with what the expectation is."

You've got to remember that these police officers are doing what we expect them to do. They're doing what the organizations that they work for tell them and expect them to do, and they're doing what the public expects them to do. Then, after the fact, they're dragged through the various processes that we have, and it's not a happy place to be if you're a police officer.

K. Corrigan (Deputy Chair): Some of our evidence has indicated that the jury is still out, to some degree, on the medical risks and how use of force, when it's a CEW, compares with use of force where there may be a death related to another type of use of force. I'm wondering: if there is a use of force and then there's an extensive review process, is it your belief that there is a much greater both public and process scrutiny if there is CEW use, as opposed to other types of use of force such as holds and so on?

K. Corrigan (Deputy Chair): Even if, possibly, there was a death related to another…?

K. Corrigan (Deputy Chair): One of the suggestions that has been made — one of the results of publicity thresholds, or whatever — with the reduction of the use of Tasers is that it is some of the most experienced, older officers who are the ones that you would actually like to see having the training and using Tasers, because of their experience — that some of those people are shying away from it and that it's more younger officers, who may not have the same judgment and experience, who are the ones that are doing the training and using Tasers. Do you think there's any truth to that?

T. Stamatakis: Anecdotally, I would say that yeah, there's probably some truth to that. I think the more experienced officers do have a tendency to avoid taking on that responsibility, and the younger, newer officers…. They are younger. They are newer. They are less experienced, so they maybe don't think of the potential implications as much. I think that's probably a fair comment.

Again, I want to make clear that we haven't done any kind of specific research to determine that.

One of the things that we have heard evidence about, submissions, and have talked about is the reporting that must be done after the use of a CEW. We have talked about the SBOR form — the fact that the municipal
[ Page 171 ]
form talks only about whether or not there was any conversation with the individual, as opposed to specifically whether there was CID, crisis intervention or de-escalation.

One thought is that perhaps there should be something just a little more specific — even just a rewording of that question to ask whether or not de-escalation and crisis intervention was used, as opposed to just: "Did you talk to the person?" Do you have any thoughts on whether that would be an appropriate change to that form?

T. Stamatakis: First, let me say that I think recording after deployment is a good thing. We have taken a position that we support the SBOR forms and what they are trying to accomplish. I think it will create some context in this province, much like I'd already referred to in terms of how few times we actually do use force.

Generally, I would agree with what you are saying. My only concern is…. Again, it's around what happens after the fact. I hate to say it, but we're in an environment in this province where it almost feels like unless we've got a police officer burning at the stake or hanging from the nearest oak tree, people aren't going to be satisfied.

The risk is that police officers…. I'd love for police officers to write quite detailed explanations around why they do certain things on these SBOR forms or some other form. But then after the fact, like I said, it's scrutinized to the nth degree. People use what they say to then criticize the officer even further, so it creates a bit of jeopardy.

That's my only caution. I agree with what you're suggesting. I think it would be a good change, provided that there's not an expectation that we somehow put police officers in the place where they're potentially exposed to greater jeopardy.

Often, at the end of the day, we're lawfully authorized to use force, unlike most other citizens. We're expected to use force to gain control of situations where it's appropriate. But if we guess wrong, because sometimes you are making a split-second decision, then we can also face criminal charges. So that's the risk.

G. Hogg: Within the training continuum, I'm asking for your informed opinion on the issue of continuum. I'm assuming that newly trained officers in the last period of time…. Would they, within their original training before becoming a police officer, have training with respect to the use of CEWs?

T. Stamatakis: There is a bit of training around CEWs when they do their initial training at the Justice Institute. In order to deploy with a CEW when they graduate from the police academy and come into whatever agency has hired them, they would have to take the prescribed training before they could deploy within their department.

T. Stamatakis: I think it's worth having it to the extent that it exists now, in that it gives them some familiarity with the equipment. It also gives them, at the start of their careers, some context for use and deployment. So I think it's worthwhile from that perspective.

You've got to remember that typically, you're going to have multiple police officers responding to the kind of situation where you might deploy the CEW. I think it's very useful for everyone there to know what that piece of equipment can or can't do and to be in a position to respond if there's a loss of control of the CEW or something like that. So I think there is value in having some piece of that.

S. Sullivan: I'll just add a comment too. It's important to remember that the training that the police get at the beginning of their careers is extremely intense. It's very short in duration. In fact, the actual recruit training has been reduced by many weeks, and the number of topics and issues that they have to learn has grown exponentially — from legal issues to technology to the different tools that they have.

So it's very difficult, I think, to add. I do a lot of teaching for recruits and other police officers, and I hear a lot of them say that by the time they get out of the academy, their heads are just swimming. They're having a hard time retaining the information.

It's kind of like going through law school. You know, you're book-smart, but you're not street-smart yet, and you have to take some time to sort of synthesize that material. So a little bit of a delay, I think, is better, until they get right into the technical requirements of the weapon.

G. Hogg: My assumption is, looking at the continuum of force…. You're saying, within the continuum of force — which is taught at the JI, or the training course — that there is enough of a component of the CEWs to put it within the context of the continuum of force. Then at some further point they get accreditation and then have to be reaccredited along the line, and we are satisfied with that.

G. Hogg: Second question. I think you made an important point with respect to the balance between the rights of citizens and public confidence and the rights of the member. I think you appropriately pointed out the delicate balance that sits there and which is often dealt with by media responses to issues and the things that go through that.

If I can ask a question which may be on the edges of our mandate, or it may be even over the edges. I met
[ Page 172 ]
with a former RCMP officer who is now a member of the TransLink police and a couple of members last week. Just looking at your issue of procedural ambiguities and inconsistencies, they told me that…. And we had a conversation, a conference call, with some members of the Solicitor General's ministry, looking at this issue. So I wanted to ask you about it.

The issue in particular is that there are circumstances by which a senior officer may have a complaint against a member with respect to something they did with the public, and they filed a disciplinary action. Then they get to sit as the adjudicator on that. And I think there's a third appeal process in this one example which they were looking at.

If I complained about Murray, then Murray's complaint…. His recourse was to come back to me because I was the appeal officer. I said: "No, I was pretty smart the first time. I'm not changing." And then, on the third appeal process, I chair the appeal. It comes back to me again, and I say: "No, I'm still pretty right, Murray."

In terms of natural justice, that doesn't seem to be an appropriate process. Are you familiar with that? Is that something which is in part 11 of the Police Act which references that, where one of the members of the police force could be put in that circumstance, where they're being reviewed and reviewed by the person who made the allegation?

S. Sullivan: Yeah, I'm chomping at the bit. You know, this does really get into some real intricate details of the process.

G. Hogg: But if that does happen, I think that's important in reference to the balance in that respect.

S. Sullivan: What I will say is that if you look at the overall process, it is contemplated within the statute that the senior officer directs and supervises the investigation into the allegation. After the investigation is finished, they would review all of the evidence and determine whether or not there's sufficient evidence to go forward to an adjudication to see whether the person would end up being disciplined. And the act does contemplate that same senior officer sitting at the disciplinary hearing — okay? Some of our members are concerned about that.

It is contemplated…. If you look at some of the case law, you will know that procedural fairness is a fluid concept in the realm of administrative law, which is what this process is, and you're not guaranteed the same kind of rigorous procedural fairness that you would be in the criminal process. So I don't think the fact that the same senior officer who sort of put forward the allegation and supervised the investigation is now sitting at the hearing violates any sort of actual procedural fairness that would be guaranteed by the Charter or something like that.

However, if you get a senior officer who you feel is biased against you, then it feels like you're being treated unfairly. And that does happen from time to time. I will say that some of our senior officers maybe do not have sufficient training and education to understand what their role is when they're sitting…. It's called the discipline authority. When they are in that role, they need to have some pretty sophisticated understanding of administrative law, and most of them don't. So we have had some challenges.

But I think that, overall, the system can work. I don't think the system itself is procedurally unfair in that regard.

G. Hogg: So the members always have the option to go to the Police Complaint Commissioner within that, I assume.

S. Sullivan: If they're not happy at the end of their disciplinary proceeding, they can ask for a public hearing, which is a very costly exercise, as you know.

S. Sullivan: There are certain circumstances when they're guaranteed a public hearing, and that would be only for the most serious cases where they are looking at being dismissed or having a reduction in their rank. They're guaranteed a public hearing if they ask for one in those cases.

For more minor discipline, they can ask for one, but the complaint commissioner can say no. So they're not guaranteed that sort of fair, independent, separate process.

G. Hogg: So despite the fact that you're saying…. If there is procedural fairness in that process where I get to say, "Murray, I saw you doing something really stupid, and I'm going to discipline you," and Murray comes back and his appeal process has come to me three times, you're saying that that isn't in conflict with procedural administrative practices.

It certainly is inconsistent with common sense and best practices. When I was a warden, if I put discipline in place…. I would never allow myself to have an appeal come to me when I've meted it out. Why is that part of this?

T. Stamatakis: This gets to the guts of our submission. You know, it can go sideways, but you've got to remember that the intent originally…. And this goes back to what Wood's recommendations were. In our process…. There
[ Page 173 ]
are these internal processes, and the idea was that you would…. If there was a complaint and you could resolve it quickly, you'd use these internal processes to get to a quick outcome. What has happened, though….

This really gets to the heart of our submission. Because of the conflicts between different provisions and the ambiguities and whatever, it has become, even in those internal processes, overly complicated or legalistic. So then you get into these long, drawn-out processes. And you get this feeling like there's this bias — right? — that flows from the process. But if it's allowed to work the way it's supposed to, before that DA is the first time that the officer who's the subject of a review into his or her conduct…. That's when they get to say, "Well, here's my side of the story," kind of thing.

S. Sullivan: And it's important to remember, too, that at the point where there's a disciplinary proceeding — some people are calling it a hearing, but it's called a proceeding in the act — that is not an appeal. You have the investigation. There's kind of an administrative decision made after the investigation whether there's enough evidence to actually have a hearing or not. So that's an administrative decision.

If the conclusion is yes, there is sufficient evidence that maybe there was misconduct, now you have a hearing. That's the first hearing. It's not an appeal. It's where you get to present your side of the story at that hearing, and only after considering all of that is an actual decision made about whether or not the allegation is substantiated.

A lot of the members are looking at the disciplinary proceeding as an appeal, but it's actually not an appeal.

G. Hogg: The administrative decision point, though. If I've meted out the discipline and then I'm making the administrative decision to substantiate it, then it doesn't….

T. Stamatakis: If you contrast it to a grievance process, at that first stage of the process there's no discipline imposed. What it is…. If you compare it to a grievance process, it's the initial investigation and then a finding by the employer that the employee has done something wrong. Then, the discipline proceeding is where the employee gets to say: "Wait a minute. You've got it wrong. Here's what I've got to say about what happened."

The discipline authority, at that point, can say: "Okay. I'm convinced by your submissions." And then you'd change the outcome. It's only after that that discipline is actually imposed. It's part of the….

G. Hogg: It's not making any sense to me in terms of common practice and in terms of what you said.

T. Stamatakis: Because it's not…. That's part of our submission, again — to normalize. That's exactly what happened when Wood did his review. In the drafting they changed all those things and it went away from what Oppal recommended, which was to normalize the relationship between police employers and their employees so that you can deal with these issues in a fair way.

G. Hogg: My last question for you would be, then: are you saying that the legislation in part 11 is okay? It's just the way it's being implemented. Or is there a substantive problem within it with respect to the reviews that are taking place?

S. Sullivan: There are a number of substantive problems that do create unfairness. Just going back to your previous question, what I was saying is that the law does not guarantee absolute procedural fairness in an administrative process.

M. Coell (Chair): I know some members have to leave right at 2, but Kathy, you have one more question.

K. Corrigan (Deputy Chair): I just have one question. I was a little surprised and slightly shocked when you said that we're in a worse place now than we were when we had part 9 and suggested the solution is a working group to create a framework. I'm wondering if you've made that request.

T. Stamatakis: What's happened till now is we identified, like I said earlier, the issues early on in the process, right through the consultation fees, before the legislation was enacted and proclaimed. What we were getting was assurances that there would be this review, and that would be the opportunity to fix some of the issues that we have identified consistently since the drafting started.

Clearly, though, you have a very narrow mandate that doesn't include that. That's part of our submission. We get that. But if you can, make a recommendation that something more needs to happen.

M. Coell (Chair): Thank you, Tom, and thank you, Sheila, for a very detailed submission — and very thoughtful. It's greatly appreciated by us.

T. Stamatakis: You're very welcome, and we appreciate that you made some time for us to come. There was a little bit of confusion, I guess, around booking a time, so we appreciate it. Thank you.

M. Coell (Chair): I don't have any other business for the committee. So a motion to adjourn.

Hansard Services publishes transcripts both in print and on the Internet.
Chamber debates are broadcast on television and webcast on the Internet.
Question Period podcasts are available on the Internet.

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-Similkameena 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:	Tom Stamatakis (President, British Columbia Police Association)
	Sheila Sullivan (British Columbia Police Association)

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