Review the Independent Investigations Office — Issue No. 3

Present: Mike Morris, MLA (Chair); Spencer Chandra Herbert, MLA (Deputy Chair); Kathy Corrigan, MLA; Scott Fraser, MLA; Scott Hamilton, MLA; Dr. Darryl Plecas, MLA; Jackie Tegart, MLA

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

• Jamie Deitch, Executive Director, Criminal Justice and Legal Access Policy Division

• Anita Nadziejko, Senior Policy Advisor, Criminal Justice and Legal Access Policy Division

• Sarah Mason, Research Officer, Criminal Justice and Legal Access Policy Division

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

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO
REVIEW THE INDEPENDENT INVESTIGATIONS OFFICE


CONTENTS
Page
Briefing: Independent Investigations Office	11
J. Chalke
J. Deitch
Committee Meeting Schedule	20

M. Morris (Chair): Well, good morning, everybody. We'll convene the meeting on the Special Committee to Review the Independent Investigations Office. Today we're pleased to have some representatives from Justice here to give us a little bit of background on it.

Maybe, Jay, I could get you to introduce yourself and your team to the committee members.

J. Chalke: Good morning. My name is Jay Chalke. I'm the assistant deputy minister of the justice services branch in the Ministry of Justice. Our branch has policy responsibility for the independent investigations office. It's important to note that the IIO operates independently from the ministry due to its role.

With me this morning making this presentation, to my left, your right, is Jamie Deitch, the executive director of the criminal justice and legal access policy division. Also in attendance are Sarah Mason, research officer, and Anita Nadziejko, senior policy adviser in the Ministry of Justice.

M. Morris (Chair): Great, thanks very much. We'll get our board to make their presentations. Scott, you can lead off with your introduction.

S. Hamilton: Okay. I'm Scott Hamilton. I'm the MLA for Delta North. Pleased to meet with you and learn as much as I can about the IIO.

D. Plecas: Darryl Plecas. I'm the MLA for Abbotsford South and the Parliamentary Secretary to the Minister of Justice.

S. Chandra Herbert (Deputy Chair): Spencer Chandra Herbert, vice-Chair of the committee and MLA for Vancouver–West End.

K. Corrigan: Kathy Corrigan, MLA for Burnaby–Deer Lake and Justice co-critic with Leonard Krog.

S. Fraser: Scott Fraser. I'm the MLA for Alberni–Pacific Rim. Thanks for doing this and helping to start us off in this process of investigation.

Jay, we can start off, then. You can start with your presentation, and we can follow that with any questions that the committee has.

J. Chalke: My presentation is up on the screen behind you, and I believe you have a hard copy in front of you.

British Columbia's independent investigations office began operations in September 2012. The Police Act requires this committee to undertake a review of the IIO. I'm pleased to provide you today with a detailed overview of that office.

Specifically, Jamie Deitch and I will discuss the origin of the independent investigations office, its mandate and the two matters important to you as you carry out your review: the office's operations and administration and its progress towards civilianization. I'd be pleased to answer any questions that you have at the conclusion of my presentation.

The formation of the IIO was based on recommendations made by two public inquiries held over the last seven years. These inquiries and their recommendations attempted to address public concerns about the police investigating themselves.

In March 2007 Justice William Davies was appointed to lead the commission of inquiry into the circumstances surrounding the 1998 death of Frank Paul. Mr. Paul had been arrested in the Downtown Eastside by Vancouver police officers for being intoxicated in public. He was taken to the VPD's jail facility, but several minutes later he was taken from the lockup, placed in a police van and thereafter left in an alley in East Vancouver. Mr. Paul's body was found at the same location early the following morning.

Justice Davies's inquiry focused on the Vancouver police department and recommended that British Columbia develop a civilian-based criminal investigation model for the investigation of serious police-related incidents that occur in municipalities policed by the 11 municipal police departments.

Following the death in late 2007 of Robert Dziekanski, who died shortly after a conducted energy weapon was used against him by the RCMP at the Vancouver International Airport, government appointed the hon. Thomas Braidwood in February 2008 to head the commission of inquiry into his death.

Justice Braidwood built on the recommendation made by Justice Davies and expanded it to include provincewide jurisdiction — that is, municipal police departments and the RCMP. Government accepted the recommendations of the 2010 Braidwood report and committed to creating a new civilian-led unit to independently investigate all municipal police and RCMP-related deaths and serious incidents across B.C.

I want to now turn to the broader context regarding civilian oversight of policing in the province. Prior to the independent investigations office being established, there
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were two civilian agencies in British Columbia that provided police oversight.

One is the Police Complaint Commissioner, who is an independent officer of the provincial Legislature whose office oversees the investigation of complaints about the conduct of municipal police officers and departments in British Columbia. It does not conduct criminal investigations.

The other is the Commission for Public Complaints Against the RCMP, an independent civilian agency created by the federal parliament to ensure that public complaints made about the conduct of RCMP members are examined fairly and impartially. The commission is not part of the RCMP, and it also does not conduct criminal investigations.

With the passing of Bill C-42 in June 2013, a new Civilian Review and Complaints Commission for the RCMP will, when it comes into force, be created to replace the existing Commission for Public Complaints Against the RCMP. Most notably, the bill sets out the authority for the new CRCC to have broad access to information in the control or possession of the RCMP.

The CRCC's investigative powers are also set out in the bill. It will have the authority to conduct joint complaint investigations with other police complaints bodies and to undertake policy reviews of the RCMP.

Within British Columbia and as a result of the 2012 amendments to the Police Act, the director of police services, an official of the Ministry of Justice, has the authority to set standards for officer conduct, to be followed by all police forces in the province.

I want to turn now to providing an overview of organizations in other provinces that are analogous to the role of the IIO. When developing the IIO in British Columbia, there were two existing models of civilian-led response teams in Canada that formed part of the review and planning that we undertook: (1) the Alberta Serious Incident Response Team, and (2) the Ontario Special Investigations Unit. Evidence and the lessons learned from these two jurisdictions informed the planning in British Columbia. Each of these two models has its own unique features.

Alberta's agency was established by a minister's order and became operational in 2008. The Alberta Serious Incident Response Team conducts investigations into incidents involving serious injury or death that may have resulted from the action of a police officer, or a complaint alleging that such an incident has occurred. It has jurisdiction over all police in Alberta and is currently led by a civilian director. It uses civilian and seconded members from municipal police agencies and the RCMP as its investigators.

Ontario's Special Investigation Unit has been in place for over 20 years. It was established by legislation and differs from Alberta in that it does not use currently serving police on secondment, as in Alberta. However, investigators can have a policing background. The director can never have been a police officer.

The Ontario SIU investigates the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers as well as allegations of sexual assault. The jurisdiction is limited to on-duty conduct. The unit's jurisdiction extends to all police in Ontario.

Since the IIO was established in B.C., two more jurisdictions have set up oversight agencies: Manitoba and Nova Scotia. Again, there are features of these agencies that are unique.

Manitoba established its Independent Investigation Unit by legislation, and the civilian executive director was appointed in March 2013. Staff may be civilian or seconded police members from Manitoba or elsewhere. The unit investigates incidents of serious injury or death that may have resulted from an action of a police officer from any police force in the province.

Nova Scotia's Serious Incident Response Team was established in April 2012. It investigates all matters that involve death, serious injury, sexual assault, domestic violence or other matters of significant public interest that have arisen from the actions of a police officer. The director cannot have served as a police officer. Staff on Nova Scotia's team include civilian investigators and seconded police officers.

British Columbia's independent investigations office is unique but seems to share more similarities with Ontario's Special Investigation Unit than the other jurisdictions.

Turning now to the implementation phase of the IIO here in the province. The commitment to establish the IIO was implemented through Bill 12, the Police Amendment Act, 2011. The bill was considered by the Legislative Assembly in May 2011 and received royal assent on June 2, 2011.

A transition team was put in place by government in November 2011 to develop the model for a civilian-based agency appropriate for B.C. and to prepare for the appointment of the chief civilian director, or CCD. Following the appointment of Richard Rosenthal as the chief civilian director, the transition team assisted him in his responsibility to establish the new office and hire the required staff.

From late 2011 until September 10, 2012, the IIO was in a period of transition, from planning and development to implementation and becoming operational. During this period an organizational structure was designed, a budget was developed, staff were hired and trained, a memorandum of understanding between the IIO and police departments was negotiated, office space was secured, and various special equipment was acquired. In short, all of the essential arrangements and elements of the IIO were put in place.
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The office became fully operational on September 10, 2012. The office is located in Surrey, in what had been vacant government-leased space. The IIO's immediate and primary focus was operational readiness in order to carry out fair, unbiased and competent investigations once the act came into force.

Turning to the mandate, the British Columbia government accepted Justice Braidwood's recommendation to create a civilian investigative body, and careful consideration was given in the development of the IIO's mandate. The IIO's mandate is set out in section 38.09 of the Police Act. It is to conduct investigations of death or serious harm involving police officers in B.C. and to determine if the conduct was criminal.

"Serious harm" is defined in the Police Act as "injury that (a) may result in death, (b) may cause serious disfigurement, or (c) may cause substantial loss or impairment of mobility of the body as a whole or of the function of any limb or organ."

As I mentioned earlier, government established the IIO through amendments to the Police Act, in order to give the agency access to the necessary information and tools that are critical to successful investigations. The Police Act gives the IIO jurisdiction over officers in B.C., both while they are on duty and off duty. This is unique to the IIO when compared to the analogous bodies in other provinces I described earlier.

Under the act, for the purpose of the IIO, an officer includes officers appointed as special provincial constables, including transit police; the Stl'atl'imx tribal police, located in the Lillooet area; municipal constables; and members of the RCMP.

Section 44 of the Police Act allows the Minister of Justice or the director of police services to order the IIO to undertake a special investigation in a case that falls outside of the IIO's mandate where it would be in the public interest to do so. This provides an ability to have the IIO do an investigation outside its ordinary mandate in exceptional or unusual circumstances.

As I mentioned, the IIO is headed by the chief civilian director — who, as required by legislation, can never have served as a police officer. The CCD position is a five-year order-in-council appointment with the possibility of reappointment to a second five-year term. The chief civilian director may not serve more than two terms.

The first CCD is Richard Rosenthal, who was appointed on January 9, 2012. Mr. Rosenthal was hired through a merit-based process in accordance with the B.C. Public Service Act and brings to his position extensive experience in civilian oversight of law enforcement.

For 15 years Mr. Rosenthal served as a Los Angeles county deputy district attorney, where he worked in the central trials and fraud divisions and the special investigations division. He was the first director of the independent police review division of Portland, Oregon, and the first independent monitor for civilian oversight of law enforcement agencies in the city and county of Denver, Colorado.

Immediately upon arrival in B.C., Mr. Rosenthal set about to establish linkages and working relationships with stakeholders and participants in the justice sector in communities across the province.

I'm now going to turn this over to my colleague Mr. Deitch, who will describe the IIO investigation process.

J. Deitch: Thank you, Mr. Chair, Deputy Chair and members of the committee. I'm going to broadly be talking about the area that the assistant deputy minister referred to as operations and administration and progress towards civilianization.

The first part is the IIO investigative process. I anticipate you will hear in more detail about this when you meet with Mr. Rosenthal and his senior staff at the independent investigations office, but we thought it would be helpful for you to at least have a bit of an overview.

When an incident of death or serious harm occurs, police officers are required, in accordance with the Police Act, to notify the IIO. That obligation is set out at section 38.09 of the Police Act. Chiefs of police and the Police Complaint Commissioner also have the obligation and must also notify the IIO if they become aware of an incident. That obligation is set out in the following section, section 38.10.

As Mr. Chalke referred to, a memorandum of understanding between the IIO and the RCMP and all municipal police in British Columbia has established a protocol for all aspects of investigations. This includes notifying the IIO at the time of an incident, securing the scene until such time as the IIO can be present, designating subject and witness officers — subject officers being those who are anticipated to have been directly involved, and witness officers who were present at the time of the incident — as well as dealing with the aspect of concurrent investigations.

Section 38.11 requires that when an IIO investigation is completed, the CCD must make a report to Crown counsel if he believes that an officer has committed an offence. Crown counsel is then charged with the responsibility, in accordance with the usual charge assessment process established under the Crown Counsel Act in British Columbia, to determine whether criminal charges would be approved.

In situations where the chief civilian director comes to the conclusion that an officer has not committed an offence, he is permitted under the Police Act, by section 38.121, to publicly report the reasons underlying his decision. That was an amendment to the original Bill 12 provisions that was specifically requested by Mr. Rosenthal after he took over his role in January of 2012.

The legislation was changed to allow for this level of
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transparency. The IIO provides regular updates on the status of investigations whenever possible, so long as those updates will not in any way interfere with the investigation. These are made available through its public website, through reports and updated information.

It's important to note that these public reports, once the investigation has concluded, are meant to set out the reasons that the chief civilian director comes to the conclusion that an officer has not committed an offence. They do not address issues of potential officer misconduct, nor do they deal with the policies or procedures of the police agency. Those are not within the mandate of the chief civilian director or the independent investigations office.

However, the chief civilian director may choose, in appropriate cases, to refer a case to either the director of police services for the province, the Office of the Police Complaint Commissioner or the Commission for Public Complaints Against the RCMP to consider any issues that arise in the course of the IIO investigation. They share their investigation with those agencies in those cases.

If I could then turn to, specifically, IIO investigators. The Police Act sets out, again, the criteria around who may serve as an investigator in the independent investigations office. It's section 38.06. Specifically, investigators for the independent investigations office must not have served as police officers in British Columbia within the past five years.

Currently the independent investigations office employs a blend of civilian investigators and former police officers. Most of those former police officers have never served in British Columbia. There are four investigative teams, with each including a team leader, or a director, and five investigators who work under that individual's leadership.

There's also a specialized team of four investigators who have experience in forensic analysis and traffic reconstruction. The chief civilian director also has the ability to retain consultants, experts or specialists who may be needed for a specific or particular investigation.

If I could then turn to the issue of progress towards becoming civilian. B.C.'s model, as Mr. Chalke has indicated, is unique in many ways. One way in which it's unique is in the statutory goal to eventually become entirely civilian, consistent with the recommendations of the public inquiries.

Government took into consideration both Justice Braidwood and Justice Davies recommendations that the IIO should be entirely civilian. Justice Braidwood put it this way — meaning that: "None of its management, supervisory staff or investigators should have served anywhere in Canada as a police officer."

Justice Braidwood, however, noted that IIO investigators would need to have the skills and experience necessary to conduct major crime investigations, and therefore, it would take time before the IIO could become completely civilian. Because in essence, that is exactly what the independent investigations office is: a major crime investigation unit.

Justice Braidwood suggested a time period of five years to achieve the goal of civilianization. The legislation does not set out any specific timeline. It anticipates, however, that eventually a fully civilian investigative body will be created.

The independent investigations office is currently building on the expertise of its civilian investigative staff. It's important to remember, however, that the IIO conducts investigations to determine whether some of the most serious offences in the Criminal Code have occurred, and it is necessary that those investigators have the skills and the experience required to undertake this type of work. This type of expertise can only be developed either within the IIO or acquired through staffing with former police officers from outside British Columbia.

The complement of investigators as of September, with the additional hiring that is currently underway, will render a combination of 46 percent civilian investigators and 54 percent former police officers. It should also be noted in considering that goal toward obtaining civilianization that forensic analysts and traffic reconstruction experts come primarily from a policing background, certainly in this province, due to accreditation requirements.

At the start of the IIO, when it came into operation in September 2012, the breakdown was 35 percent civilian investigators and 65 percent former police officers.

As I've indicated, the IIO is actively working toward becoming a civilian organization. That is a mandate that has been recognized by the chief civilian director and his senior staff. It recently appointed its first civilian team director into that role, and in the spring of 2014 the IIO has hired three new civilian investigators to fill vacancies that have occurred over the time period. It is now in the process of concluding the hiring process for an additional three investigators, all of whom are anticipated to be civilians and to start work by September.

The ministry supports the progress of the independent investigations office toward becoming civilian. Ministry representatives participate in hiring panels and provide support in the course of organizational development for the organization.

The ministry will continue to monitor the progress the independent investigations office makes towards civilianization through requirements which are set out in the letter of expectations between the Deputy Attorney General and the chief civilian director, which will be referred to later, as well as the annual reports process, which is set out in the statute in section 38.12. That's the Police Act.

The ministry also intends to undertake a review of the independent investigations office in 2016, prior to the term of the current chief civilian director expiring, in order to look further at the progress towards civilianization.
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If I can now turn to some statistical information that sets out the operations and administration of the independent investigations today. This slide depicts the information on the number of cases that the independent investigations office has actually investigated since it became operational. The table covers the period from its commencement, September 10, 2012, through to March 31, 2014. The column on the left-hand side reflects a partial year. The second column, the middle column, reflects a full year of investigations.

In that first period the IIO investigated 16 cases, eight of which involved fatalities, eight of which involved serious harm. A further 58 cases were investigated over the following 12-month period ending March of 2014, with a breakdown of nine fatalities and 49 incidents of serious harm.

Since it became operational in September 2012, the chief civilian director has referred 19 cases to Crown counsel. Of those, to date three have been approved for charges. Some are still under review, I might add, at this point.

If I could then turn to, specifically — looking at it from another context — the cases from 2013-14, since that is the only full year of information. In that year the independent investigations office received notifications, from the agencies it's responsible for oversight, of 223 potential incidents. Of those, 118 warranted a response, meaning that the IIO undertook an initial review to determine whether they should assert jurisdiction over the case. Of those 118, 58 actually received a full investigation, as set out on the previous slide.

Of the 58 investigations opened in 2013-14, 40 had been completed and closed by March 31, 2014. Out of those 40, 13 cases were concluded by a report to Crown counsel, and 27 cases were concluded by a public report from the chief civilian director. Eighteen of those investigations were still ongoing at the end of March.

Finally, if I can speak to the budget for the independent investigations office, as you can see by the third column under 2014-15, the budget as reflected in the estimates for this current fiscal year is $8.1 million. That is a reduction from the previous year of $2 million. This budget, the current year, is the product of good fiscal management, and budget changes like these are not uncommon in new offices or organizations.

The IIO actually has had a lower-than-anticipated caseload volume during its first two years of operation, and implementation costs were not as great as had been anticipated. This has resulted in significant surpluses in each of the first two years of operation, leading to the resulting reduction in the overall budget. However, the budget for this year still represents an increase of $950,000 over actual expenditures in 2013-14.

J. Chalke: I just want to turn now to describe a bit around the transparency and accountability structure for the IIO. The independent investigations office has specific accountability requirements and reporting relationships. Justice Braidwood recommended that the IIO be established within the Ministry of Attorney General, as the ministry was known at the time. The ministry later merged with the Ministry of Public Safety and Solicitor General to form the Ministry of Justice.

The chief civilian director is ultimately accountable to the Attorney General, and the position is functionally accountable to the Deputy Attorney General, through a letter of expectation, in order to maintain independence and separation from other policing matters that fall within the responsibility of the Deputy Solicitor General.

A letter of expectation has been signed by the chief civilian director and the Deputy Attorney General, which sets out expectations with respect to communications, policy development, information sharing, public reporting and compliance with financial management legislation and government policy in that regard, development of performance measures and other administrative matters.

In addition, the independent investigations office is required by the Police Act to provide an annual report to the Attorney General that compiles statistical information respecting the number, frequency, types and outcomes of investigations and any trends related to that information.

The letter of expectation outlines further content requirements of the annual report. Specifically, the letter of expectation requires a message from the chief civilian director; a description of the IIO's structure, mandate, purpose and principles; a description of the investigative process; development of performance measure indicators; and basic budget information.

The letter of expectation further requires that the chief civilian director submit the report to the Attorney General by May 31 of each year for the fiscal year preceding. The 2012-13 annual report was received by government and made public, and another report will be received by May 31 — that would be later this week — as stated in the letter of expectation and will be released shortly thereafter.

So to simply sum up, the legislation to establish the IIO received royal assent in June 2011. The chief civilian director was hired in January 2012, and the office became fully operational in September 2012. The IIO conducts criminal investigations of incidents of serious harm or death involving police officers in British Columbia and has, to date, established itself as a credible investigative agency.

The IIO is making progress towards the ambitious and unique-in-Canada goal of becoming completely civilian. This will take some time as the experience of investigators without a policing background increases over the years. The ministry will continue to monitor the progress of the
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IIO to becoming fully civilian and intends to undertake a review by 2016.

On the progress towards becoming completely civilian, we've seen the anticipated numbers for September of this year. Since there was no timeline established under the act, although Justice Braidwood did suggest five years, just so that we can follow the progress…. In its inception, say September 2012, what was the makeup there of civilian and police background members, just so we can see if we're progressing?

Further to that, is there a policy within the IIO of partnering trained police investigators, those members that have that background, with non–police background members? Is there a set policy so that that training, the experience in investigation, actually occurs?

J. Chalke: In terms of the statistical part of your question, when the IIO was first established, the complement of civilian investigators was approximately 35 percent. As Mr. Deitch indicated, by September, when there are some current competitions underway, the civilian complement will be at about 46 percent.

Progress is being made. You're right; there's no specific timeline in the legislation. I think that reflects the unique challenge that the IIO has, of any such investigative body in Canada. Really, the first goal is to conduct evidence-based, fair, competent, professional investigations. While there's an aspirational goal to become completely civilian, I think there was recognition that there needed to be flexibility in terms of how long that took.

In terms of how the IIO operates, it works in investigative teams, which is standard with major case management. Those teams are comprised both of individuals who have a policing background and civilian investigators. They work together.

To answer your question, that is the plan that they're doing. I'm sure that when you speak with the chief civilian director, he can give you more details about that, but that is the staffing model. As Mr. Deitch indicated, the office has just appointed its first civilian team director in charge of one of those teams.

K. Corrigan: I wanted to just get a clarification. I think you probably said it, but I wasn't really clear.

Two questions. The first one is: how many actual charges have there been? You have reports to Crown counsel. How many actual charges have there been, and have there been any convictions yet?

J. Deitch: There have been three charges approved at this point by Crown counsel. To my knowledge, none of those cases has proceeded to conclusion, so there have been no convictions to date that I'm aware of.

K. Corrigan: Actually, I have three questions. My understanding is that you said that there were three vacancies that have been filled by civilians in the last year. That means that three people quit the office out of 20. Is that correct? Was it seen as a transitional time?

J. Deitch: There have actually been a total of six vacancies out of the original investigative team of 32, I believe. That includes the four teams plus the forensic and traffic reconstruction experts. Plus there are some other investigative roles. For example, there's an affected-persons investigator who actually deals with the affected person or the family of an affected person — the person who has received the incident or has been the recipient of whatever has occurred.

In any event, there were vacancies that occurred during that time period. People move along. People come to the conclusion, perhaps, that this isn't what they really anticipated. What the independent investigations office has done in the course of that is that they've actually made the determination that for all of those roles they will attempt to seek civilian investigators where they're properly qualified to do the work.

K. Corrigan: The 46 percent civilian and 54 percent former police officers that we're at, at this point, or by September, I guess — that's simply for the investigative staff? And then do you know what the breakdown is for the other staff? You're talking, then, about the reconstruction. Is that the kind of thing you're talking about? Reconstruction experts and so on are apart from that?

J. Deitch: The other staff would be largely administrative staff and support staff, legal staff — all of those non-investigative roles. But it doesn't include…. The investigators include those who do forensic analysis, traffic reconstruction.

J. Chalke: There are a number, for example, of evidence clerks. One needs to take careful custody and ensure control over evidence from the time it's received by the IIO until the conclusion of any subsequent criminal proceedings. There are a number of staff who do that sort of work.

S. Hamilton: What I'd like to talk about just briefly is on the sixth page of your handout here, of your PowerPoint
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presentation — the bottom. There was quite a ramp-up between 2012 and 2013 in the number of serious-harm investigations.

I'm curious what precipitated that. Was that actually a change in the criteria as to how you evaluate them or choose what constitutes? Or could it potentially be a better understanding of the public that the office exists and maybe they have some recourse? Maybe you'd like to explain that.

J. Chalke: I guess the first answer is that the prior fiscal year represents a partial fiscal year.

J. Chalke: The office came into existence on September 10. That doesn't account for 100 percent of the change that you note, but it does account for some portion thereof.

I'm pretty confident, given the nature of the willingness of police to report…. There's a very high recognition by police services in British Columbia of the importance of reporting to the IIO, and the IIO receives many reports that don't meet the threshold for the IIO. Frankly, it appears that if there's any sort of question about reporting, it's overreporting by police services.

That's the balance that I think everybody wants to see occur so that the IIO can then make the determination as to whether or not the matter reaches the threshold that involves an IIO investigation.

S. Fraser: Have you received concerns or complaints about the IIO — if there are civilian concerns about how the investigations are done or if there are people concerned with them not being effective? Or are there any concerns of bias or anything like that? Is that something that would come across your desks at Justice?

J. Chalke: It could, potentially, I suppose. It's not something in terms of something I'm aware of. There have been public concerns expressed about at least one investigation that the IIO carried out that are in the public domain.

J. Chalke: There is the opportunity under the Police Act…. The chief civilian director may appoint a civilian monitor. They can actually appoint a monitor to watch over their investigation, if I can describe it that way. That's an opportunity that does exist under the act.

I don't believe that that has occurred to this point yet, but that's certainly a remedy if there was concern for whatever reason about an IIO investigation.

J. Deitch: If I could just augment, there is also a complaints process for the IIO with respect to both conduct investigations as well as the potential — if there was ever an allegation of any criminal wrongdoing by anyone at the IIO. So there is a fully developed process with respect to both those processes.

Certainly, there have been no allegations of any criminal conduct. I'm certain of that. In terms of internal investigations around conduct and more labour-relations aspects, I wouldn't specifically have knowledge about that. But that's certainly something that you could follow up with the chief civilian director.

S. Chandra Herbert (Deputy Chair): A question I had was related to the civilians that do the investigations. I understand that one of the concerns, and something you mentioned as well, was that accreditation can be a challenge. Where are we finding these civilian investigators? What kind of training are they getting? If we are going to get to full civilian investigations, then I think that's something we need to pay attention to. I've been told that that's a challenge. I'm just curious how that works now.

J. Chalke: It absolutely is a challenge. You're quite correct. I think there's a recognition that at least some of the aspects of the development of civilian staff will occur at the IIO. In addition, all staff investigators who did not have an incoming police background attended a course for three months at the Justice Institute before the IIO came into force. It covered a whole range of issues related to investigatory competence.

In terms of their background, perhaps we can ask the chief civilian director, when he appears, to kind of give you a bit of a rundown. Basically, they come from a variety of investigatory backgrounds — places like ICBC, coroner's office, Ministry of Children and Family Development, as well as some entirely non-investigatory backgrounds like journalistic backgrounds, etc.

S. Chandra Herbert (Deputy Chair): If I could just follow up. This may end up having to go to the civilian director himself. It mentioned in the act that they cannot have been a police officer within B.C. for five years. I notice that's within B.C. Do we have any officers currently, or former officers, I guess, from outside of B.C. that, say, were officers a year ago?

It just seems it's a funny stipulation to me that we've said five years for B.C. But maybe you could be just across the border in Alberta, and you could have been an officer a year ago. I'm just curious.

J. Chalke: That is the case, and 54 percent of the investigators have policing backgrounds. That background
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could well be, and in the vast majority of cases is, from outside British Columbia and can be recent, or it could be longer ago.

S. Chandra Herbert (Deputy Chair): Does the ministry itself have timelines or goals for when we transition to full civilian oversight? Or is it sometime in the distant future? What kind of guidance is the ministry providing in this understanding that the IIO is independent?

J. Chalke: Well, I think it's early days yet. We've only had, as we indicated, one full fiscal year and less than two years in total now that the IIO has been in existence. The number one goal is to conduct a professional, competent investigation into some of the most serious offences that exist in the Criminal Code. I think everybody involved recognizes that that's the number one goal.

Having said that, there is a serious commitment to those investigations being conducted by a civilian organization. It's noteworthy that the leader is a civilian. It's noteworthy that they've hired their first team director that's a civilian. It's noteworthy that almost half of their investigators are civilian.

But achieving that goal or aspiration which is set out in the act about becoming completely civilian is going to take some time. I think everybody recognizes that, and we're all learning as this process moves along.

It's heartening to see the percentage increase. As long as that's happening, that's something which indicates things are moving in the right direction. There isn't a set period of time, simply because I think all of that is secondary to the number one goal of ensuring that investigations are done to the highest standard.

S. Fraser: Yeah, just one. I'm curious. We've had some turnover with the investigators, as you mentioned to Kathy earlier. Over half of the investigators come from a police background. What's the compensation? Do we know? Is it comparable to being a police investigator, being on the IIO? Is it a five-year contract? How does that worked out for the investigators themselves?

J. Chalke: They're hired as public servants, and they're excluded from union membership. They're not eligible for overtime, which does make them somewhat different than police officers serving in a police service. For that reason, there is some increase in their basic compensation to address the fact that they have to work at midnight and two in the morning when things occur and frequently are asked to work overtime that would otherwise be uncompensated.

I don't have the actual classification, but we can provide the public service classification for you, and we'll undertake to do that.

S. Chandra Herbert (Deputy Chair): I'm just curious. It's been a year and a half, and obviously a lot of work went into the preparation of the IIO — reviewing other provinces and how they do this as well. I'm curious on two points. I understand Justice Braidwood make the recommendations around serious harm. I know some other jurisdictions include sexual assault as something that they investigate.

I know there's some debate, potentially, around: does serious harm involve mental disturbance or psychological harm which could occur out of an incident? You might be able to help me understand how we really arrived where we're at now. Does the serious harm include mental distress of some kind?

J. Chalke: In terms of the latter part of your question first, serious harm is a defined term in the Police Act, which I think I read out before. It really describes a physical manifestation of an injury, a serious disfigurement, "substantial loss or impairment of mobility of the body as a whole or the function of any limb or organ." It has a very physical description in terms of serious harm.

In terms of the determination as to why the Police Act is written the way it is, I think there was recognition that the central function, at least initially, for the independent investigation office would be those use-of-force incidents that are most at scrutiny in terms of conduct of police or other conduct by the police that results in death or serious harm.

It really is, I think, a view that these are the most central and key questions. That's not to say that there aren't other potentials for the future, but at this point in time, that was felt to be the place at which the IIO should commence its mandate.

J. Tegart: I had a very similar question to Spencer as to where the civilian investigators would come from and what walk of life they would come from. I'm most curious, also, to ask the question around public confidence. Are we measuring public confidence in the office, and is that part of the annual reporting?

J. Chalke: One of the things that is specified in the letter of expectations between the Deputy Attorney General and the chief civilian director is to challenge the chief civilian director to develop public performance measure indicators. That's something that is underway at the IIO.
[ Page 19 ]

I can tell you that public confidence is a key deliverable for the Ministry of Justice. The IIO is part of the Ministry of Justice. Therefore, that whole question of public confidence is something that's pretty central.

The IIO here in B.C. includes investigations of off-duty police officers. If I recall, in your description earlier of the other similar agencies around the country, not all of them include investigations with off-duty police officers. What was the rationale for that inclusion, considering there are other existing investigative organizations that do not include off-duty officers?

J. Chalke: With respect to these serious offences in cases that involve death or serious harm, the concern is ensuring that there's public confidence that the investigation is carried out in a manner that is not biased and, therefore, not connected with the police.

S. Chandra Herbert (Deputy Chair): Given that you've done a review of what other provinces and jurisdictions have in terms of civilian investigations, I'm curious. Obviously, every province is different. We could look at it as a great victory that only three of the issues have proceeded to charges, or we could see it as a problem. It really depends on your view of the policing system, I suppose.

Is this consistent with other jurisdictions — the low level of proceeding with charges? Is there no way to make an apples-and-oranges comparison like this? I'm just curious, given that some have looked at the budget and said: "Well, that's an awfully low number of charges." Others have looked at it and said: "Well, that's an awfully low number of charges because we've got great police services in the province." Certainly, I'm hopeful that that is the case, but it's just a question that I think needs to be asked.

J. Chalke: I guess the first thing I would say is that a measure of success or failure of the office is not the number of charges; it's the process. The entire purpose of establishing the IIO is to ensure that an impartial and seen-to-be-impartial investigation is carried out when these very serious incidents do occur.

It's no measure of success or failure that a particular number of charges are laid or are not laid. In fact, the jurisdiction of the IIO ends at the time that a report to Crown counsel is made. It's up to Crown counsel to determine whether or not a charge is laid, at the end of the day.

It is rare in Canada for criminal charges to be laid against police officers in respect of conduct. It remains rare even in jurisdictions that have civilian investigation organizations, to the best of my knowledge. But we can undertake to provide you with the numbers that arise from those other jurisdictions. It does occur, and in jurisdictions with big populations — Ontario, for example — obviously, it's likely to occur more often.

S. Chandra Herbert (Deputy Chair): Just a follow-up. Certainly, the officers that I know and have worked with…. I feel pretty confident in our police.

I'm just curious. Given that the Crown counsel makes the final determinations….

There's been a lot of talk in the news recently about the higher charge standard in British Columbia for murder and questions about whether or not B.C.'s standard is too high — that you must be able to proceed with a conviction or have a high likelihood of conviction.

From the Crown's perspective, if we had a different standard…. And I understand. I am not a lawyer, so this may be an impossible question or may cost a gazillion dollars in lawyers' consulting fees. Were any potential cases forwarded to Crown for potential charges that were rejected because of the higher standard of likelihood of success of a case, to your knowledge?

J. Chalke: They are two completely different standards. Yes, there are cases that are referred by the chief civilian director to Crown in a report to Crown counsel in a manner not dissimilar to that which police do. The difference is that, actually, the standard for the IIO to report a matter to Crown is in fact lower than the ordinary standard that the police apply when making a report to Crown counsel.

The IIO is to report a matter to Crown counsel when the chief civilian director believes a police officer may have committed an offence, so a quite generous or low standard, if I can put it that way, in terms of a report to Crown counsel. That has happened in the slide that Mr. Deitch showed you.

Last year in 2013-'14 there were 13 reports to Crown counsel. In fact, since the office opened, there have been a total of 19 reports to Crown counsel, and as we've indicated, there have been three matters in which the criminal justice branch has authorized the laying of a charge.

K. Corrigan: I wanted to ask about a concern that has been expressed by the B.C. Police Association. They've expressed a few about the operations of the office. One of them is the suggestion that there is duplication between the Office of the Police Complaint Commissioner — that when something falls under the definition of when it should be investigated by the independent investigations office, it also can trigger an external report by the
[ Page 20 ]
Office of the Police Complaint Commissioner, if it's a reportable injury. The suggestion is that we have duplication that is unnecessary.

I'm wondering if there has been any thought within the ministry to whether or not there's an agreement that there is duplication or an unnecessary duplication. Then also, whether or not there's anything contemplated in order to deal with that.

J. Chalke: I would say that the ministry did undertake an analysis to consider whether the independent investigations office and the Office of the Police Complaint Commissioner should be amalgamated. Frankly, we concluded that the two organizations have very different jurisdiction. They have very different mandates, functions and human resource needs, which are not easily amenable to amalgamation or that would yield any material benefits. Amalgamating those two organizations would require quite substantial policy and legal considerations given the very different functions and setup of the two organizations.

The organizations have a reporting relationship which is different to different branches of government. The IIO is established within the Ministry of Justice, and the chief civilian director is accountable to the Attorney General, namely, to the executive branch of government, while the Police Complaint Commissioner is an officer of this Legislature and is accountable to the Legislative Assembly — that is, to the legislative branch of government.

The two organizations also have different mandates and functions. The IIO is responsible for conducting a criminal investigation of incidents of death and serious harm involving both RCMP and municipal police services, whereas the Police Complaint Commissioner is responsible for monitoring and reviewing administrative investigations of misconduct involving municipal police only. Misconduct investigations are undertaken by police agencies, and the OPCC provides an oversight role, primarily, as opposed to an investigatory role.

While it's true that they're both organizations that relate to civilian oversight of policing, it has been our conclusion, at least at this time, that the two organizations really represent different aspects of civilian oversight and are best served by different organizations.

J. Deitch: Might just want to add, as to your specific question about overlap or redundancy between…. There actually is agreement between both the independent investigations office and the Office of the Police Complaint Commissioner and the Commission for Public Complaints Against the RCMP that there's a sharing of all information related to critical incident investigations from the IIO to those organizations so that that reduces any overlap in investigation.

Now, having said that, those organizations are still going to undertake some form of investigation following from that. That's obviously within their mandate. They have different questions because of their different mandate, but the actual results of the IIO investigation are shared with both so that there is, to the extent possible, a reduction in any redundancy between the two investigations.

K. Corrigan: Another question. The RCMP are covered by the office. I'm wondering operationally — and maybe this is something that would be best addressed to Mr. Rosenthal — from the ministry perspective, has that worked out well? Are there any issues with the office applying to the RCMP as well?

J. Chalke: Yeah. My understanding is that the office has received excellent cooperation from the RCMP.

K. Corrigan: Are we going to have a further opportunity to have ministry before us, or is that up to the committee in the future?

M. Morris (Chair): That will be up to the committee. Mr. Chalke has already stated that if we do have any further questions that they'd be more available to meet with us down the road.

M. Morris (Chair): Well, Mr. Chalke, Mr. Deitch, Ms. Nadziejko and Ms. Mason, thank you very much for your time here this morning in helping us out on this as we move forward. We will be giving you a shout in the future should any further questions come to the committee here that we need your answers for.

M. Morris (Chair): Committee members, we've got some further business to discuss here. We'll give these folks an opportunity to leave.

M. Morris (Chair): Just in answer to your question, Kathy, on possible timelines on the business plan that we had submitted earlier, we do have an opportunity on there to meet with them. But we do have a couple of dates
[ Page 21 ]
that are still up in the air for stakeholder meetings this fall, in September, October. Do we have August here? I'm hoping that we can probably go the first couple weeks of August. No, I'm kidding here.

We have a possible meeting September 10 and 11, public hearings with stakeholders and experts in Vancouver, if everybody could have a look at your calendars. We perhaps don't need to make any conclusions at this time, but if you can get back to Spencer on your side, and you guys can get back to us and share the dates that you might be available.

It's pretty tough to nail it down, but this is far enough in the future, I think, that we don't have anything really set from a legislative perspective. If we can go with these dates, that would be great.

M. Morris (Chair): We have September 10 and 11 for public hearings in Vancouver. They're with stakeholders. We also have meetings tentatively set for October 8 and October 22. October 8 is a meeting with the ministry and the chief civilian director to consider the results of our public meetings. The consultations that we have on the 22nd would be the review of the results of the public meetings and to discuss draft recommendations and whatnot within the committee here.

D. Plecas: Are the dates…? The 10th and 11th of September — are they nailed down?

M. Morris (Chair): Strictly, they're just out there as tentative dates right now.

D. Plecas: I wonder if we could nail those down fairly quickly. Thus far that's been a…. I already have one date which overlaps with my other committee, the children's committee.

S. Chandra Herbert (Deputy Chair): Maybe, Mr. Chair, if both yourself and myself can commit to getting an answer back from our members — let's say by the end of this week — to these dates, then we can be planned well in advance.

M. Morris (Chair): Okay, and I'm sure we can get Scott Hamilton on board as well.

Susan, anything that we've missed here or anything that we should be discussing?

S. Sourial (Committee Clerk): No, I think once we've met with the Chair and Deputy Chair, we'll go over the stakeholder list and distribute it to all the committee members. The thought was to have the stakeholders appear on the 10th and the 11th, once we get that list approved.

M. Morris (Chair): I've had a few messages and e-mails from the public with respect to holding a hearing in Prince George. I've referred them to Susan. I've passed them down over to Susan. I haven't responded to them myself.

It's my feeling that some of these various groups may be more interested in rehearing the results of a file that has already been concluded, so we have to take some care in determining how and where we're going to do these to make sure that they are accessible to the concerned members of the public and whatnot. We'll give that some thought, and Spencer and I can give that some consideration.

D. Plecas: Are we going to have some time to deliberate amongst ourselves? I say that, being reminded of Kathy's question and Spencer's question. Like, we get an answer, but I'm not sure we would want to go with that.

S. Chandra Herbert (Deputy Chair): I was just going to say that the schedule does allow us to have both Justice and the IIO back. This was kind of the idea: that we would have an intro. We'll hear from people. We'll get a chance to have a fuller response from both the ministry and the IIO, based on what we've been hearing — another chance to grill them again — but in the end, it's all of our committee.

I think if folks are able to look at the possible timelines and just give us a sense, we're happy to accommodate. We're trying to give a chance for…. They can have their side of the story heard. We can hear other sides of the story. It'll give us enough time to come back if we're not getting what we need to be able to have a full report.

It's a bit of a quicker timeline in terms of the response back and forth, given the summer, but I feel confident that we'll get that opportunity, as long as we keep our eyes focused on it and give those that we need to demand answers from, or request answers from, adequate time to appear before us.

S. Sourial (Committee Clerk): There is an existing website. We're in the process of revamping the website, and the revamped website for all the committees is not yet up.

M. Morris (Chair): Okay, but we will have opportunities for the public to comment on that and gather some more information for that. So without….

S. Chandra Herbert (Deputy Chair): Just one more. We've got right now in our timeline: consultation process opens in June; key stakeholders invited to participate. I guess the Chair and I will be meeting shortly to go over that list, based on feedback from all of you. Is that correct?

S. Chandra Herbert (Deputy Chair): As well, I know we've discussed a survey of residents or giving people a chance to have their voices heard in that way. Is the idea, as well, to have that ready for June for a launch, then?

S. Sourial (Committee Clerk): Spencer, there are two types of survey. One was a survey that we would ask the IIO to distribute so that the committee wouldn't see names. It would be an anonymous survey. That doesn't really have…. We haven't determined a timeline for that.

The consultation process opens would be the committee issuing a call for written submissions, which would last until the end of August.

K. Corrigan: In terms of the stakeholders that are involved, I'm just trying to get an idea on that. I know that when we were doing the conducted energy weapons review a couple of years ago there was sort of a ready-made list of stakeholders, because there were people who had given expert testimony at the Braidwood Inquiry.

I'm wondering whether the two of you or the three of you have thought about who potential stakeholders would be. The reason I raise it is I'm not sure who those stakeholders would be.

The other thing we were really surprised with that committee…. It also included — it was a two-part committee — an audit of the police complaints process. We were really surprised at how little interest there actually was. I don't think there was anything the matter with the process, particularly, but I think we have to be quite proactive in terms of getting information out there and making sure that those that might want to comment get an opportunity or are aware of it.

M. Morris (Chair): You're right. We want to be as comprehensive as possible with this. If anybody on the committee has any suggestions for stakeholders that we should be reaching out to, by all means let us know and we'll make sure that they're included on the report.

I think for now we can conclude this meeting, and we'll carry on with our discussions later on.

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Chair:	* Mike Morris (Prince George–Mackenzie BC Liberal)
Deputy Chair:	* Spencer Chandra Herbert (Vancouver–West End NDP)
Members:	Dr. Doug Bing (Maple Ridge–Pitt Meadows BC Liberal)
	* Kathy Corrigan (Burnaby–Deer Lake NDP)
	* Scott Fraser (Alberni–Pacific Rim NDP)
	* Scott Hamilton (Delta North BC Liberal)
	* Dr. Darryl Plecas (Abbotsford South BC Liberal)
	* Jackie Tegart (Fraser-Nicola BC Liberal)
	* denotes member present
Clerk:	Susan Sourial
Committee Staff:	Ron Wall (Committee Researcher)

Witnesses:	Jay Chalke (Ministry of Justice)
	Jamie Deitch (Ministry of Justice)
	Sarah Mason (Ministry of Justice)
	Anita Nadziejko (Ministry of Justice)

REPORT OF PROCEEDINGS (Hansard)

SPECIAL COMMITTEE TO REVIEW THE INDEPENDENT INVESTIGATIONS OFFICE

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO
REVIEW THE INDEPENDENT INVESTIGATIONS OFFICE