Review the Independent Investigations Office — Issue No. 8

Present: Mike Morris, MLA (Chair); Spencer Chandra Herbert, MLA (Deputy Chair); Dr. Doug Bing, MLA; Kathy Corrigan, MLA; Wm. 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

• Paula Bowering, Senior Policy Analyst, Criminal Justice and Legal Access Policy Division

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

5. Resolved, that the Committee continue in-camera. (Wm. Scott Hamilton, MLA)

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	131
J. Chalke
J. Deitch
R. Rosenthal
C. Sadlemyer
J. Larkin

M. Morris (Chair): Good morning, everybody. We’ll get the committee meeting, the Special Committee to Review the Independent Investigations Office, underway here this morning.

Jamie, good to see you here. Jay, good to see you here and your staff as well. Thank you very much.

Maybe I’ll start again — just to refresh everybody’s memory — with the committee members themselves. I’ll start over on my left here, with the co-Chair of the committee. Introduce yourself.

M. Morris (Chair): And we’ve got Ron Wall with our research staff and Susan Sourial with the Deputy Clerk’s office. Thank you very much.

I’ll just turn the floor over to you, gentlemen, and we can commence from there.

J. Chalke: Thank you. Good morning, Mr. Chair, Deputy Chair, committee members and Madam Clerk.

First of all, thank you to the committee for accommodating us and allowing us to go first. It’s a busy time of year.

My name is Jay Chalke. I’m the assistant deputy minister of the justice services branch of the Ministry of Justice. As you may recall, I presented the original ministry briefing to you on May 26 of this year at the beginning of your review of the independent investigations office. So thank you very much for the opportunity to comment on submissions made to you and to provide you with a supplemental briefing.

My staff are responsible for liaising with IIO staff in support of my branch’s responsibility with respect to part 7.1 of the Police Act, which establishes the IIO. We have policy responsibility for that part of the act. Joining me today are Jamie Deitch, the executive director of the criminal justice and legal access policy division, and two staff of that branch: Paula Bowering, senior policy analyst, and Sarah Mason, research officer.

On the screen above you is an outline of the presentation that I’ll be making today. As you know, subsection 38.13(2) of the Police Act provides that this committee review the chief civilian director’s progress towards a goal of having an office that is staffed entirely with employees and investigators who have never served as officers or members of a police or law enforcement agency as well as reviewing the administration and general operations of the IIO.

I will be commenting on these two matters, and then Mr. Deitch will comment on some issues that were raised in the submissions and respond to some additional issues that the committee has requested that the ministry address.

Regarding civilianization of the IIO, we’ll be commenting on the three interrelated aspects of staff complement, expertise and time frame.

Regarding the administration and general operations of the IIO, we’ll be commenting on ministry support and complaints process.

Regarding other issues raised in submissions to the committee, we’ll be commenting on scope of mandate and the question of amalgamation of the IIO with the office of the Police Complaint Commissioner.

Finally, we’ll be responding to items that the committee requested that the ministry address in this supplemental submission that did not fit into the other areas of the presentation, including investigations and the distinction between critical incident and criminal investigations as well as the treatment of police notes.

Turning to civilianization. In establishing the IIO, the government was and remains committed to establishing an independent, credible and competent civilian police oversight body. As I said, government remains committed to this goal.

As Justice Braidwood said in his inquiry report into the death of Robert Dziekanski:

“My only concern centres around timing. How quickly can British Columbia realistically develop an independent investigatory body that is, through and through, civilian? This is a profoundly important reform that must be done right, and if that takes some time, so be it. At the end of the day, this investigative body should, in my view, be entirely civilian. By that I mean that none of its management, supervisory staff or investigators should have served anywhere in Canada as a police officer. I suggest that five years be the time frame within which that goal is achieved.”

In recommending the establishment of an independent investigations office, Justice Braidwood recom-
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mended that the oversight body should be entirely civilian, and as I quoted, that meant that “none of its management, supervisory staff or investigators should have served anywhere in Canada as a police officer.” He recognized that this would take time, and he qualified his suggestion of five years with the statement: “This is a profoundly important reform that must be done right, and if that takes some time, so be it.”

Braidwood made a number of recommendations regarding the establishment of a civilian body, including that it be led by a director who is not a current or former police officer and that no member as an investigator of the IIO shall have served anywhere in Canada as a police officer. But during the first five years, the IIO could include former police officers.

Then in order to implement these recommendations, the government proposed legislation, and the Legislature passed amendments to the Police Act providing that the CCD has to be a civilian and that investigators cannot be current police officers or have served in British Columbia within the last five years and that this committee be established to conduct a review of progress by January 2015.

Turning to staff complement. I’m going to defer to the chief civilian director, who is going to be providing you with some detailed numbers regarding the background of his staff later this morning. At a high level, I want to point out that the chief civilian director is himself a civilian, never having served as a police officer, and that none of the current investigators are police officers who have served in British Columbia in the past five years.

Regarding the investigative staff in particular, I want to make the following points. When the office first opened, approximately one-third of its investigative staff came from backgrounds other than policing. The percentage is now closer to 50-50. You’ll be hearing more, as I said, from the chief civilian director.

One of the investigative teams is now led by a civilian director, which is a further significant step towards civilianization. As well this year, nine new civilian investigators have been hired to replace departing staff, which significantly increased the proportion of civilian-background staff.

The IIO continues to work on staff recruitment and retention, training and succession to build a contingent of civilian investigators and to improve progress towards becoming a completely civilian body. As I said, Mr. Rosenthal will be addressing this issue in some detail.

Turning to the question of expertise, I already noted that the IIO continues to work on staff recruitment and retention to build a contingent of civilian investigators and to improve its progress towards becoming a completely civilian body. That leads me to this next issue, which is to consider this question of expertise. To frame my comments, I want to return to another point that Justice Braidwood made regarding building a civilian oversight body. This is also from the same page of his report:

“Many in the policing community contend that only experienced police officers have the special training and skills required to competently conduct these sensitive criminal investigations. Others argue that these investigative skills can be taught or can be found in other investigative bodies, such as the military, government enforcement agencies or self-governing professions.”

The purpose of establishing the IIO as a civilian oversight body is to avoid bias or the perception of bias, in order to ensure that the investigation of police incidents causing death or serious harm is credible and worthy of the public’s trust. But simply being staffed by civilians is not sufficient. The IIO must have the expertise to conduct competent investigations in order for it to be credible and for it to earn the public’s trust.

Questions of whether someone who has never served as a police officer or who has been out of service for a period of time would have the skills and experience necessary to conduct criminal investigations creates a dynamic tension between expertise and the question of bias or perception of bias. The IIO conducts major crime investigations, and it’s necessary that its investigators have the skills and experience required to undertake this type of work.

IIO investigators who do not have policing backgrounds but who currently work at the IIO have experience in other investigative organizations, such as the B.C. Coroners Service, the Ministry of Children and Family Development and the Insurance Corporation of B.C.

Civilian investigators participate in an intensive formal training program with the Justice Institute of British Columbia, which was developed to recognize the unique backgrounds of incoming civilian investigators. Course material includes criminal and administrative investigations, patrol training tactics, legal studies and issues around legal defences regarding use of force. They also receive in-house orientation, coaching and mentoring as well as field training.

At this point I want to address a question that the committee has asked the ministry to respond to regarding training. We were specifically asked whether the Justice Institute provides enough training or if there’s a need for a longer training program, potentially, in partnership with other civilian agencies, like Ontario’s or other provinces’.

I’m going to say that the chief civilian director is going to provide a more detailed response to that question, but at a high level I understand — and we understand — that the IIO already leverages relationships with other civilian agencies. Incoming investigators who have been selected for employment with the IIO already have incoming expertise.

The IIO has recently appointed a new training coordinator, and over the past few months the IIO has developed an in-house program that will assist in orienting new staff into the office. Finally, the new in-house training
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program will enhance the Justice Institute training that’s already in place.

The ministry recognizes that the ultimate ideal articulated by Justice Braidwood is for all investigators to have never served anywhere in Canada as a police officer. The government is committed to implementing a civilian organization with the expertise to conduct criminal investigations by taking the time necessary for civilians to be well trained and to build up sufficient expertise. The time needed to develop the necessary expertise is the main reason it will take time to make the IIO into a completely civilian body.

Lastly, I just want to touch on the role of the director of police services, who is a senior official in the Ministry of Justice. The director of police services has the authority to establish training standards for IIO investigators, pursuant to 40(1)(a.1) of the Police Act, but this has not been used to date as it has not yet been seen to be necessary to do so.

On a related note, the director of police services has recently invited the IIO to join a steering committee on major crime policing standards, which includes senior police leadership and the federal and provincial prosecution services. The purpose is to explore establishing such standards. Although such standards, which are currently under development, are potentially quite broad, they could well include a training component.

The IIO is a new organization, and during these early years of operation we anticipated that progress towards becoming a civilian organization would be incremental. We know that it would take some time before the IIO would become a completely civilian organization, and we recognize that this goal will likely take more than five years to fully achieve.

This committee heard, I believe, suggestions from various witnesses that a time frame of five to ten years was suggested by various individuals before you. While full civilianization remains the ultimate goal, there’s no timeline fixed. The conduct of investigations of this nature requires extensive experience and training which, other than among the IIO and its counterparts in other jurisdictions, are not directly carried out by any other existing organizations.

The government’s primary objective is that police incidents resulting in death and serious injuries are investigated by an IIO that is competent and professional. To the extent that this can be achieved by a complement of investigators who are civilians, then this is, for the reasons articulated by Justice Braidwood, the preferred model. However, artificial and rigid timelines ought not to be imposed. Competent, professional investigations have to remain the primary goal.

Also, the ministry recognizes that, given the expertise required for the dynamic, unique and specialized nature of this work and the inherent challenge of a mobile workforce, even if fully achieved at a point in time, complete civilianization may not be a permanent outcome. Former police officers who meet the statutory waiting period may still be required at particular future points in time, especially if the mandate of the office should change, for example with the addition of new offenses or types of incidents to be investigated.

Civilianization remains important to the ministry, and we will continue to monitor progress the IIO makes in this regard. This includes participation in the hiring processes and providing ongoing organizational development support, as well as setting out requirements for progress in the CCD’s letter of expectations from the Deputy Attorney General. The IIO has made progress to date, and the CCD will describe the progress in his comments later today.

I’m now going to leave the topic of civilianization and turn to administration and general operations. At this point I’d like to comment on two items that the committee asked the ministry to respond to. One was our thoughts on ensuring a review of the IIO every five years similar to that which is conducted with respect to the Police Complaint Commissioner, and the other is whether the IIO needs an advisory body similar to the police complaint commission.

Regarding the first question, the ministry maintains an active and ongoing dialogue with the CCD and his senior staff, all the while in a manner that respects the required independence arising from the role of the IIO. More formally, and as we mentioned in May, the ministry intends to conduct periodic reviews of the organization’s performance.

Regarding the second questions, we support, at least at this point in time, a non-statutory approach to the obtaining of external advice and input in order to allow for flexibility and ongoing adjustment in the IIO’s early years. Indeed, that is the approach currently taken by the IIO with its new external advisory board that the IIO has recently established and which the CCD will describe for you later.

There are different models for obtaining external advice, and we will be monitoring the progress of this issue and continuing a dialogue with the CCD on options he might consider and assistance the ministry can provide.

Turning to the question of a complaints process, at the ministry’s briefing to you on May 26 the committee asked if the ministry had received any complaints about the IIO from members of the public, and we provided information to the committee about the IIO’s public complaints policy.

At a subsequent hearing an individual who presented to the committee raised questions about the existence of a complaints policy at the IIO. We have confirmed that the IIO policy we were referred to came into effect on July 2, 2013, and we can provide you with a copy of this policy. It
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provides how the public have access to a process to make complaints about the IIO, and it notes that the process for a criminal complaint against an IIO investigator would be referred to the OPCC for investigation. The chief civilian director would confer with the Public Service Agency regarding the handling of such complaints.

A non-criminal complaint is subject to the discretion of the CCD and may lead to an OPCC investigation, an internal conduct investigation, an informal resolution or dismissal, if it’s found to be without merit.

The process for a complaint against a non-investigative employee, such as individuals within the bargaining unit, would be dealt with according to the policy and, where applicable, the collective agreement and Public Service Act policies.

In addition to the internal IIO policy, in terms of potential complaints about the CCD, as opposed to IIO staff, any complaints about the CCD should go to the Deputy Attorney General or, depending on the nature of the complaint, to the Public Service Agency.

Mr. Deitch is now going to address some specific issues that have arisen during your hearings.

J. Deitch: The two issues that were raised in a number of submissions to the committee were with respect to the scope of the mandate of the IIO — in particular, related to the inclusion of sexual offences; this was one of the issues which the committee has asked the ministry to specifically comment on — and the amalgamation of the IIO and the Office of the Police Complaint Commissioner.

I’m going to start off by dealing with the scope of mandate. There have been calls for the IIO’s mandate to be expanded, particularly to include sexual assault. The IIO’s counterpart in Ontario, the Special Investigations Unit — SIU as it’s called there — includes sexual assault but only where it applies to on-duty conduct by an officer.

The government recognizes that there’s certainly an argument to include sexual assault when that is feasible. Practically speaking, however, expanding the scope of the IIO’s mandate will require specialized expertise, specialized resources, and depending on the extent of the expansion, that specialization could be quite broad. Sexual assaults will also require establishing credible and effective intake mechanisms from service agencies and individuals.

Mr. Chalke has already mentioned that the ministry intends to conduct future regular reviews of the IIO. In the course of those reviews, we will certainly consider expanding the mandate when the IIO is ready — and particularly consider it in the area of sexual assault. The ministry plans to conduct a further review of the IIO in 2016, prior to the end of the current chief civilian director’s term, and could at that time consider a change in the mandate if that was deemed desirable.

Until the mandate is expanded by regulation, it is still possible, in extraordinary cases, for the IIO to obtain jurisdiction for a matter that would otherwise be outside its current mandate.

The Police Act allows the director of police services to order the IIO to undertake a special investigation of an incident that falls outside of the IIO’s mandate where it would be in the public interest to do so. These would be rare cases where the injuries sustained by an individual and apparently caused by a police officer would not meet the definition of serious harm but where the public interest would be served by a referral to the independent investigations office.

When the legislation to establish the IIO was introduced, it was suggested that the office and the Office of the Police Complaint Commissioner should be combined into a single organization. Earlier this year ministry staff, from our branch and elsewhere, undertook an analysis to consider whether the two offices should be amalgamated. We concluded that the two organizations have very different jurisdiction, very different mandates, very different functions and very different human resource needs and would not be easily amenable to amalgamation. Additionally, there was little fiscal benefit to be achieved through the efficiencies of amalgamation.

If I could then turn to a third issue where the committee asked us to respond. That was with respect to affected-persons support. The question that was asked was our thoughts on victim services workers for families of someone involved in a police-involved death or serious injury — thoughts on them being independent of police, given expressed concerns about potential bias.

At the time of the implementation of the IIO, the ministry recognized that the IIO would need to have a position to support individuals and their families who were injured or had died. Since its inception the IIO has had a civilian staff member dedicated to providing support services, that role known as the manager of services for affected people. This staff member has linkages to all victim services agencies as well as other community-based support agencies.

This can include linkage, for example, with the crime victim assistance program, which is operated through the ministry. But not all of these supports are formal linkages. For example, the IIO is currently developing a project working with some of the Downtown Eastside service providers in Vancouver to build relationships to serve vulnerable people in that community.

Experience to date indicates that the majority of the IIO’s affected persons are, in one way or another, vulnerable persons. Therefore, the IIO is building contacts with various agencies and organizations to build upon that, including things like homeless shelters, soup kitchens, counselling services, the Public Guardian and Trustee, the Ministry of Social Development and Social Innovation, as well as mental health agencies.
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The IIO, through its affected-persons manager, also liaises with the family members of affected persons as well as the family members of those who are deceased. I will defer to the chief civilian director to provide any further details with respect to those specific services.

The final area that we wish to address as a result of questions from the committee relates to IIO investigations and the distinction between critical-incident and criminal investigations and the use of police notes.

I should note parenthetically that there was a question with respect to the police use of body-worn cameras. We referred that to the director of police services, who has provided a written response to the Chair — which is available, I assume, to all committee members. We don’t intend to comment further on that issue.

With respect to investigations, it’s important to note that under section 38.07 of the Police Act, the chief civilian director and all of the investigators in the independent investigations office have all the “powers, duties and immunities of a peace officer and constable at common law.” Accordingly, the investigations conducted by the office, which take place under either section 38.09 or section 38.10, dependent upon the referral source, are conducted similarly to police investigations.

The IIO is subject to the provisions of the Criminal Code in respect of investigations, as well as to the Charter of Rights and Freedoms. Judicial oversight, as required, would be provided. The constitutional requirements and the application of the common law would be applicable to all IIO investigations, as with any other police agency.

For example, IIO investigations could be subject to the same remedies that exist elsewhere, including the legal concept of abuse of process, tort claims for negligent investigation, as well as malicious prosecution and any relief that would be available pursuant to section 24 of the Charter of Rights and Freedoms.

Canadian jurisprudence setting out the duties with respect to investigations can be found in the Supreme Court of Canada decision in Hill v. Hamilton-Wentworth Regional Police, et al. If the research officer needs that information, I can certainly provide the citation if the committee would like to refer to that decision.

Within this framework the independent investigations office investigative approaches and techniques remain the exclusive jurisdiction of the chief civilian director and his investigators, including his chief of investigations.

As provided in section 38.04 and section 38.07 of the act, the chief civilian director is responsible for the operations and overseeing of investigations by the office and for the investigators who are under his “exclusive command and direction.”

If I could then turn to the issue of police notes. This is the final issue that the committee asks the ministry to address in our submissions. The note we got was: “Ensuring police notes are taken and provided to the CCD or IIO before lawyers get involved — is there legislative training required to ensure this takes place?”

As the committee is aware, the Police Act governs the independent investigations office. The IIO has developed, in cooperation with all police agencies in the province, a memorandum of understanding that guides the IIO’s relationship with those agencies. In particular, the MOU addresses the issue of police notes, and it ensures that officers’ constitutional rights are respected and protected.

In Ontario, after many years of difficult relationships between the policing community and the special investigations unit there, including various reports and court decisions, Ontario took a legislative approach. That is not the approach that has been taken by the IIO to date. They’ve not requested a legislative approach.

They’ve addressed this through an MOU, which provides a common understanding, in order to foster the relationship between the IIO and the police agencies and to ensure the cooperation of police officers. To date we are not aware of any issues related to police notes that have come up in investigations.

Certainly, while a legislative approach remains available — and we certainly could consider that — it is not an option actively being considered at this time. Were B.C. to legislate around police notes, there would be significant legal uncertainties and certainly some risk of adverse impact on the very cooperative relationship that has been developed by the IIO to date.

J. Chalke: Thank you. That completes our comments, but we’d be happy to take any questions the committee asks.

K. Corrigan: Thanks for your presentation. I wanted to ask, first of all, about the last issue that was raised, the issue of police notes. What exactly is the legislative approach that Ontario has taken, and have there been challenges? One of the last comments that you made was that is it possible that there will be challenges, and I would assume it’s Charter of Rights challenges. I guess that would be my first question.

J. Chalke: We can provide the committee with the regulation that exists in Ontario. The matter has been considered by the Supreme Court of Canada in a case called Wood v. Schaeffer. My recollection is that it was actually during the course of that litigation at some point that the regulation in Ontario came into force. So it didn’t exist before the incident that gave rise to the litigation occurred, but it was promulgated during the course of that litigation, so to that extent, it was considered by the Supreme Court of Canada in their judgment.
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K. Corrigan: And what does the regulation say in terms of the treatment of notes?

J. Chalke: I don’t want to speculate exactly, because my knowledge of the Ontario law isn’t perfect. Basically, it requires that officers complete a duty report relating to the incident, I believe by the end of their current shift in which it occurs.

K. Corrigan: On the same line of questions. Here, there is a memorandum of understanding. Could you give me more detail about what is in that memorandum of understanding, given that Mr. Deitch said that officers’ constitutional rights are protected? Can you give me more information?

J. Chalke: As a general comment, the MOU creates a distinction between witness officers and subject officers, and then, basically creates, a different process that attaches to each.

It deals with the issue of when a previously classified witness officer becomes a subject officer, and vice versa? Given that this is the IIO’s memorandum of understanding in terms of the details of exactly how that plays out, I think I’ll defer to the CCD, who you’ll be hearing from shortly. He can take you through how that happens in a dynamic situation in an ongoing investigation.

Basically, the purpose of the MOU is to ensure, with respect to subject officers, specifically, that their Charter rights are protected during the course of an investigation.

K. Corrigan: Thank you. I have other questions, but I’m sure there are others. So I’ll get back on the list later.

M. Morris (Chair): No, go ahead, Kathy. I haven’t had anybody flag me down yet.

K. Corrigan: Okay. I wanted to ask a general question about the responsibility and reporting relationships. One of the recommendations made by the official opposition — and I believe I was the critic at the time — is that the reporting should be to the Legislature as opposed to the Ministry of Justice.

I continue to have concerns that that is the reporting relationship that exists. I don’t imagine you’re going to have much to say about that, but I do want to get that on the record. And I’m wondering, given some of the materials we’ve received, which the CCD will talk about, about some of the concerns about the culture and so on at the independent investigations office, whether or not there are any thoughts about where ultimate reporting and responsibility and accountability should take place.

J. Chalke: As Mr. Deitch indicated, and as I think I’d mentioned in May, we have looked at the question with respect to amalgamation of the IIO and the police complaint commission. So in that context, if one were to have an amalgamated organization, clearly, one of the reporting options that could exist for an amalgamated organization would be as an officer of the Legislature, since that currently is the legal structure underlying the police complaint commission.

No independent or separate consideration has been given with respect to the IIO other than that. So I would say: in that context, yes, but not otherwise.

J. Deitch: If I could just add…. The current structure and reporting structure were also as recommended by Justice Braidwood in his report — that the office should be situated within what was then the Ministry of Attorney General.

K. Corrigan: Just on that, my recollection of the Braidwood report was that originally Justice Braidwood recommended that the reporting be to the Ombudsperson’s office. At least, that’s my recollection. I may be wrong, but that’s what I thought. Anyways, I’ll check that.

Thank you for your presentation. Mr. Deitch had mentioned in the scope of the mandate rare cases where serious harm, allegedly caused by the police, which occurs and does not fall into the mandate of the independent investigations office. I just wonder if you could give a couple examples of that.

J. Chalke: One possibility exists where the degree of injury may not reach the threshold for serious harm, yet the circumstances of the injury are such that they may suggest that an investigation by the IIO would be in the public interest. It’s quite a high bar.

I don’t want to comment on specific cases, but I would say that before the legislation establishing the IIO came into force, there were cases that occurred where there were what may be, in the long run, fairly minor injuries — thus, not meeting the threshold of serious harm.

But say the interaction with the police was with a child. Even though the injury may not constitute serious harm, the circumstances of that interaction between the police officer and the child may have been such that it demanded, in the public interest, an investigation by the IIO. That would be one example, without getting into specifics.

Since the IIO has come into force, I know there has been dialogue on occasion between the director of police services and the chief civilian director, particularly in the early days as everyone was trying to best understand
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what the injury threshold actually meant and recognizing that the scope of injuries isn’t necessarily immediately apparent. Therefore, in some cases discussions took place between the director of police services and the chief civilian director as to whether a referral was warranted or would be warranted until the degree of injury became more apparent.

Now I think there’s a better understanding of the injury threshold, and what it means has, over time, become less of an issue. But that remains an option in order to ensure that where an independent investigation is required but may not meet that injury threshold, it’s possible to do so.

J. Chalke: Under the Police Act, the primary responsibility for that would rest with the director of police services. The Police Act also provides that the Minister of Justice may make such a referral.

S. Chandra Herbert (Deputy Chair): Just following along Doug’s line of questions, the question of serious harm is obviously one that’s challenging for everybody. What kind of thought has been given within the Ministry of Justice towards situations where maybe post-traumatic stress disorder or something comes in, maybe not immediately?

Maybe it comes in a year later and makes it so that somebody can’t work any longer because it’s that bad. What do you do in situations like that, given that the investigation may have been complete? Maybe they’ve gone on their ways, but serious harm, in a sense, has been created, just not until a year later.

Could an investigation be done a year later by the IIO, when the scene is cleared and everything’s finished? How do you deal with situations like that?

J. Chalke: There are really two questions inside your question — or, I guess, two ways to answer. One is that in the event that serious harm, that threshold, were to be reached to the degree that the IIO can take over an investigation later. When it becomes apparent that an injury has reached that threshold, that’s possible. That has happened in cases to date.

However, I would point out that the definition of “serious harm” is very much about manifesting a physical injury. I don’t want to mislead you, given your example. It’s more likely not, than likely, that a manifestation of something like post-traumatic stress wouldn’t necessarily trigger the serious harm threshold.

Options to deal with that as we go forward and consider questions of mandate for the IIO include amending the definition of “serious harm” or dealing with the question as exercising the regulation-making power that Mr. Deitch referred to earlier, which is to basically include offences as being within the jurisdiction of the IIO and not simply on the basis of the degree of injury to the individual.

S. Chandra Herbert (Deputy Chair): That’s helpful. Thank you. I guess the challenge that I have is when we talk about physical manifestations of serious harm. Mental health is often manifested physically, where you can’t leave your home. You can’t get out of bed. Your brain, of course, is physical as much as your body. We still seem to like to separate our brain from our body and mental health from physical health, which I think is a mistake. So it’s encouraging to hear that potentially, you might be reviewing this down the road.

I really think that we cannot separate serious mental harm from physical harm. While you may be seriously disfigured by an incident, you could still go to work, whereas potentially the mental harm is so great you can never work again. I’ll just leave that there.

I did have one more question, not related to this section, but it’s just a quick one.

We had asked whether or not the Ministry of Justice had a view on a statutory requirement to have a review of the independent investigations office every five years or some such figure, similar in a sense to the Office of the Police Complaint Commissioner. The response was that the ministry will conduct regular ongoing reviews. That’s certainly an expectation. I don’t think any of us would expect the ministry never to look at the IIO again. But I wondered: is there a concern or just you’re not able to answer the question around a five-year review at this time?

J. Chalke: There’s no concern, if that is something the committee is disposed to consider that would be in the public interest. Our purpose in talking about the reviews we’re doing was simply to indicate to the committee that the successful long-run implementation of the IIO is a matter of great importance to the ministry. We are committed to making sure that this is a successful organization. So to the extent that the concern is, “Is that something that’s important to the ministry?” the purpose of our comments is simply to emphasize that it absolutely is.

D. Plecas: As you know, all of us are committed to the notion of civilian oversight. I don’t think there’d be anybody who would question that. The question is: what model ought we to use?

Given your presentation, you seem to be telling us that the ministry is all in, if you will, with what we might call the Justice Braidwood model. That is that we have civilians throughout. I guess my first question is: is it the case that that is the view of the ministry — that that is the model?

In thinking about that, it’s my understanding that there are other models in Canada, one in particular — the
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Alberta model — where there’s a civilian head and police officers, I think, almost entirely as investigators. That works quite well. Why wouldn’t we consider that model?

I ask all of this because of the concern of some that by push, push, push with the having people who have no police experience in at least the last five years, we are not necessarily getting the very best investigators doing the job.

J. Chalke: I’m interested to think that that was the impression I left you with.

The ministry’s number one objective is that the IIO conduct credible, professional investigations that engender the confidence of the public in the thoroughness and professionalism of that process to the extent that that can be accomplished with a civilian investigatory team. That is, for the reasons that Justice Braidwood articulated, preferable, because it creates the confidence in itself that individuals with no connection to policing are carrying out that investigation.

But that’s a subordinate goal to the primary goal, which is that those investigations be credible, be professional and, in the event of a prosecution, those investigations are revealed to be professional and be properly done.

D. Plecas: With all due respect to Justice Braidwood, again, remembering that is one opinion on what we need to do to get a perception of independence and to actually have independence, one wonders: if we extend his logic, then we might apply that same logic to justices.

We might say that if we really want to have an independent judiciary, we should not have anyone who has ever served as a lawyer, because those same people might bring to the bench some kind of bias. Of course, we know that’s not true, but what would be the difference there?

I mean, if the concern is there’s a police officer going into the job and bringing with him a bias, what would be the difference?

J. Chalke: Well, without commenting on the model you’re suggesting for appointments to the judiciary….

D. Plecas: I’m definitely not suggesting that. I’m saying that the logic would be the same.

J. Chalke: I guess the issue is that there may be more than one way to accomplish credible, professional investigations. I think it’s a point on which reasonable people can disagree, that there may be more than one way to achieve that.

The goal that the ministry has, number one, is that those investigations be credible and competent. For that reason, when the amendments to the Police Act that led to part 7.1 being established were put in place, rather than a strict time frame of five years, as was contained in Justice Braidwood’s report, really it was created that it was for this committee to review progress towards that goal. But ultimately, the achieving of that is something that will have to be done as a subordinate goal to the goal of achieving a professional and credible investigatory team.

D. Plecas: I guess, again, I’m troubled that we seem to be moving towards that goal regardless. I’m also reminded that we have a concern…. I would agree that we should have, as apparently, the ministry thinks, that anyone who’s investigating a sexual assault ought to have some specialized expertise. It’s interesting that we would say that and say that, because of that, we wouldn’t be pushing for civilian investigators there. Yet we’re saying it’s okay to investigate a homicide.

Why would we be thinking that? Why would we be entertaining the notion of saying that we ought not to be thinking right now of expanding the mandate to include sexual assault — and I certainly agree with that — but at the same time saying that it’s okay with investigating a homicide involving a police officer? It’s not consistent to me.

J. Chalke: The consistency is that it may be for a time, in the event that the mandate is expanded, that the investigatory team that is necessary for credible investigations with respect to sexual assault would have to include police officers, in the same way that the investigatory team with respect to deaths or serious harm currently includes people who have served as police officers.

D. Plecas: If I may just make one last comment, then. I guess I’m saying that, overall, I’m not convinced…. I haven’t seen anything to me that’s compelling, to say that we ought to have this organization filled completely with civilians. I’m not sure that there’s a strong argument for that — unless somebody has one.

J. Chalke: Well, just to echo Justice Braidwood’s comments originally, which were that certainly the concern is that without that in the long run, in order to achieve that question of public credibility, an entirely civilian investigatory cadre of investigators would be required.

As I said, it is a point on which I think people can disagree, because really it’s the outcome of credible investigations — how you create credibility in those investigations — that’s the goal. There’s probably more than one way to achieve that goal.

M. Morris (Chair): Thanks for that. That’s something that we can certainly deliberate as we finalize our discussions on this.

K. Corrigan: I wanted to go to the issue of review every five years, similar to a review by a special committee, and whether or not that’s a good idea.
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I guess my comment on that…. It doesn’t sound like you’re taking a strong position one way or the other. I think you’ve said that if that’s something this committee decides, then that’s fine, but there’s no strong recommendation that that happen.

To me, the process that has happened as a result of this committee’s work is pretty good evidence that it’s not a bad idea to have a review every five years. My question would be not particularly to you as witnesses but just observations that…. And we will discuss this, obviously, in our deliberations, but I think I’d like to say it while we have witnesses here.

I’m not sure that we or the public or some of the presenters, some of the witnesses…. I’m not sure whether that information would have come to light or been made public if it had not been for the fact that this committee was called into existence to do this review.

I’m not sure that there would have been the light that was attached to the report of the civilian monitor into the death of Gregory Matters, which I think is useful to the public, to have that report.

I’m not sure, and I certainly am not speculating on this, that that appointment of the civilian monitor necessarily would even have occurred if there hadn’t been the existence of this committee. It may or may not have, but that announcement was made the day after we had a meeting and asked some questions about culture, and so on.

I’m not sure that the families that were involved in that case and some of the other witnesses really would have had a chance to air publicly some of their concerns about the operation of the independent investigations office.

I’m not sure at all that we would have had an opportunity to see the analysis and the various reports that have come from the Justice Institute, the SWOT analysis and the other information — which I, by the way, thank the chief civilian director and his office for being so open about providing. It’s been very helpful.

I think all of that information that has been very important to this committee and, ultimately, is important to the public wouldn’t necessarily have come to light if it hadn’t been for this process. I am going to say, when we get to deliberations, that I think it will be important to at least consider a review every five years.

Do you have any opinion on whether or not this depth of information, this breadth of information, would have become public if the oversight in the past had only been within the Ministry of Attorney General?

J. Chalke: It’s hard to speculate, I suppose. What we had indicated last time — and I think Mr. Deitch indicated today — is that the timing of our more formal review would be linked with the term of the chief civilian director. I guess I can’t really say — because that event is in the future — whether or not that would yield analogous public interest. I guess it’s a matter for speculation.

K. Corrigan: Is it, then, the intention that that process, that review that is going to be done by the Ministry of Attorney General, is going to be as public a process? Will the reporting be as public? Both of those things. I’m wondering what the process is going to be with regard to that review.

J. Chalke: Premature to say. Unfortunately, we haven’t really considered how that is to take place.

S. Chandra Herbert (Deputy Chair): I appreciate the answer that you’ve given around sexual assault and the question of sexual assault. It was one that we had a number of presenters speak to — the need to include sexual assault in the IIO mandate but not yet.

They felt that, as it is a young organization, it needs more time to ensure that all of its processes are stable, that they’ve really got the organization together culturally and are all moving in the same direction. So I appreciate that it was not dismissed but that it will be considered. I believe 2016 was the year discussed to look at that as well as other potential changes.

I understand that you don’t want to speculate about what such a review would look like, but certainly, as one of the members of this committee, I find that it would be helpful to involve those community organizations and those that have asserted that sexual assault needs to be added and also, of course, the police.

I know the RCMP said that, certainly, they didn’t have a problem with sexual assault being added to the IIO mandate. They thought that would make sense. That was pretty widespread, just as long as there was good training.

I did think that the question of: does the Ministry of Justice have faith in the IIO and the civilianization process of it…? I’ve seen the evidence, at least, of why we should continue to support a civilianization process, with a number of police stating that they support it as well.

I think the evidence is there. Some may disagree with that evidence, but, at least in my opinion, I think civilianization does make sense. I don’t have further questions for the ministry, except for one.

I guess various assertions have been made around legal problems, around financing, settlements, etc. Maybe this is a question for our next meeting. I just wanted to confirm that no legal cases have been launched against the Ministry of Justice or IIO at this point. If that’s a question for later, I certainly can do that later.

J. Chalke: There are no court applications that I’m aware of, but I don’t want to speculate beyond that. I’d sort of conditionalize it as “to the extent of my knowledge.”
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S. Chandra Herbert (Deputy Chair): That’s what we were told earlier, so that’s fine.

M. Morris (Chair): I’d just like to make a couple of comments myself. I’ve put myself on the list for the end here.

With respect to sexual assaults, I guess I’m relying a little bit on my previous background as a criminal investigator. Sexual assault is a specified criminal offence. If somebody makes an allegation of a criminal offence, then that needs to be investigated by the police.

What I found in my experience, and I’m sure it’s been the experience of police forces right across Canada, is that a lot of times people in authority — whether they have been teachers, whether they have been social workers, whether they have been police officers, whether they have been members of the bar — have had allegations of sexual assault brought against them by people in a manner for retribution or in some kind of a nefarious manner that doesn’t support any actual offence that has taken place.

Police officers are very susceptible to this kind of behaviour from various segments of society just by virtue of their job. We have to be very cautious going down that road to make sure we don’t open a door that subjects the police officers…. We have great police forces across Canada that provide a very professional service for us. I agree with the mandate of the IIO to look at the serious injury or death segment of functions within the realm of their duties, but to expand that any further — I’m sure we’re going to get into some discussion of this in the future — I think is going down a pretty rocky road there.

I did have one question. Maybe it’s in the material that we’ve gotten so far and I’ve just forgotten about it. You mentioned about the non-statutory advisory board that we currently have in place providing oversight to some degree. What does that look like today? Who makes up that non-statutory advisory board?

J. Chalke: I think I’ll defer that to the chief civilian director. He’s going to be speaking to you next. It’s an advisory board to his organization. There is one member of the Ministry of Justice who sits on that board, from the policing services division. But it’s very much a group of both police as well as community individuals who make that up. It’s quite new. I believe they’ve had one meeting so far.

K. Corrigan: I’m wondering if the ministry has any recommendations or any thoughts about possible recommendations with regard to changes that should be made, given the development of the IIO.

Are there any…? I haven’t really heard anything that would be recommended by the ministry, and I’m wondering if there are any recommendations at all about changes that should be made to the mandate — and we talked a bit about the mandate — or to the operations, legislative changes that need to take place. That may be getting into policy. You may not be able to do that. But just any observations even.

J. Chalke: Considering this committee’s mandate and certainly your reflections on this question of civilianization that we’ve had a bit of a discussion about this morning, I think that’s something we would be very interested in hearing — what this committee, on reflection, thinks about that issue.

Obviously, there is an aspirational goal set out in the act and in the mandate of this committee. Yet it very much reveals that tension I spoke about before in terms of capacity to conduct professional investigations linked with whether or not that’s possible with an entirely civilian-composed investigatory team. I think hearing from the committee on that, which I certainly think is a key part of your mandate, is something we would be very interested in.

S. Chandra Herbert (Deputy Chair): I just wanted to ask if you had any thoughts about reports from the civilian monitor being made public. If a civilian monitor is appointed, my understanding is there’s no provision requiring that those reports be made public. I wondered what policy reason there is to give that flexibility.

Certainly, if a civilian monitor is appointed, my understanding is it would likely be because there was public interest in the case, that there was a real concern, a real need to ensure that what was done was just. But I’ve heard concern that there is no requirement that those reports ever be made public.

J. Chalke: I guess the issue for me would be whether it’s possible to envision a report from a civilian monitor that results in the IIO thereby re-engaging an investigation and, in those circumstances, whether the public interest is then satisfied by the completion of the IIO’s investigation and either a referral to Crown counsel or public reporting that no referral to Crown counsel is to be made — and commentary at that point about the actual civilian monitor’s report.

There may be in that scenario circumstances where it’s not necessarily appropriate for the civilian monitor’s report itself to be made public but rather the outcome of any subsequent investigation that derives from the civilian monitor’s report. I guess that would be my concern about a legislative requirement that mandated the civilian monitor’s report itself to be made public.

The other thing to note is that the appointment of a civilian monitor isn’t necessarily, if I can put it this way, a
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post facto exercise. It can happen during the currency of an investigation, which obviously raises other complexities.

D. Bing: I was just wondering about the ministry conducting these regular reviews of the IIO. I was wondering if it really should be fixed versus a flexible review.

I was thinking, from my experience in local government…. We had a mandate to review the official community plan every five years. Yet what happened was that it would sometimes take a whole year to assemble the committee to conduct the review. Then when they started the review, it took two years to finish the review. Then it was time to start over again two years later. I’m just wondering if maybe it shouldn’t be a little more flexible mandate, a five- to seven-year, to conduct a review.

You were also saying that the Police Commission was reviewed every five years. Is that correct?

D. Bing: I guess if we want to stick to what’s been done before, we’d go with five years, but my thinking, from my experience, is that maybe we should be more flexible. What do you think of that?

J. Chalke: I think we were thinking very much in terms of a more formal review as being linked to the appointment of the chief civilian director and that timing which, by statute, is five years.

K. Corrigan: I have another question, but that just raises the issue. I can’t recall from the legislation if the position of the chief civilian director can be renewed. And is there a limit on how many renewals?

I have another question. I want to ask a couple of questions about the complaint process. The notes I have here say that the policy came into effect in July of 2013. If there’s a criminal complaint, then it goes to the Office of the Police Complaint Commissioner.

Is that right? It’s been a while since I’ve read the legislation. Then, if there’s a non-criminal complaint, it goes where?

J. Chalke: If I might defer that to chief civilian director, since it’s his internal complaint process. I’d rather he directly deal with that question.

K. Corrigan: Okay. And then, if there’s a complaint about the chief civilian director, that goes to the Deputy Attorney General?

K. Corrigan: If a family, say, had a concern about an investigation — or a victim had a concern, I guess, about an investigation — and their complaint was with regard to the chief civilian director…. Do you believe it is satisfactory that if they have a complaint, that goes to the Deputy Attorney General? What’s the accountability in that, I guess? What level of accountability would there be in that process?

J. Chalke: It’s speculative. We haven’t had the kind of complaint that you’re describing occur. The process that the Deputy Attorney General would determine would be appropriate would have to depend on the type of complaint that underlies your scenario. I think the answer would be: it would probably depend on what the presenting problem was alleged to be.

K. Corrigan: I guess my overarching lens with which I’m looking at a number of the aspects of the organization and accountability is: how is the public made aware? What is the accountability to the public? I’m looking at a lot of these issues to say: “Well, how is this made public, and how are we aware?”

What is the accountability to those individuals as well? What kind of recourse do they have if they’re not happy, for example? If they make a complaint about the chief civilian director to the Attorney General and they’re not satisfied, then is that the end of it?

I guess it goes back to: who is ultimately responsible? Should there be responsibility of the Legislature? Should there be a requirement for reports about the number of complaints? Apparently, there haven’t been any, so it’s just an observation. I’m not sure if you have any comment on that.

J. Chalke: I take your point. I don’t really have a comment, but I understand what you’re raising.

M. Morris (Chair): Thank you very much, Mr. Deitch and Mr. Chalke. Appreciate your attendance here this morning — and your staff.

What we’ll do now is we’ll take about a five-minute recess, and we’ll get ready for our next presenters.

M. Morris (Chair): Welcome, Mr. Rosenthal — appreciate you being here today — and Mr. Larkin. I will now turn the floor over to you.

R. Rosenthal: Thank you so much. Good morning everybody. Thank you for allowing us to come back to
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give some more commentary on your process. I’m actually glad to say that…. There were some questions asked previously in June which I deflected a little bit as far as some recommendations. Now, with the passage of some months and some additional experience, I’m able to provide some recommendations to the committee. I’ll get to that as we go on in the presentation.

Let me first start with just the introduction overview. We’re going to be talking about civilianization, administration, general operations, our investigative operations and then, obviously, other issues that have been raised by the committee and in public session. Hopefully, by the time I finish, we’ll have at least covered the foundation of the issues that I understand you’re interested in talking about today.

Let me start with our evolution of staffing ratios, which we did discuss back in June, but we’ve had some significant developments. When I presented to you earlier this year, in June, I reported that when including all of our investigators, we were anticipating a ratio of 48 percent civilians versus 52 percent former officers.

Our current numbers now show staffing of 53 percent civilian and 47 percent former police and law enforcement. Attrition, as will be discussed shortly, has permitted more progress towards this goal of civilianization than we anticipated earlier this year.

When we look at our two investigative teams…. The way we’re broken down is that we’ve got our two investigative teams now, and then we also have our public accountability team, and we have our operations team. Investigators exist in all of these. In the investigative teams, the two, it’s actually even more significant. The breakdown is two-thirds people who have never been police officers and one-third former police. We previously reported that it was going to be 55 percent civilians and 45 percent former officers.

Note at this time that our future recruitments will be very strategic. We are currently recruiting for a fifth team director, who is anticipated to be a former officer with significant experience in homicide and major crimes investigations. Our operational needs will be considered for all new hires to ensure that the need for competence in investigations is appropriately balanced with the long-term goal of civilianization. I think that’s in accord with what Mr. Chalke was discussing earlier.

Our attrition and progress towards civilianization. This is a slide that we presented last June, but it really does go to show that in two years we have achieved a higher level of civilianization than even the organization that’s similar to ours and that has the highest rate of civilianization in the western world. It’s the Northern Ireland Police Ombudsman’s Office, and it took them 14 years to achieve that.

Again, we can discuss, as we move on, whether the progress…. I don’t believe the progress has been too fast at this point, but I do believe it’s going to need to slow down as we progress, in order to ensure the competencies that are required to do these extremely important investigations.

Staff attrition has been fairly significant in these first two years. As you can see in this chart, in 2012 we had one former police officer who separated from the organization. In 2013 we had three civilians who resigned. This year we’ve had four former officers who were separated and then five former officers who resigned and two civilians who resigned.

The context for this attrition is really important. We’ve been receiving assistance from the organizational development group of the Ministry of Justice. We’ve spoken to the leader of the organizational development group, who’s advised us that new organizations typically do have an accelerated turnover for the first two to five years.

The main reasons for the high turnover include…. First, cultural conflicts can occur when a large number of new staff with diverse backgrounds enter an organization. Second, inconsistency in process can occur in a new organization that does not have fully developed systems or processes. And third, jobs change and evolve significantly over the first few years, which may lead to people leaving for jobs that they find more personally compatible. I would say that that has happened in this organization in these first two years. We can expect it to continue, but hopefully, we expect at a slower rate over the next three years.

Note that there have been a number of terminations of employment over this last year. Such actions were necessary to ensure that the organization is aligned from top to bottom with respect to our mission, vision and values and our expectations for independent and thorough investigations.

For the staff who resigned, there were many different reasons for leaving. Some of the resignations involve staff who were not willing or able to meet expectations. As such, the work environment was not appropriate for long-term employment with our organization. Some of the resignations involve staff who were highly qualified and motivated and who we were sad to see leave. Some left for personal reasons. Some left for a combination of personal reasons and these cultural issues and change issues.

Again, lots of reasons for this occurring. It is not something that is surprising to any organizational development expert. We have been acting aggressively towards the ultimate goal of fair, unbiased, thorough investigations and making sure we have the right people in place to ensure we’re able to achieve that goal.

Our hires have been nine civilians to replace those who have left. Then we’ve got two pending recruitments. One we anticipate being filled by a civilian, and another is a team director position, as I mentioned before, which we
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expect to be supervised by a former officer. Frankly, we expect this to be a person who can walk onto the scene of an incident and know exactly what to do — and be able to train others in exactly what to do as well.

The new hiring challenges. We have a new hiring protocol, which is being finalized as part of our strategic plan. We’ve included a possible inclusion of the JI assessment centre, which is currently used for police recruits. But we’re developing an IIO-specific assessment centre, which I expect that we will be able to use in future hiring processes. We have a better understanding now of investigative roles and agency goals, which will lead to hiring practices that can reduce attrition in the long term.

Then we do have some challenges. We have limitations on hiring, in that we have the five-year rule, where I am not permitted to hire anyone who has policed in B.C. in the last five years. Frankly, the high cost of living in B.C. has made hiring from outside B.C. or Alberta very problematic. I think our very first person from Ontario is being hired now. There have been lots of people who’ve come from any other province in the country and who simply have not been interested in coming to B.C. because of the high cost of living.

The statutorily mandated five-year rule I mentioned precludes me from hiring any person who was a member of a police force in B.C. at any time during the five-year period immediately preceding their employment.

As an example of how this rule has limited our ability to hire qualified persons, I was recently precluded from considering, as a candidate for a team director position, a person who was a former RCMP inspector with extensive major crimes experience outside of B.C. because he had acted as a complaint adjudicator, based in Chilliwack, for eight months within the preceding five years.

It also precluded from consideration RCMP instructors at the Pacific region training centre who had only taught policing in B.C. but had not actually engaged in the practice of policing in B.C. in the last five years, and it precludes me from consideration of any municipal police member who is current with respect to major crimes investigative experience. That has been extremely difficult.

Interestingly enough, in B.C. the police have gone through a great sea change in culture, to the point that they not only accepted the creation of the IIO; they’ve been some of the biggest supporters of the organization. The inability to hire somebody who’s gone through that sea change, simply because they have policed in B.C. in the last five years, causes difficulties in the hiring processes.

The committee asked me last June about any potential recommendations I had on how to do the job better. This is the first one. I am committed to the long-term civilianization of the IIO. I appreciate that the ministry and the legislation has given me the time necessary to do this in a tactical and appropriate fashion to ensure competency, but I would definitely support a relaxation of the five-year rule to give me more discretion in how to staff the IIO in order to ensure competency and long-term civilianization.

I would point out that I do agree with Stan Lowe when he testified here that there are former officers who can do this job extraordinarily well. There are people who have no police experience who can do this job very well. There are former officers who could do this job very poorly, and there are people with no police experience who can do the job very poorly.

I took the job knowing that civilianization was the long-term goal. I believe it can be done. I recognize the significance and the optics in getting members of the community who might otherwise not have faith in the independence of the organization. I understand that, and I agree with it. But as we enter this point in time when we need to be tactical on how we do it to ensure that competency and the optics, I do believe that a relaxation of the five-year rule would assist me in accomplishing that goal.

We are moving, as I mentioned in June — and it’s been more aggressive since June — to a permanent organizational structure for the IIO. Hiring a permanent chief of investigations was an essential part of moving from a transitional to a permanent type of organization. It’s assisting us in eliminating many of the areas of continuing conflict.

John Larkin, to my left, started as our new chief of investigations in July of this year. He was a remarkable hire, in that he helped the Northern Ireland Police Ombudsman’s Office, as their chief of investigations, move from a transitional structure to a more permanent one.

The transitional structure of the Northern Ireland Police Ombudsman’s Office had similar problems and conflicts between police and civilian investigators and moved towards a permanent structure which supported a culture of independence and accountability.

John joined that office when it was only two years old. He spent five years there. He was described as having grown with the organization and helped the organization grow. By the time he left, five years later, the Northern Ireland Police Ombudsman’s Office was considered the gold standard for this type of program. I have a lot of confidence that John will be able to take us in that direction as well. He’s been there; he’s done that. As such, when his application showed up in the recruitment process, it was a great opportunity for us.

In addition, as part of the permanent organizational structure, at the inception the IIO used lawyers who were granted temporary leaves of absence from the criminal justice branch to act as legal counsel for the IIO. This was the intent of the organization.

While it was always the intent of us to move to a permanent structure where there would be a permanent legal counsel, one of the things we did identify was that
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the lack of permanent legal counsel also led to a lack of consistency in advice and approaches to IIO policies and procedures, which sometimes resulted in conflict. So the creation of this position as a permanent part of the structure is really a significant move towards us as a permanent organization and reducing the risk of conflict within the organization.

Mr. Clint Sadlemyer, who is to my right, is Queen’s Counsel. He has been hired as the first permanent legal counsel for the IIO and is assisting us in that regard.

A key and positive change in our organizational structure is also going to be brought in with the hiring of our chief administrative officer. This is a new position, which we recently created and are recruiting right now. The CAO is anticipated to run the day-to-day investigative functions of the IIO and to assist in the creation of a culture of independence and accountability in the implementation of our strategic plan.

The CAO position will actually allow me to focus my attention on stakeholder and media relations, jurisdictional assertion decisions and high-level reviews of investigations to determine if I make a report to Crown counsel or issue a public report. The position will supervise our public accountability and corporate sections, which will then allow public accountability to do more outreach, particularly with vulnerable people in affected communities, and it will allow our corporate section to work, again, on the culture change and the strategic plan implementation.

I expect this person to work with John to ensure seamless support for the investigation section and to help eliminate some of the silos that were created early on in our development.

Also, after evaluating the IIO investigations directorate performance workload, our new chief of investigations, John Larkin, recommended and implemented a significant change in the structure of our investigations directorate to better ensure resilience for on-call response and to ensure a more appropriate workload distribution as recommended by the JIBC. I’ll get into that report shortly.

Specifically, we combined our four separate teams into two teams. This helped us break down silos that existed between the teams and management within the teams; ensure a more robust on-call response, as we had more people on call, available to respond to significant critical incidents and ensuring that investigators were, therefore, able to respond appropriately; and ensuring more equitable workloads amongst the teams, which had been identified by the JI as one of the issues of conflict within the organization.

That brings me to the employee surveys. Over a period of four months in 2013 we conducted three surveys of staff. The first survey was conducted by the organizational development group of the Ministry of Justice after IIO staff were unable to develop by consensus our mission vision and values. Our organization was less than one year from its start date, but it was already clear that there were cultural conflict and morale issues which had the potential of negatively impacting our long-term success.

The cultural clashes involved varying concepts of how information should be communicated and how our work should be accomplished. The clashes involved differing cultural ideals brought to the IIO by former police officers, by staff with public service experience and staff coming from the private sector. Generational conflict also existed, with differing ideas on work-life balance, including work hours, on-call availability and even work attire.

Prior to facilitating the creation of our mission and vision values, the OD group, the organizational development group, advised that the best course of action was to conduct a SWOT analysis. What that does is look at strengths, weaknesses, opportunities and threats faced by the organization. It’s a computer desktop survey which asks staff to comment on those issues. It was conducted in August of 2013, and 60 percent of staff participated.

The SWOT survey was conducted in August 2013. It highlighted conflicts that had developed in the last year and also highlighted significant criticism of the leadership and management of the organization. Upon reviewing the results of the SWOT, the OD group advised that due to a quick start-up of the IIO and due to the lack of clarity with respect to goals, roles and processes at the time of start-up, the cultural conflict and leadership challenges we faced were inevitable.

Now, shortly thereafter, in October of 2013, the Public Service Agency conducted their biannual work environment survey, which is also a desktop survey, which involved all PSA personnel. It included IIO staff, but it was not developed specifically for the IIO. It was conducted shortly after the SWOT survey, and the results were not to be available until January of 2014.

After being advised of the SWOT results in September of 2013, I determined that the best course of action was to initiate an environmental health assessment of the IIO that would include the participation of all staff — not just 60 percent — and include former staff who had voluntarily left the IIO. This would involve in-person interviews, as opposed to computer desktop surveys that were relied on by the SWOT and the WES surveys, and would involve all staff to include the 40 percent who did not participate in the SWOT survey.

It should be noted that in-person interviews are known to provide more robust information than on-line surveys, and I believed that it would allow us to better identify the causes and consequences of our cultural conflicts and the leadership challenges that we had and would better arm us to respond to staff issues and concerns.

That’s why I’m emphasizing the JI report findings, because it is the most comprehensive report that we’ve got. The JI report made the first finding. They said that the IIO
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is in an emergent situation. “Its culture is a hybrid” — I’m quoting now — “mainly of Canadian police culture and the British Columbia public service. It’s clearly a work in progress in an early stage of organizational development in relation to where its creators intend it to be.”

Given this — the context and circumstances surrounding its launch, including an extremely short start-up time, strict hiring criterion and intense public scrutiny and the unique and highly complex nature of the IIO — many of the issues and concerns outlined in this report are to be expected. Basically, on the challenges we’re facing we got the same comment from the JI organizational development experts as we did, obviously, from the ministry ones.

They highlighted four areas of concern: a lack of confidence in senior leadership, cultural issues, conflict resolution and communication issues, and processes and directives.

The first area that they identified was a lack of confidence in senior leadership. However, they also identified that there was no consensus on who in senior leadership was to blame for the organizational deficiencies, which was consistent with this idea of this conflict amongst and between and throughout the entirety of the organization.

They did identify, however, a group of disaffected staff who expressed their inclination not to accept the leadership from someone who had any number of characteristics which were not relevant to the performance or the fitness to do the job. So there were people in the organization who simply said: “I wouldn’t have picked this person to be in a leadership or managerial capacity, and I’m not going to listen to them. I’m going to resist whatever instruction we get from them.”

This concern in the report highlighted the difficulties that existed with respect to our internal communication — the creation of a police-type culture that was inconsistent with my own values and specific biases amongst some staff, which would make it difficult for the organization to move forward without significant staffing changes.

The JI identified a paramilitary culture within the IIO such that employees discussed any failure of IIO work routines almost entirely as the responsibility of management, with little reflection on the role of the individual employee. This is inconsistent with the fact that we hired these investigators into business leadership roles, excluded managers who we expected to act as such. The failure to accept any personal responsibility for what was going on in the organization was really problematic and, again, identified a very strong need to push the organization in a different direction and, if necessary, to make staffing changes to ensure that we were going in that right direction.

The other area of concern that the JI identified was cultural conflict within the organization. They identified conflict between a police culture and a public service culture, and they identified police suggestions that civilians…. These are ex-police, investigators in the IIO, who stated civilians cannot be competent investigating police-related critical incidents. They found the clash of perspectives to be complex, subtle and systemic.

I need to comment on the fact that the JI report identified that there are IIO investigators who are former police officers who believe that civilians could not competently investigate police officer conduct. Of course, these are the people we hired to help train the civilians to do just that.

At the time of hire all investigators stated that they would work to support the long-term goal of civilianization, of the IIO as an organization and as a corporate goal. As such, the finding was troubling and indicated a lack of universal internal support for this government mandate.

The finding assisted me in identifying that there were staff currently serving in the IIO who either needed to dramatically change their attitudes towards their co-workers and to support our mandate or who needed to be managed out of the organization in order to ensure our long-term organizational success.

I’ll point out that I do not agree with the suggestion that civilians cannot competently investigate critical incidents. In fact, I’ve found that with appropriate professional backgrounds and training and support, many of our civilian investigators have the capacity to ensure fair, thorough and unbiased investigations.

Again, I’ll go back to what I said before. There are former police officers who can do this job extremely well. There are people without police experience who can do this job extremely well and vice versa. It’s a matter of really finding the right people to do this job, because it’s not easy.

Third, the JI report identified concerns regarding our internal communications, a lack of clarity in report-writing processes and expectations and inconsistent workloads amongst the four teams. I’ve already explained that I think we’ve fixed the problem of the unbalanced workloads on the teams, thanks in part to the leadership of Mr. Larkin.

On the lack of clarity in report-writing processes, we have made some real, excellent strides in that with respect to our strategic plan, including a new report-writing template so that we can get consistency in how this is done, as opposed to people simply doing it the way they think it should be done. We’re trying to create an IIO way of doing it, as opposed to a former RCMP way of doing it or a former municipal police way of doing it or a public service agency way of doing it.

It also identified that I had to provide clarity of expectations to our middle managers and work to ensure that all of them were accountable for how they communicate on behalf of myself and the IIO executive.

Let me move on to the JIBC report recommendations. There were five recommendations that the JI made, and I’ve accepted all the recommendations.

They recommended, first, to adopt a phased approach to civilianization and begin the process as soon as
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possible. As discussed, we’ve already made significant progress in that regard.

Two, they recommended developing personal, tailored career development plans for all civilian investigators. What we’ve done — and I’ll explain this a little bit later — is that we’ve hired a new training manager who has the skill set necessary to develop career development plans for all investigators, not just civilian but ex-police as well. They are hired as public service employees. In essence, as long as they’re doing the job well, they can stay as long as they want. She has also been able to develop an excellent training curriculum for incoming investigators.

The third recommendation was to seek increased organizational development support to make the transition to a fully civilian organizational structure. We’ve been doing that since the time that I first…. In fact, with the initiation of the SWOT recommendation, the organizational development group has been on site basically on a biweekly basis for the last year, working with our strategic planning work group and working with the executive in order to try to ensure that we’re on the right track.

Fourth, they recommended providing senior leadership with dedicated, ongoing on-site customized education and coaching support focused on leading the establishment of the permanent structure of the organization. And we’ve been doing that.

I have to make a comment. We recently received a FOIPPA request for the cost of the coaching, and you’ve heard testimony criticizing the fact that members of the executive, including myself, needed any coaching. That’s really troubling that people would think that.

Frankly, in the public service there is a strong culture of executive coaching. There are executive coaches provided, that the government pays for, all throughout government. In fact, many, if not most, of the assistant deputy ministers throughout government have that kind of coaching support. It does not mean that they were deficient when they were hired. It does not mean that they are deficient in their performance. It means that anyone and everyone, no matter how talented, can benefit from that kind of support. So the suggestion otherwise is extraordinarily shortsighted.

Recommendation 5 recommends developing a more detailed definition policy and procedure than currently exists with respect to the investigation and report-writing standards, and we’ve been doing that.

I think we’re achieving that result — again, with the leadership of Mr. Larkin, who has also worked very hard to create a policies manual, which we had not had the capacity to do at the beginning. We did not really have the people in place who had the experience in actually creating that kind of policy. With Mr. Larkin coming in, he has been able to really manage and lead the organization in that direction, and that has been a huge benefit to our organization.

We have come up with our mission, vision and values. I think I mentioned this in June, but I thought it would be helpful just to mention. Specifically, the mission is “to investigate fairly, without bias, and to ensure accountability through public reporting.” We were able to reach this mission, vision and values through consensus as the result of the assistance and facilitated support of the organizational development group.

Our vision is building confidence in police accountability. Our values include integrity, respect, teamwork, impartiality and professionalism.

On the vision, I must admit…. I have this for later, but I have to mention that, as Ms. Corrigan mentioned, building confidence in police accountability includes transparency in the review processes. I have been in police oversight for 15 years. You will never hear me suggest that any level of independent review that’s transparent is a bad thing. Even if it makes my job difficult at times, it is something that’s essential and necessary to our society.

Our strategic plan. I’ve mentioned this before, so I’ll just go over this very quickly. The strategic plan is to be completed in January 2015. I think I reported last time we’d expected it to be completed in September. It has taken longer, but the organizational development group is now writing it, based upon many, many hours of meetings and discussion. They’ve told me they expect to have a completed work product for us by the end of next month.

Our projects that were completed in September 2014 included the delegation of authority matrix, updated investigative report template, compressed workweek and dress deportment.

The projects to be completed at the end of this month include a draft investigations manual; file process mapping — which was actually a really significant job to document everything, the processes that we’d put into place, to make sure that they were appropriate and would support our long-term success; an investigator-hiring protocol, to include the JI assessment centre, for future recruitments; and an internal communications strategy.

Projects to be completed in 2015 include business continuity planning; information security planning; performance and timeliness goals; and a continuous quality improvement framework.

Our investigative operations. This is something that I know is of real significance. This will lead to my second recommendation to the committee.

Note that section 38.11 of the Police Act requires me to refer to Crown if an officer may have committed an offence. As such, I must refer a file to Crown if I cannot exonerate an officer of criminal culpability. As previously stated, this is a significantly lower standard than that used by police services in B.C., who only refer files to Crown if they’re recommending charges and if they believe there’s a substantial likelihood of conviction.

The result of the standard is that approximately one-third of IIO files result in referrals to and reviews by
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Crown. The other two-thirds result in public reports because there’s no evidence to support that an officer may have committed an offence.

With respect to the reports to Crown counsel, the end result is that the significant majority of the files we send to Crown counsel do not result in criminal charges. The current numbers show that 85 percent of IIO referrals have resulted in the issuance of clear statements by Crown concluding that there are no criminal charges warranted.

I’ve looked at this very carefully. I mentioned in June that there was a benefit of sorts to the IIO not making recommendations and being able to walk that fine line. There is a benefit because in Ontario every time the SIU director lays charges, there’s criticism from the police community, and every time he doesn’t, there’s criticism from family members or civil rights communities. We’ve been able to walk down a fine line in the vast majority of our files. Because the referral standard is so low, people understand why we either are or are not referring to Crown.

I would submit, however, that based upon the current referral standard, the IIO is sending too many files to Crown for their consideration, which negatively impacts the timely resolution of the files; creates unnecessary work for Crown and unnecessary stress to officers who do not know whether the criminal charges will be laid against them; and in expectations for the public or affected people that maybe charges will be laid, when there’s really no chance that they will actually happen.

The exact verbiage of such statutory language would need to be resolved with the advice and consult of the criminal justice branch, but I believe that there should be a middle ground.

There needs to be a way where we can talk about a reasonable likelihood of conviction such that the ones that I’m sending now that I know there is no way in the world criminal charges will be filed I can close out without a referral, and the ones the Crown needs to review in order to ensure their independence and the integrity of the process get done.

I don’t have for you specific language on that, and I do think, frankly, that it’s up to the policy-makers to come with it. There has to be, and I believe that there can be, a middle ground that will get us to the point where we’re not causing the harm to the timeliness of the investigations as well the harm to the police officers involved and the affected people. I expect it’s something we could do and, thereby, would have a significant positive impact on the operation as a whole.

Now I want to get into some of the questions that were proffered by the committee and try and answer those as well as I can. One of the issues was really…. I think it may even have come from the point of the WorkSafe investigation that was turned down by Crown because they followed administrative procedures instead of criminal.

We conduct critical incident investigations as opposed to criminal investigations. That means that whenever an officer’s action causes death or serious harm to a person, we must do an investigation regardless of whether there’s an allegation of criminal conduct or not, or any reason to believe there’s criminal conduct or not.

However, given that our investigations must be reviewed by Crown to determine whether an officer committed a criminal act and may be used to support a criminal prosecution where an officer has or where Crown has concluded that an officer has, we follow all criminal justice protocols and procedures to ensure that any evidence we collect will be admissible in a criminal proceeding. Involuntary compelled statements of subject officers are not considered by the IIO, as they’re not admissible in criminal court.

Some testimony you heard previously was that we should have the power to obtain compelled statements of officers. Interestingly enough, we do. We have the power, and we do regularly obtain compelled statements from witness officers who have no criminal jeopardy.

We have the power to obtain compelled statements from subject officers who do have jeopardy. We do not exercise that power because, if we did, it would negatively impact any possibility of a criminal prosecution. We’d basically be immunizing the officer by…. We can’t use their statement against them, nor can we use anything that we learn from that officer against them, which is why we really don’t need…. We have the powers we need. We simply exercise them in a discretionary way to ensure that if in fact a crime has been committed, then an officer can be held accountable in criminal court for that.

A question was asked about body cameras. I’m going to defer, obviously, to the director of police services on the work they’re doing to determine whether or not to have body cameras and, if so, under what circumstances.

I’d just point out that, certainly, just recently, the U.S. government announced a federal initiative — $75 million over three years — to help purchase 50,000 body-worn cameras for police. There are certainly perceived benefits in the favour, including strengthening police accountability, preventing confrontational situations, providing an accurate record of critical incidents and incidents resulting in complaints, improving transparency, identifying misconduct, strengthening officer performance and improving evidence documentation. All of this has been identified in the U.S. by the community-oriented police and services office.

There are challenges, though. There are privacy considerations. There are data and storage retention issues. There are financial costs. There’s a need for policies on activation and deactivation. I’ll explain one other challenge on the next slide.

There have been pilot projects in Canada. Obviously, it’s being considered here in B.C. What I would say is
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that there are certain files that we investigate where body cameras would be particularly helpful. One that I’ve identified has been with respect to high-risk emergency response team actions, particularly in rural areas where there will not be any other witnesses. In those cases, having body-worn cameras and the availability of that technology to assist us in our investigation would be of great help.

We also have a significant number of police service dog files. I actually expect that number to be reduced as a result of the government implementation of new police service dog policies.

I was very happy — and I’ve got to give kudos to the police services division — how they did it. They included input from not just police but civil rights organizations and our office as well — as well as the police complaints commission. But there are often no independent witnesses in these police service dog cases. There’s the handler, the affected person and the dog. As I mentioned before, we can’t seem to get any information from the dog, and then it becomes a one-on-one. Many times they have to go to Crown because I can’t resolve the incident.

Having body cameras on police service dog handlers in those cases would, again, very much assist in our investigations and the decisions relating to them.

Finally, taser cameras would also be of great assistance to our organization. Please do not take this to mean that I am saying it needs to be implemented now or how it should be implemented. All I’m saying is that from my perspective as the head of investigations at the IIO, this would be something that would be helpful, and if it can be done, I’d certainly welcome that being done in a professional, appropriate way.

There is a policy challenge that would come. This is a controversial issue, potentially, in policing. My position and the IIO position is that any officer involved in a critical incident who has a body camera would not be permitted to review that body-worn camera video prior to being interviewed by our investigators. It would be considered the property of the agency, and that agency would turn it over to us. We would review it, and then we would determine how it would be used during the course of the investigation. I think that’s essential to ensure the integrity of the critical incident investigation.

Police notes. A question was asked about that. One of the issues there…. In Ontario officers were using lawyers to vet their notes in critical incidents. What they would do is…. They’re required to write extensive notes about the incident. They would then confer with a lawyer. They would change the notes accordingly. Then they would submit them to the agency and then, potentially, if they were witness officers, to the SIU. If they’re subject officers, the SIU doesn’t get it, because it’s a compelled statement. It’s put aside for later.

The SIU and some affected families went to the Canadian Supreme Court. Wood v. Schaeffer came down and said they can’t do that and gave some very strong public policy statements in favour of the need for contemporaneous notes or reports written by officers involved in critical incidents.

In our experience and in our MOU…. Section 15 of the MOU does prohibit officers from communicating with any other person about a critical incident prior to being interviewed by an IIO investigator. As Mr. Chalke said, we have dealt with that issue here by MOU. We did not have to resort to regulation.

I have no indication that officers in B.C. have been consulting with lawyers prior to preparing their PRIME reports here. It’s not really the handwritten notes like it is in Ontario. It’s police reports. I have had no indication that that’s been happening. If it did, we would obviously take action on it.

On some occasions, witness officers have not prepared notes prior to being interviewed. In general, timely interviews will minimize the harm of officers not writing notes, but whenever we’ve found that in fact we think the officer should have and it would have assisted, we make sure we let the employing agency know about that issue as well as the police complaint commission or the RCMP’s civilian oversight body.

Subject officer reporting as to whether they’re writing contemporaneous notes falls within the jurisdiction of the employing agency, not the IIO. I am not aware at this time to what extent subject officers are consistently being required to write contemporaneous notes, but if or when this issue comes up, I identify it on a case-by-case basis. Again, I would engage the employing agency, the OPCC and the CRCC, which is oversight for the Mounties. I would engage them in that issue to try to ensure that, in fact, contemporaneous notes are being done, as the Canadian Supreme Court has stated is a best practice in policing.

Our training. There were questions asked about that. Our initial training included an IIO-specific course of the JI that went on for three months, a major crime management course for our former officers, team commander training for our team directors and specialized training provided on an ongoing basis.

We now have a new training protocol that’s based upon the hiring of our manager of training in August. The new training curriculum is better than what we had at the beginning. I have a high level of comfort in the work that’s being done now. I include in the slide some of the things that we’re doing, but one of the new things is working with SFU and BCIT on getting our investigators into appropriate courses as well — so higher-level graduate courses that would be applicable to the work that they’re doing.

One of the key things that we’re doing, again, is individual plans for individual investigators to ensure their success and a new training curriculum for our investi-
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gators. At the beginning we actually sent our investigators out to JI for block I training. Then they’d come back, and they’d get internal training. Then they go to block III.

We’ve actually found that we need them at the IIO first. Then, once we’ve given them a comprehensive, IIO-centred training, we’ll send them to the JI for block I training. Then they come back, debrief, discuss, go back out to JI for block III, then come back, debrief, discuss.

I’m feeling a high level of comfort that we are actually getting where we need to go on the training for civilian investigators to ensure their competence. Again, we have to have the right person in place in order to then be able to train them to the appropriate level of competence and lack of bias.

The ministry pretty much covered my affected-persons program, but I’d point out that we actually have been very proud of this one. The program fills a void that previously existed when persons or families who are affected by police uses of force but did not fall within the definition of a crime victim….

There was a void. Nobody really knew how to handle them or how to treat them, so we now have an affected-persons manager whose job is, in some cases, to do death notifications, providing information on our mandate, on our process, on the status of our investigations and referring them to appropriate support services. That’s something that we identified early on as important. The Ontario SIU had started that a couple of years before, and we actually used their experiences in order to build our program as well.

The issue of mandate expansion. Really, it is interesting because, as we mentioned, Ontario SIU does do on-duty sexual assault. They will do off-duty if a police power is implicated. So if an officer is off duty and were to use their police power in some way or are alleged to have used their police power in some way, then the SIU will do that investigation.

Alberta ASIRT does do them on a regular basis but only as assigned by the Solicitor General. Nova Scotia SIRT is doing them on an ongoing basis. Manitoba will do them if they determine it’s in the public interest, as determined by the head of the agency. And with us, we will only do them if there is death or what is referred to as serious harm. The definition that we’ve received, and the legislative intent that I’ve been informed of, is that it does not include psychological harm, so we have not been doing that.

My position on it, basically, is that if our mandate were to be expanded, it would required that we hire experienced sexual assault investigators to conduct the investigations and to train other people to do it. We would have to create appropriate policies and procedures and train current investigators to assist in those investigations, and that would take time.

There would be additional costs associated with the hires and the training and getting ready. We would need an appropriate amount of time to hire the staff and create and implement policies and training.

I will acknowledge that it would be difficult to do right now, with all of the challenges we’re having on the cultural development and just trying to make sure we’re doing the job that we’ve been assigned to now, to continue doing it.

I would expect we would need a relaxation of the five-year rule to allow us to hire investigators who actually have current experience in B.C. with respect to sexual assault investigations. Bringing people in who are current in other provinces would have its challenges. Bringing in people who have been out for five years and are not current would be really challenging.

I would suggest that any such mandate expansion would necessarily need to include allegations of domestic violence. We always hear of sexual assault, but the reality is that police-related domestic violence is a significant issue everywhere, just because of all the nuances and issues and concerns.

I will defer to the ministries and anticipate a review of the IIO in this area, but regardless, if the decision were made that we should do this, we would need the time and we would need the resources to do it right. It would not be able to be done on the fly or in a fast manner without appropriate resourcing.

The last point is just…. I titled it “Advice and audit.” One part of the question was relating to the committee. I have to say that as a person involved in oversight in the last 15 years — I mentioned this earlier on, but I’ll just make it clear, if I didn’t before — I appreciate the value of any outside audit or review. I appreciate that it can provide a benefit on either a single or a continual basis.

You will never hear me state that that kind of review is not welcome or appropriate. Obviously, we want to consider it in the big-picture context, because if you’re spending too much time responding to the reviews and not enough time doing the work, that’s problematic. But again, I leave it up to the policy-makers to determine what that should look like and how often it should be.

I have created an external advisory working group, which consists of a wide variety of representatives from policing, civil rights organizations, the government and the community to help advise us on appropriate policies and protocols and try to make sure they’re in place to address stakeholder concerns regarding our operations.

Interestingly enough, though, because it’s a voluntary group, it does not have any governance authority over the IIO, and membership in the group has to be, by its very nature, consultative in nature. The civil rights communities can’t participate in the group and then be told: “Oh, and you can’t be critical of our policies that result from these consultations.” It’s consultative in nature, and participation does not necessarily equate to an endorsement
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of our policies or procedures.

In that sense, I move over to the concept of an oversight advisory board. What I would actually say is the one place where such a board could be of some significant assistance would be if it had some kind of governing authority, specifically about policy and procedure. The idea being…. I think I mentioned this in June. Determining what cases should fall within our mandate has been very difficult.

Reasonable people may differ. In some ways, to have a governing board that…. I could say: “Here is our procedure and protocol. Is this what you believe the public and government expectations are?” To have a group of people who are appointed in whatever particular way to represent the community, the government and what have you and have some governance authority to assist me in making those decisions, exercising that discretion, would actually be of significant assistance.

I’ll leave it again to the policy-makers to determine how that would look — whether it would be something like a police board, which would also have governing authority over budget or other areas or hiring or firing of the CCD.

That is not something that’s appropriate, I think, for me to comment on, as I work for the ministry and I accepted this job knowing what the structure would be. But those are obviously all issues that would come into play, and I can only say that there are various models of review, any one of which can work for the organization in the long term.

An organizational development person told me at one point: “Everyone is always looking for best practice.” He says: “Sometimes, it’s not best practice. It’s best fit.” I’ve learned in oversight that all oversight agencies are like fingerprints. They’re all different. The reason is because they need to serve the needs of their communities, of their province.

Every municipality, every province has its own unique needs and concerns and issues and cultures. As such, what I’d suggest to you is that I think we need to look for the best fit. There are a number of different ways to do it and I think could be done right.

With that, I’m open to any questions. Hopefully, I’ve addressed a lot of them already.

I have two questions. You suggested that we might rethink or we might consider relaxing the five-year rule, but I’ve also heard you say that, in effect, you’ve been able to do a good job up until now with the investigations you have with your move towards full civilianization.

Some people might say, “If we relax the five-year rule, we risk slowing down that process.” Like, it would be very easy for you to hire somebody, whereas in the current system we’re forcing you to work harder at getting civilians.

R. Rosenthal: What I would suggest is that if the public policy is clear and if the person in charge is required to follow that policy, which would occur here, giving them some discretion on how to do it would be of assistance. There are times when, frankly, having had a person who is current in B.C. policing in a certain area would have been very helpful. It would be helpful as far as ensuring competency.

We are doing it, but it’s been a struggle. I agree with Stan Lowe that, again, the perception’s important. I took the job knowing that this rule was in existence and knowing that it would make it potentially more difficult to achieve our ultimate goals but thinking and believing we could do it even so. The reality is that it’s really the person and not necessarily the background that makes the best type of IIO investigator.

I could, potentially, bring on some people to, again, help us civilianize. Mr. Larkin has extraordinary experience in critical incidents investigation. Having him in the office to assist others in learning helps bring us towards civilianization much faster. Having the right people in place to help teach actually assists us in the ultimate goal, as long as they are committed and understand what it is that they’re doing and why.

Secondly, could you help me better understand the difference between a case which goes to public report versus one that goes to Crown counsel? Now, I ask that because…. I was just doing the math here. Out of 78 concluded cases, you have 74 which were ultimately not…. There was nothing wrong at the end of the day.

D. Plecas: Yeah. I mean, that’s a lot of cases to go through just to get to the less than 10 percent where there’s something untoward.

R. Rosenthal: Yeah. And that’s one of the reasons my second suggestion is we find a middle ground for the standard. The standard is basically…. Some lawyers can quibble with how it’s defined, but it basically requires me to be able to exonerate so as not to refer to Crown. I mentioned this back in June.

If I have a police service dog incident — I’ve got an affected person saying, “He sicced the dog on me,” and I’ve got the handler giving a very detailed description of what the affected person did to justify the deployment of the dog — I can’t exonerate the officer. I have no in-
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dependent, objective proof. I know, however, that when it goes over to Crown, they’re not laying charges. They’re not going to have sufficient evidence to convict that officer of the charge.

There are many such files that get sent over. I would suggest that of all the files we send over to Crown, at least half fall within the area where I know that there’s no criminal charge that will be forthcoming, and I could have written a strong public report explaining why. But I’m not permitted to because this referral standard is so low.

D. Plecas: But in the some cases that you do, the 51 cases for which you have put together a public report, what was the basis for that?

R. Rosenthal: I usually…. Well, what I always had was some type of corroborative evidence — independent civilian evidence, video, radio communications which corroborated officer statements, affected people who said that nothing was wrong, all kinds of different varieties — where I had something, in essence, I could hang my hat on and say: “Look, it’s not just that it can’t be proven. The officer clearly…. We have evidence to establish that the officer did nothing wrong.” Those are the types of cases that I can exonerate.

One of the reasons that it’s so high — and I’ve been able to do it 51 times — is because, again, we’re required to do an investigation even when there’s no allegation of misconduct. We’ve had people…. We’ve gone and interviewed affected people, and they’ve said: “The officer did nothing wrong.” Obviously, under those circumstances, I’m usually able to exonerate.

D. Plecas: So just to finish, if I may. Then going with what you’re proposing — to have more discretion in terms of what does and doesn’t go to Crown — that would allow us to be fairer to officers.

R. Rosenthal: Right. And the key thing is that it would result in a public report. One of the things that I’ve committed to is — and it’s actually not required by statute, interestingly enough, but I’ve done it, and it’s part of our process and protocols — that any time a case is determined to have fallen within our mandate and I do not refer to Crown, there will be a public report explaining why.

Our public reports, actually, are more voluminous and substantive than any others in Canada. My feeling on it is that as long as I can get up there in public and explain why and reasonable people would understand it, then I should have the ability to close it and stop it from going to Crown.

There was a question earlier on about, well, what the affected peoples, then…. What can they do about it? What’s the appeal? They actually can either apply for judicial review if they believe that my position is unreasonable or arbitrary or capricious, or they can even file their own criminal complaint, which is then automatically reviewed by Crown to determine whether or not it would proceed.

I would suggest, though, that if I’m doing my job and I’m writing the reports correctly, we’ll see few, if any, of them. Thus far, we have not had a single one.

S. Hamilton: Thank you, Mr. Rosenthal, for the presentation. You’re obviously managing a very difficult environment at the time, and I certainly do appreciate the work that you’re doing on our behalf.

I guess what struck me most are, in the current sense, the issues that you’re having around morale. In your presentation I see the number of resignations. The actual number of separations concerns me as well. You alluded to it, and I guess I’m concerned about what your exit interviews are saying. By the pace that we’re moving at here, also, is this thing going to be an evolution on its own in the sense that we’re going to civilianize at what appears to be a much faster rate than we had anticipated?

On that note, your concern about the restrictiveness of the five-year rule. I do understand that it is public perception that’s driving this. I have all the faith in our former police officers doing these investigations as well, but having said that, we know the direction we have to go. But I would not be at all averse to having that discussion. I think you make a very, very strong argument for relaxing those limitations, especially given some of the examples that you provided in terms of the people that could be available to work but are excluded that you know would do a very good job.

I guess what I’m asking you to do, possibly, is comment a little bit about your environment, maybe expanding on it a little bit more now, and talk as well a little bit about moving forward with the relaxation of the guidelines. What’s that going to look like? How could we frame that in such a way that if we put it out for public consumption, it would be easily adopted, accepted?

R. Rosenthal: What I would suggest, first of all, is that if the legislation were basically…. And when I say “relaxed,” what it would do is it’d say that the goal is civilianization. Interestingly enough, in the current legislation the only comments on civilianization are with respect to this one-time special committee, so the legislation would actually have to be amended to allow continuing review.

There’s actually nothing in there which currently states that that’s the intent. It’s certainly the government intent, and they’ve told me that. It was in the legislative original
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intent. But I believe it will basically evaporate, that section, once this special committee is done. So if the special committee believes that this is the right way to go, then it should be put into the legislation if that’s what the government wants.

Obviously, for our future recruitments, they need to be tactical. What’s going to happen now is…. I’m so glad you mentioned this, because I suddenly realized we’re just about to post a new recruitment. The last recruitment was for civilian investigators. I think that had you not mentioned that comment and gotten it into my head, I’m not sure I would have remembered to tell Mr. Larkin that the next recruitment has to allow for either civilian or former police and then state that we will be considering the operational needs of the IIO and the goal towards civilianization in determining whether or not preference will be provided to those who don’t have policing experience.

R. Rosenthal: Yes. So that will be done. I think it was there. I like to hope that it would’ve been done without your question, but it did bring it to the forefront.

What we were able to do was very quickly move towards the civilianization with replacements of the people who had left. But now we’re at the point where we can’t just do that. We can’t just say: “For every person who leaves, a civilian will take over.” I would suggest that if the legislation were to basically say that, look, there’s a long-term goal towards civilianization…. There is a recognition that hiring former police who have served in B.C. over the last five years is a goal, but based upon operational necessity, the CCD can hire people who have policed in B.C. recently — or something along those lines.

What I’m looking for is just the opportunity that while we’re doing this tactically, if we’re thinking tactically, we can also act tactically. I’ve got to tell you, there are some potential candidates for the team director position, former officers, who have the potential of really training our people and putting us in a position of great success for the civilians who are there who can, in fact, do the job. But it’s got to be that now, at this point, we’re going to have to slow it down, and we’re going to have to be extraordinarily tactical in the way we do it because, as we say, competence is utterly essential. We won’t have public confidence if we’re not doing competent investigations.

If I could just follow up on one more thing with that. Once you have that organizational model that you think is going to be effective, how’s it going to look? Will we see more front-facing civilian investigators and more being trained by and advised by the former police officers more in the background? How’s it going to look to the public?

R. Rosenthal: That’s actually my concept. It’s been interesting, because there’s been some challenges when some of the former police would feel a bit miffed by the fact that they’re not being used as a primary investigator; they’re being used in a support function.

One of the things I’ve said to the investigators, the former police, is: “Why are you here? You’ve already had a career in policing. Are you here to do the files? Are you here to help, to say later, ‘I’ve built this organization. Look at that investigator there on television. I trained that person’?” I’m usually able to get: “That’s the long-term goal and interest.” Yes, that’s the ultimate goal — having the former police in a real training and advisory capacity in the long term.

K. Corrigan: Thank you for the presentation. I do want to say again, directly, that I appreciate how open you and the IIO have been with regard to some of the challenges related to culture. I’d like, in my question, to relate that to the suggestion that there should be a relaxation of the five-year rule.

I’m concerned, because I look at the Justice Institute report which talks about the real clash between what they describe as a paramilitary zero-tolerance type of approach — which I’m assuming is the police culture, if it’s fair to say that — and the civilian culture. The real clash existed, for example, between the open-door management policy and the going-through-channels policy and that created a feeling of inconsistency and distrust and all sorts of different things. It was a very interesting report.

I have a couple of questions. The first one is: are the four separations recent separations? Then, some of the others that left…? I guess it’s impossible to generalize, but would you say that that has to do with that clash? Are those positions ones that the separations were police, people that came…? I’m asking for generalization, just to get an idea of what’s been going on.

R. Rosenthal: As I reported, the four separations were all former police. I’d like to stand on my general testimony as far as answering any specifics relating to those separations.

R. Rosenthal: I do want to point out, though…. It’s an interesting point — the zero-tolerance concept. One of the best terms I ever heard was in a domestic violence conference. One of the presenters said: “I have zero tolerance for zero-tolerance policies.” It’s something I agree with. They generally do not work.

Interestingly enough, though, there will be people who will come in and say: “Rosenthal has issued a zero-
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tolerance policy.” I have been very clear that I’m not willing to accept deception — intentional and deliberate lies during the course of somebody’s business.

It’s actually something that I said when I first got here, at the very beginning, when I was introduced to the province. There were comments made about some conflicts I’d had with the Denver police union when I was the police monitor there, and I said: “I believe that somebody should be presumptively terminated if they intentionally and deliberately lie in testimony or an investigation or what have you.”

I still believe that, and some people could perceive that as having zero tolerance. But again, I talk about presumptive. I was a bit surprised when I saw those comments that there was a belief or that there was, in fact, zero tolerance within the organization. It was not something that I envisioned or that I spoke about. Obviously, it had been created within the organization, so it was something we had to address.

Then finally…. I almost forgot to mention it. I do want to say…. I can’t prove it, but I can tell you that the civilian monitor report would have been initiated regardless of these proceedings.

K. Corrigan: It does. It answers my question, but I have a follow-up that goes along with that.

If the separations were four police officers and if there is an acknowledgment that there is this sort of police versus civilian split that’s been difficult to manage, why would you, then, be suggesting that we need to relax the five-year rule? To me, that heads us, possibly, back in the direction of that split being exacerbated or continued.

R. Rosenthal: That’s a great question, and hopefully…. I think I have a great answer.

R. Rosenthal: The reality is that one of the issues is that police in B.C. who are current have been through the sea change. There are police officers in B.C. who get it, who truly understand what this is about and what needs to be done and how it needs to be done. Some of them may have current professional standards experience, who excel at that kind of work and are maybe not interested in going back out onto the street because they’ve been so good at the work that they’ve done and might be interested in coming over to the IIO.

It really goes to the point of: it’s the person. I do believe that there are people out there who are current officers in B.C. who would do this job wonderfully and be able to train people how to do it wonderfully. But it’s all about hiring the right people.

As I said, you could go and get some former officers — whether they’re five years out, ten years out or whoever — who will be awful doing this job, and you could get some civilians who have no police experience who would be awful doing the job. So the recruitment, the hiring — it’s so essential and so important to get the right people.

We did it fast. At this point we are now trying to do it carefully, methodically and making sure that we’re doing it right.

K. Corrigan: Okay, one more follow-up on that, Mike? And then I have other questions, but I’m sure others will want to ask some.

Okay, just with that response, you partially answered the next question, which is: given that you were the one that hired all these people in the first place, why should we trust you that things are going to work better now?

R. Rosenthal: The idea is because we’ve got experience now. We’ve had the opportunity to see what’s working and what didn’t work. We’ve got the benefit of the JI report. We’ve got the benefit of the SWOT and the WES. We’ve got the benefit of experience. We’ve got the benefit of organizational development.

This is my third start-up. I think I mentioned to the Chair before we began: it never gets any easier. You would think that the more experience you have in doing this…. And this one’s a different start-up than the others that I’ve done, under different circumstances and what have you. But it’s not easy, particularly when there are high public expectations and a demand to get going as quickly as possible.

We’re now maturing, and we have the ability to do better. If the government decides to do another five-year annual legislative review, you’ll have the opportunity to judge how we’ve done on that in the future.

D. Bing: Thank you, Mr. Rosenthal, for your presentation. I just had a couple of questions and a comment.

The first one is regarding police notes. I’m just kind of concerned that on some occasions witness officers would not take any notes — and then, your comment about contemporaneous notes. It seems to me that after every incident, an officer should be taking notes. Of course, there are different expectations for those notes than if they were written after the fact and if there was assistance given.

Also the fact that…. It hasn’t been reported as a problem in B.C., but in Ontario they had a problem with officers getting legal help with writing their notes. Should there be a rule, for example, in B.C. that officers not be given assistance in writing their notes, from legal help? That crossed my mind.
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I think there should be an expectation that officers will write notes after every incident. I think that people do have certain expectations and would understand if they were written on the spot, so to speak, or later on. What do you think of that?

R. Rosenthal: What I would say is…. First, with respect to whether there should be a statutory provision requiring officers to write notes without the assistance of counsel.

I defer a bit to the lawyers on this in that the Canadian Supreme Court has said it. It’s the law of the land. To what effect we need to codify it I just don’t know. But I certainly am operating under the assumption that that is an expectation, and it’s a legal expectation. Again, as I said, I’ve seen no evidence that that’s being done in B.C. or has been done. It just seems to be this thing that happened in Ontario but wasn’t in the B.C. police culture.

With respect to being required to write notes, this is a bit challenging because the different agencies have different policies, and it really is more of a policy issue for the individual agency than it is something that I can mandate. In some agencies what they’re saying is that you are only required to write notes if you were personally involved in the use of force. Others might require it if you witness a use of force. But as far as I know, I believe there’s a disparity in…. Each agency has its own policy in that regard.

Also, one of the challenges is we may look at somebody and say, “We think you’re a witness,” but they didn’t see anything. So in their mind, they’re not a witness. They didn’t see anything. But we interview them as a potential witness. Then the testimony is: “Well yeah, I got there, but it was all done by then, and no, I didn’t see this or that.” We may then say: “Well, wait a second. You may have seen….” There are some things in the aftermath we want to enquire about. So they actually are a witness, but they didn’t think they were.

That’s where it becomes problematic, and to me the solution really is in the policies. It really falls directly under the Police Complaint Commissioner’s jurisdiction and the individual chiefs as to ensuring that their officers are being required to document their involvement, or what they witness, in an appropriate and comprehensive manner — and then the same for the CPC and the RCMP.

For our purposes of subject officers writing notes…. I’ve been involved in oversight for 15 years. I’ve reviewed hundreds of critical incidents involving police. I absolutely believe that it’s necessary that a subject officer write comprehensive notes or be interviewed shortly after an incident. Any time, if I see that that has not happened….

One of the things about our investigations is that sometimes we’ll never know, because we don’t get the compelled statements. If it comes to my attention that that has happened, I will address it with the individual agency. If it then needs to be handled through policy or training or discipline, that becomes the province of that agency and its oversight agency, so it becomes outside of my mandate.

D. Bing: It would seem to me that if an officer was present and didn’t see anything, that would be an appropriate note — that they were there and they didn’t see anything of significance.

R. Rosenthal: That’s a policy issue that I think is beyond my mandate and for others to decide.

D. Bing: Getting on to the next one, I agree that relaxation of the five-year hiring rule would be appropriate. Are you suggesting that it be reduced to zero years?

R. Rosenthal: I would actually like the discretion. I’ve got to tell you, if I got…. The example I had was: there was a person who had been a complaints adjudicator in the RCMP for eight months while in Chilliwack. He had not actually policed in B.C. at all, and I would have liked to be able to consider that person for hiring. If it turns out that the best professional standards investigator in the history of the Vancouver police department wants to come over or is ready to retire, I would like the opportunity to be able to hire that person.

I think the problem is that any time limit you give is going to be arbitrary and capricious. You know, is the person one month away? Is the person eight months away? Do we have a recruitment now that will mean when we hire the person, they’d be five days away?

Why I would really prefer the direction of “it’s preferable that” or “the expectation is that” is so that we know that I’m going to have to justify why I hired this particular person under these circumstances. That’s great, but the ability to really hire the best people for the job to ensure that we can civilianize in the long term in an efficient and competent manner — that’s what I would like to see.

D. Bing: The last point was regarding your comment about coaching. I think that — as you know, being a lawyer — for anyone that goes into a profession, when you graduate, that’s basically the beginning of your learning. That is not the end, when you get that degree. It seems that way to me. The expectation would be that you’re continuously learning throughout your career and that you would take advantage of any opportunities to receive coaching, to use the term, to improve your understanding in the future.

R. Rosenthal: I’ve always been of the belief that any professional who believes they have nothing more to learn should retire.

S. Chandra Herbert (Deputy Chair): I just wanted to follow up on some of the questions. First, one ques-
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tion on the five-year rule — relaxing it. Would it work for the IIO, if there were such a relaxation, to go to the Ministry of Justice to make the case for a relaxation on a case-by-case basis? I know it’s frustrating, but there may be civilian directors less interested in the civilianization of the IIO. There may be concerns. Just to prove, in some sense, that the IIO has gone through the process of trying to find a civilian who’d be able to fulfil the role but can’t.

I believe that there is an intent, and we’ve seen it in the number of civilians that have been hired, to go the route of civilianization. I just know that in terms of public perception, if the IIO had somebody who was a police officer two weeks ago — I know that’s too fast, and things take longer than that — or say a month or two months ago and is all of a sudden an investigator looking into a high-profile case of, let’s say, a police-involved shooting or something like that, we could be back to the ground of people alleging that this is police protecting police, despite a large number of civilians. What’s the backstop to ensure that we’re not all of a sudden going down that road again?

R. Rosenthal: I’d be hesitant to say that it would require ministry approval. One of the things about the statute is it actually makes me, not the Deputy Attorney General, the hiring and firing authority. I know there’s been…. Just with the concerns about independence of the IIO from the ministry, that would simply just be additional fodder in the cannon about a lack of independence.

It’s an interesting question. Again, I’ve always sort of been all about transparency. I might want to think about it as far as maybe requiring the CCD to provide written justification to the ministry as opposed to requesting approval. Again, I’ve always said that if I can’t explain it, then I shouldn’t be doing it.

I would support requiring notification and explanation as opposed to requesting approval.

S. Chandra Herbert (Deputy Chair): A lot of the different Justice Institute reports, the SWOT analysis and others — they all seem to point to a challenge in senior management in some respect. I appreciate that the reports, for example, suggest that…. Well, some employees pointed at one person. Another said, “Well, that person was so effective,” and there was no way you could survive without that person. A real conflict in terms of who is responsible and who might be to blame for challenges. Maybe it goes to the conflict between police and civilian, public service and otherwise, young versus old. There’s a whole range of reasons.

I appreciated that some of the former police suggested that civilians couldn’t do the work. Some of the civilians were suggesting police couldn’t do the work, and so forth. It’s a difficult brew to manage.

One thing that does reflect, though, is a challenge in management. You certainly were upfront with us about the challenges you were dealing with. What I haven’t heard, though, is a reflection on your own part about things that you could do differently. In the end, the buck stops with you, despite what people might point here, there or otherwise. It stops with you. I just wondered if you had any personal reflections on things that you need to do differently.

We’ve heard about the organizational changes, and I think that certainly has helped point to what the IIO needs to do to better the situation. But are there things that you as the chief civilian director could be doing better with your employees, with your management, etc., to build more faith, to build more confidence in the leadership of your organization?

R. Rosenthal: The problem, of course, is…. This could be a fairly lengthy answer, so I’ll try and keep it short.

But really, what it comes down to is that we each come into a job with a certain tool belt, and the tools that we use that have been effective in the past are the ones that we tend to rely on. Then, if they don’t work, the tendency is sometimes to keep on pushing with that tool, hoping that it’s going to work.

It happens in policing too, where the officer gets fixated on this one tool. Everyone is looking and saying: “Stop using that tool. Use another one, and maybe you’ll actually achieve a different result.”

It happens in managing too. Communication is certainly an issue — how to communicate. Learning individuals and how they react…. Some people react differently to different forms of communication. So that’s a big part of it, in learning the culture.

Again, there are some things coming from the U.S…. We basically speak the same language. The concepts are similar, but the way you say it is different. Communication becomes a huge part of it, and that’s something that I’ve been really trying to reflect on — how to better communicate with each person individually. But as I said, it’s just this incredible learning process.

What I found, though, is that as we develop, and we develop our staff, one of the big things is also getting our staff to acknowledge that they’re part of the organization. It’s not just about them and about their work-life balance or their use of a vehicle or this or that. It’s about what we can all do to help the organization succeed. The more we can get everyone thinking along those lines, the better we’re going to be able to communicate.

I think one of the challenges we had was…. Certainly, with me and on an executive level we’re thinking corporately. We’ve got other people thinking individually and other people thinking according to the team, and then the communication just doesn’t happen. People are hearing things. You say one thing, and they’re hearing something completely different.

Working with the organizational development experts has been absolutely an incredible opportunity, and
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the same thing working with the coaches and the teams.

K. Corrigan: I have a number of questions, so I’ll start asking. If somebody else wants to ask, I’ll take a break. How’s that?

K. Corrigan: Okay. I wanted to go back to the standard for charges, the standard for referrals to Crown counsel. When you were originally talking about it today you said that the standard is that there “may be.” Can we just clarify what…? Is it that there may be criminal charges? I think that’s the way you used the word “may,” but what is the standard?

R. Rosenthal: Right. The standard is if I can consider that an officer may have committed an offence, I am required to send it to Crown. The way I’ve interpreted that is, in essence, if I cannot exonerate an officer, if I cannot prove that the officer did not commit an offence, I must refer to Crown.

What I’m hoping for is a middle ground where I can use some reason, logic and common sense to the point that if there’s no reasonable chance of a criminal conviction or even of a criminal charge according to the Crown’s charging standards, I need not refer it to Crown. But obviously I would then include a public report explaining why.

K. Corrigan: Okay, so a couple more questions with regard to that. I’m just wondering whether it may be your interpretation of the word “may,” because you followed that with saying a few times that there were files where you said that there was no way in the world there was going to be a charge. You knew it.

I’m finding it difficult to reconcile what you say the standard is and your interpretation that there’s no way in the world. It seems to me that if there’s no way in the world there’s going to be a charge, the standard of “may be a charge” is not going to be reached.

R. Rosenthal: No. Remember that in our society guilty people go free. The idea is that Crown counsel may look at a case and think: “That officer may have committed an offence, but I can’t prove it. Therefore, we’re not going to lay charges.” We’re engendered so that we desperately try to avoid convicting an innocent person. As a result, people who may have committed offences go free because we’re trying to protect the innocent. It’s a similar type of thing in this circumstance.

K. Corrigan: You’re talking not about whether or not the crime occurred but whether or not there is evidence of the crime having occurred.

R. Rosenthal: Exactly. I’m saying yes. It is true that if we go to that standard, there may be cases where I clear an officer. I say that there’s no reasonable possibility of a criminal charge. That officer may have committed a criminal act, but it can’t be proven.

K. Corrigan: If that’s the issue that you’re talking about, then…. You’re talking about cases where that officer — we’re not talking about balance of probabilities — may have committed a criminal act, but the evidence is not there. Do you not think in some ways, when we’re looking at an organization such as this that relies so completely on public trust and credibility, that it’s better, even though you may send too many cases there or cases that charges will not arise from…?

If you think there’s a chance that that crime may have been committed by that officer, isn’t it better for the Crown counsel, rather than you as the investigative body, to make that decision?

R. Rosenthal: That’s why I’m suggesting the middle ground. Right now what happens is that the other provinces have basically taken a much more extreme point — the Alberta ASIRT, Ontario SIU, Nova Scotia, and I think Manitoba’s going to do the same — where the case is only referred to Crown if the chief of the agency basically lays charges.

What I’m suggesting is that if it were over here, where you either lay charges or you don’t send it to Crown, or you’re recommending charges like the police are doing, I don’t think that my standards should be the same as the police. The police have a very high standard. You are recommending charges; you believe that there is a reasonable probability of conviction. I don’t think we should go that far.

At the same time, I think we’re too far on the other side such that there is harm. Crown has resources that they have to use to review these files that frankly could be better utilized elsewhere. There is stress on the officers who are sent over who don’t know what’s going to happen. There are expectations from affected people.

What I’m suggesting is that because of the harm of over-referring, but given there’s harm in under-referring, we find that middle ground. Instead of referring one-third of the files, perhaps I’m referring one-sixth of the files. It’s an extra workload for me.

It’s actually much easier for me to refer a file to Crown than not to. I don’t have to write a public report. I just send it to Crown, and then they have to do all the work. But I’m also very cognizant of the fact that if I’m sending too many files to Crown, it’s going to result in timeliness issues and resource issues for Crown that could impact my organization as well, and the public. I shouldn’t be speaking for Crown, but that’s at least my perception of it.

K. Corrigan: Can I just ask: have you had feedback
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from Crown counsel that says that this is ridiculous — as a generalization, not talking about any specific case?

R. Rosenthal: As much as I’d like to answer that question, I don’t think it’s appropriate for me to do so. I’m almost afraid I’ve already gone too far, and please don’t take my comments as reflecting the comments of Crown.

The other part of that was that you said that you were not required, but have produced public reports in cases where there is no referral. If there was going to be a change in that standard which would result in less referrals, would it behoove this committee to recommend, then, that there be a requirement for public reports, as opposed to discretion as to whether to…?

R. Rosenthal: The reality is that I could be replaced by someone else in two years. I could be replaced by someone else in seven years. You could get someone else who doesn’t believe like I do. I would have no problem with it because I’d do it, regardless of whether I’m required to do it or not.

If you think I’m right and it should be done on a regular basis, I think that would be a very appropriate recommendation on your part.

K. Corrigan: I have one more question in this area, and then I have other questions as well.

M. Morris (Chair): You can ask the one question in this area, then I’ll turn it over to Darryl.

K. Corrigan: My final question in this area, then, is…. I believe you said that 85 percent of those that are referred to Crown do not result in criminal charges. Is that correct?

R. Rosenthal: At this point. But the numbers are very fluid because of the small number of referrals at this point.

K. Corrigan: Okay. Do you know how that compares with the percentage of police referrals to Crown — what results in charges?

R. Rosenthal: I do not know specifically, but it’s my understanding that they have a much higher prosecution rate. In fact, Mr. Sadlemyer actually has experience in the criminal justice system.

C. Sadlemyer: Yes. My experience as a prosecutor was that when police referred charges to us…. The prosecutor’s standard is twofold. One is a substantial likelihood of conviction. It was far in excess of what the Crown is approving of the recommendations that we send over — closer to 70 percent, I think. I don’t want to be quoted on the numbers, but with Crown, yeah, it’s a much greater approval level. When the police refer charges, they’re already of the mind that charges should proceed.

D. Plecas: Richard, thank you very much for your openness about the whole matter of leadership issues within the organization. I can just picture what a struggle you’re having, especially since the leadership issue is so critical — presumably, when you include supervisors in that — to the ability to move towards civilianization faster.

Some people might say that it won’t be enough to have mentors, as we have throughout governments across the country and other organizations, where there are people who mentor leaders in one fashion or another. The difference here is that we’re not starting — it would seem, given from these reports — with people who are good leaders. There is some research which tells us that competencies amongst leaders is one thing, but it’s a lot more than that, and some people just don’t have it.

I’m just wondering if it may be more…. I’m sure you’ve considered this anyway, that rather than think in terms of having mentors there — like you say, everybody can use a mentor — if it’s better if those people just left the organization.

R. Rosenthal: Frankly, that’s exactly what we’ve been doing. We’ve been trying to determine who well serves the organization and who should move on.

S. Chandra Herbert (Deputy Chair): In this SWOT analysis, one of the threats identified is caseload. “Theme: the IIO caseload is smaller than was initially expected, leaving the organization with both budgetary and human resource surpluses.” I also noted that….

R. Rosenthal: If I could answer that one first, because otherwise it’s hard to keep the notes.

That’s changed. We had four fatal officer-involved shootings in less than three months and the extraordinary resources. I don’t believe there is a single person in the office who would say that today.

S. Chandra Herbert (Deputy Chair): Okay. Well, you answered my question before I had to proceed further.

J. Larkin: That’s true, what’s been said there. We’re fully stretched. We have resources that have got too much workload at the moment, with nowhere else to go with it. So we’ve put some cases almost into static position to do these high-profile cases.

R. Rosenthal: I’m sorry to have interrupted. I just didn’t want to miss that one.

K. Corrigan: I have a few questions. Just to confirm, you said that the protocols now prohibit communication by a witness or a subject officer, or just a subject officer, communicating with any other officer. I just would like a little more information about that.

R. Rosenthal: It’s section 15 of the MOU. That’s that I read it as opposed to I summarize it. Mr. Sadlemyer had it up on his phone just in case. For some reason, I didn’t bring a hard copy of the MOU. Oh, I’ve got it right here.

Section 15.1 of the MOU specifically provides that to “prevent contamination of evidence, officers involved in or present during an incident,” so that includes both subject and witness officers, “which may fall within the jurisdiction of the IIO shall not communicate their accounts or recollections of the incident directly or indirectly to anyone other than an IIO investigator except for communication that’s necessary for….” And then we talk about safety statements and furtherance of a concurrent investigations and things to that effect.

Not only do we have that, but we also have a following section, 15.3, where we state that in addition, “a police service shall take reasonable steps, in consultation with an IIO investigator, to ensure that all involved officers do not discuss an incident with each other before they are interviewed by an IIO investigator.”

So section 15.1 would apply to any person, which would include a lawyer, and then section 15.3 ensures that the police service is responsible to ensure, until we get there, that these officers are not talking amongst themselves.

K. Corrigan: Okay. So that raises a few other questions. First of all, are you confident…? And that applies to the RCMP as well as….

K. Corrigan: Yes. All officers. Right. So you’re confident that that is happening?

R. Rosenthal: Now, that’s a little difficult. Obviously, anything could happen, and we might not know about it. I have seen no evidence of that happening. I think there was one incident, one case, where there was conferral between officers after an incident, and we weren’t happy with it. We thought that there was a chance that it might…. It could certainly be perceived as a violation of that section. We addressed it with that agency, and I have not seen that happen since.

Obviously, it’s very difficult when you’re going out in a rural area. If you’ve only got two or three officers involved in an incident and it takes hours for other people to get there, you’re having to rely on the witness statements that it did not occur and that they followed policy. So I cannot prove it’s not happening, but I’ve seen no evidence that it has on a systemic basis.

K. Corrigan: Then if there ends up being a referral to Crown counsel…. If it ends up becoming a criminal investigation — I think we’ve had some information on this, but I just want to confirm it — their rights then…. For the purposes of a criminal investigation, they haven’t had a chance to talk to their lawyer.

R. Rosenthal: No. No, remember that the subject officer…. What we’re trying to do is….

They can’t talk to anyone until they’re designated. Once they’re designated as a subject officer, they have all the rights of any citizen of Canada. So they have the ability to confer with counsel. They still can’t talk to other officers about it, but we can’t stop a subject officer from having the ability to confer with counsel. We can say that that subject officer should be writing their notes or their report prior to and without consulting with counsel, and that’s based upon the Canadian Supreme Court decision.

K. Corrigan: Right. So then if they’ve written notes, they’re not to confer with…. You don’t know when you start whether or not they’re going to be a subject, right? Whether it’s going to be….

R. Rosenthal: Sometimes they know — for example, if they’ve shot somebody and killed them. It doesn’t take us coming in to designate them as a subject officer for them to realize that they’re a subject officer. Frankly, under a circumstance like that, even if it takes us a while to get up there and formally designate them, they know it. They know they’re not allowed to talk to any other officers.

But if they want to confer with counsel, we’re not going to stop them as long as they have done their…. Again, it’s the RCMP or the employing agency’s responsibility to ensure that they’ve done their notes and they’ve written their reports as required prior to any consultation with counsel.

K. Corrigan: Then if it does become a criminal investigation and then there are charges, what you said was that those notes that they are required to do…. You do not compel them because it’s going to compromise the criminal justice process.

R. Rosenthal: You’re very close. Actually, they’re compelled notes. The agency requires that they do it. Therefore, they cannot be used against the officer. I do not consider those notes or reports or anything to that effect when I make my referral to Crown.

Now, Crown then has to decide whether or not they will look at those notes to determine if they believe that there might be a defence to a prosecution. Crown actually has the ability, if they choose to do so, to get those compelled statements to use, but they can’t use them against the officer. They can use them in favour of the officer.
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As a matter of practice for us, not only are they inadmissible against an officer, but anything you learn from them is inadmissible. For example, if you were to read the notes and they were to say…. I’m trying to come up with an example. If they were to come up with something that leads you to evidence that would incriminate them, that becomes inadmissible as well. So we do not consider those in our investigation because then it could impact on the ability to prosecute the officer for the crime.

It’s just me now? Okay, I’ll keep going until you tell me to stop or until I’m finished.

I wanted to ask a couple of questions about the revisions to training. When somebody is now hired as a civilian or as, I guess, a former police officer even, then you would hire them; they would go on the payroll. Is that correct?

K. Corrigan: So they would be on the payroll, and they would receive…. You’re making a change at this point to have somebody come in. They would work in the office for a while and then go to the Justice Institute for three months?

K. Corrigan: Okay, so that’s happening now. And then when they come in, are they actually being sent out in the field? Or what are they doing?

J. Larkin: We’ve developed a three-week induction package, which gets the people into the culture of the office, which you’ve all read about and the challenges around that. Then in weeks 2 and 3 we move into exemplars of the type of work they’ll be being exposed to in terms of designating police officers, scene management and interviews, which we’ve been doing this week with the people.

Then we talk them through court processes, coroner’s court processes. Clint and his team have been dealing with them around legal disclosure and areas like that.

They’re getting some real, acute awareness of a) what this office is about and what the culture of this office is and b) the purpose of the work and the principles and the best practices that we’re trying to implement around this work. Then c) is how it practically comes together.

Then they’ll be going out onto their teams where they’ll be working with a mentor-investigator, who is an experienced investigator who is proven in doing the work, and their team director will be their mentor-supervisor. So they’re under scrutiny, basically, in terms of: are they the right fit for the office as an individual, in terms of their competencies, confidence and skill set?

Then they will be going off to the Justice Institute, and we’re going to spend a lot more time with them, as well, to tailor and bespoke requirements of the modules they do there that fits the role of the independent investigations office. I think in the past it’s been too much “Make it fit” rather than bespoke it to what the role is, what skill set is required and the areas of experience that people need, really.

Then they will come back into the office again and work again into their team with their mentors and their mentor-supervisors. The dynamic then will be: “Here’s a bit more responsibility. Here’s some stuff that you’ve got to start making decisions around. Here are some cases that you’ve got to start taking a form of a lead on, with loads of support around it.”

Then they go off to the Justice Institute again for their next transfer training. And when they come back from that, they should be taking a caseload. Then they should be people we should say, “You’re competent to do investigations,” but still with support, training and in-house workshops to make sure that the skill set is correct, the culture is correct, the attributes that we want in the office are there.

So it’s almost like a constant mentoring there. Rather than saying, “Here you are. You’re employed. Get on and do it,” it’s, “Here you are. You’re employed. Here’s some support. Here’s some training. Here’s some development. And here are really clear expectations around you as well,” which I think is the bit that’s been missing in the past, hence what you’ve been reading about the past.

The stats we got on people leaving — does that include people that might come in, go through the process to some degree and then say: “No, this is not for me”? I mean, how much of that do you have, and is that reflected in these stats?

R. Rosenthal: It’s not. This is based upon the hiring of a new training manager, who really has just improved our training regimen dramatically. So obviously, one of the things we’re trying to do — and I think John inferred — is actually use the probationary period to determine whether somebody is a fit, which is very challenging in the public service, but also to really provide them with the foundation they need so they understand their role, the goals, the processes, everything that the organizational development consultants tell us cause 98 percent of the conflict in an organization.
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We’re trying to learn from the challenges we’ve had at the beginning to put together a program so that there will actually even be self-reflection, where they’ll realize, by the time we’re done with this training, whether they’re the right fit for the organization or not. Again, we’re also trying to put into the recruitment process a new process so that we can better identify who has the abilities to succeed than, necessarily, we would have been able to do at the beginning.

K. Corrigan: Can I just ask one final question on this, Mike, then? I would love to ask several, but I will ask.

It sounds like it’s a good plan. It sounds like you’ve made real improvements. So in the past, or up till this point, what percentage of the people that were hired made it through the probationary period? And is this new approach partly to, frankly, weed out people who aren’t going to fit so that you don’t have the problems in the culture later?

R. Rosenthal: I’m actually trying to…. I’m a little hesitant. I don’t think I can answer that question specifically because it’s just too specific as to how many have not made it through probation.

R. Rosenthal: Yeah. I think in general, though, the committee has said that whatever we provide can’t necessarily be kept confidential. So if it’s confidential personnel information, I think we’d just have to work that out.

M. Morris (Chair): Right. I think because we’re dealing with such small numbers here, it could compromise, probably, some of your personnel issues.

R. Rosenthal: The general comment is yes. What we’re looking to try and do is evaluate and identify early on whether a person is a good fit or not. I will still suggest that with the six-month probationary period and the fact that it cannot be extended and that…. Even in the probationary period, if you want to let somebody go, you still have to do letters of expectations and workplans. It’s much harder to make that work for a professional than it is, necessarily, for somebody who’s doing routine work that can be easily evaluated immediately.

One of the problems that we’ve got is that you send somebody out to a scene…. It could be weeks before you realize that there was a problem. They’re dealing with it on their own, or somebody has seen it but has not reported in to you. So one of the challenges we have is, in some of these positions, it may be six months or a year before we realize: “Oh, wait. There are some real problems here that we weren’t aware of.”

I’m hesitant to say that we’re going to be able to use the probationary period effectively in separating people who don’t belong. But I think with the new training protocols and recruitment protocols, we’re reducing the risk of bringing in people who wouldn’t be a good fit, and we are obtaining and giving enough information that we have a better ability to identify those, early on, who may not fit within our needs. But because of the six-month limit and the nature of the business, it will always continue to be a challenge.

S. Chandra Herbert (Deputy Chair): I just have one final one. I wanted to ask if you could explain a little bit more about the affected-persons staff member. Justice had discussed work in the Downtown Eastside potentially and others. What does that look like?

R. Rosenthal: What we have…. It’s an interesting question. The affected-person manager is assigned to the public accountability team. One of the reasons for that is to try and sort of keep it separate and independent from the investigations team.

Now, a negative on that is…. Just the fact that they’re separate units reporting to separate people creates a silo effect of sorts. It has been sometimes a challenge to ensure that the investigations section or directorate, as John refers to it, is adequately using the resources of the affected person.

I did have one incident where I was very unhappy because the affected-person manager was not notified for about two hours after the investigative team was, and then the involved agency ended up doing the death notification, and we should have done it. It’s one thing we’re going to be looking at when we bring in our chief administrative officer, as to what the best place is for this manager.

What it looks like — and the way it should work and does work in general — is the affected-person manager is notified immediately. There’s a determination made as to whether or not…. Sometimes we can’t do death notifications in person. If somebody is out of province, we may have to rely on a police agency there — or if we’re just not in a place to do it. But certainly within the Lower Mainland we’ve done a number of death notifications, where our person goes out so that the involved agency doesn’t have to send out their people to say, “We killed your son” or “One of my officers killed your son or daughter,” or this or that.

It also allows the affected-persons manager to establish a relationship with the affected family to make sure they understand early on who we are, what we do, why we’re here and what our processes are, and then to try and en-
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sure that that family gets referred to the resources. We can’t provide counselling services. We can’t provide the resources, but we can, through our knowledge of what resources are out there, refer people over to where they need to go.

It’s worked really effectively so far. There have, obviously, been some bumps in the road, as there always will be, but we’ve got a dedicated person to do it. Now what we’re doing…. Again, when the CAO comes into place, we’re going to be in a much better position to have the affected-persons manager and the executive director of public accountability get out and do the proactive outreach.

We’ve been doing it, but it’s not really yet systemic because, again, the way we’re organized right now, we just don’t have the resources. It’s one of the reasons I’m really looking forward to getting the chief administrative officer in place, but that’s going to take several months. We’re still recruiting, and it will take time to do that.

M. Morris (Chair): Great. Well, thank you very much. I very much appreciate you folks coming in. Some good information here today, so I appreciate that very much.

We’re going to take a recess, and then we’ll come back here because we still have a bunch of work to do.

M. Morris (Chair): We’re reconvening here after a very brief recess. I hope everybody enjoyed their lunch.

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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)
	Wm. Scott Hamilton (Delta North BC Liberal)
	Dr. Darryl Plecas (Abbotsford South BC Liberal)
	Jackie Tegart (Fraser-Nicola BC Liberal)
Clerk:	Susan Sourial

REPORT OF PROCEEDINGS(Hansard)

SPECIAL COMMITTEE TO REVIEW THE INDEPENDENT INVESTIGATIONS OFFICE

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO
REVIEW THE INDEPENDENT INVESTIGATIONS OFFICE