When Ontario’s Attorney General proposed new policing legislation earlier this week, the message was clear: officers are “everyday heroes” who have the government’s unwavering support.
“Our police deserve our respect,” said Caroline Mulroney at an announcement at Halton Regional Police Service headquarters, unveiling the Doug Ford government’s proposed plans to “fix” policing laws brought in under the previous government less than a year ago.
Mulroney was backed up by Sylvia Jones, the minister of community safety and correctional services, who said the Liberals’ omnibus policing legislation — known as the Safer Ontario Act, or Bill 175 — was a “disaster” and the “most anti-police legislation in Canadian history.”
But hours later once the hefty 363-page legislation landed at Queen’s Park, it became evident the proposed legislation isn’t a complete rewrite of the previous government’s laws, which when passed in March were hailed as “historic” for strengthening police oversight.
Some key parts are, in fact, identical.
Below, a look at five major policing issues, what changes in the PC’s proposed legislation, dubbed the Comprehensive Ontario Police Services (COPS) Act, and why it matters.
What it is: Right now, police are expected to notify the SIU whenever it’s reasonable the watchdog’s mandate could be invoked: namely, when someone has died, been injured, or alleges they were sexually assaulted during any encounter with police. If there’s doubt, police are expected to err on the side of caution and let the SIU decide whether the threshold for an investigation has been met.
Has it changed from the Liberals’ bill? Yes, though more in the spirit of the legislation’s interpretation. Mulroney specified that police services will no longer be expected to call the SIU for certain kinds of deaths — like when officers are present for a suicide, or when someone dies of a heart attack in their presence — provided its reasonably clear police conduct was not a contributing factor.
The intent, Mulroney said, is to spare officers a lengthy and stressful investigation into how they tried to save a life, and free up the SIU’s time and resources to focus on cases core to its mandate. In cases such as deaths and injuries caused by use of force, or allegations of sexual assault, notification of the SIU will still be mandatory.
When the watchdog probes cases of an officer unsuccessfully attempting to save a life, “he or she is treated like a suspect,” Mulroney said, and “this is not what the SIU should be doing.”
Why it matters: The issue has been a thorny one between police and the watchdog, most recently over to the growing number of officers carrying naloxone, an antidote to opioid overdoses — yet another instance where an officer may fail at saving a life, then become the subject of an SIU probe. But the debate dates back more than two decades, and in 1998 the disputes prompted a review of by former Ontario Superior Court judge George Adams.
“The issue of notification must be treated more like that of calling an ambulance — when in doubt, call,” he concluded.
Adams acknowledged the approach would result in unnecessary calls to the SIU, but he said the public would have more confidence in a decision not to investigate if it was made by an independent body. And while the SIU has the reputation amongst many police services for unfathomably long investigations, it does have the ability to examine an incident and decide not to pursue a full-fledged probe — a process called “closed by memo”. This allows the watchdog to at first scrutinize a death, injury or allegation, then decide no probe is needed. This has occurred, for example, in deaths involving an officer administering naloxone. On average, those investigations have been terminated in less than one month.
The SIU can also quickly decide not to investigate — as recently happened in the case of Roopesh Rajkumar, the father alleged to have killed his 11-year-old daughter, Riya, after it was discovered he had suffered a self-inflicted gunshot wound before OPP officers arrested him (he later died). Under the proposed legislation, it’s likely the watchdog will no longer be called.
Though welcomed by police associations this week, the change presents a slippery slope, says Kingsley Gilliam, a founding member of the Black Action Defence Committee (BADC), whose advocacy in the 1980s was a catalyst for the creation of the SIU. The group protested in the streets precisely because they did not want police making the determination on when an investigation was warranted.
“Which police officer is going to squeal on his partner to say that he committed a criminal act?” he asked.
What it is: Determining when Ontario’s police chiefs can suspend an officer without pay when he or she is facing criminal charges or serious misconduct allegations.
Ontario is the only province in Canada that requires, by law, that an officer must be paid while suspended unless they are sentenced to jail time.
Has it changed from the Liberals’ bill? No. Similar to Bill 175, the proposed COPS Act would allow for a few more circumstances in which an officer might be suspended without pay, including for convictions for an offence, even if it’s under appeal, or when an officer is charged with certain serious offences, to be determined in future regulations.
Why it matters: The ability for chiefs to suspend more officers without pay has been called upon for years, foremost by the Ontario Association of Chiefs of Police (OACP). The province’s strict stance is widely perceived as both a waste of tax money and, too often, an embarrassment.
A few high-profile cases have exposed how officers facing serious allegations have continued to collect a large salary for years. In 2015, a Waterloo Regional Police officer made headlines with a mocking email in which he thanked his service for the perks of his three-year paid suspension — a “dream come true” which included golf, travel and the ability to take a firefighter course. In another case, former Toronto Police Const. Ioan Floria was paid while suspended for 11 years before he was fired last year.
Jeff McGuire, executive director of the OACP, said earlier this week that police chiefs did not see what they wanted in the proposed legislation.
“It’s not something we relish or look forward to doing,” McGuire said, “but as the managers of the service there are times when, in our opinion, we should have the authority to suspend without pay. And it is very limited right now.”
What it is: Requiring that the SIU provide greater details about its decisions to not lay any charges against the police.
This would ideally come in the form of a publicly available report, complete with relevant photos, videos, a narrative of the incident and detailed account of how the SIU came to its decision.
Has this changed from the Liberals’ bill? No. This is was a central tenet of the Liberals’ Safer Ontario Act, and its virtually ‘copy-pasted’ into the COPS legislation, though the PC bill does add that “any delays” in the investigation be noted in the required timeline.
Why it matters: Up until the high-profile death of Andrew Loku, a Black mentally ill man killed by Toronto police in 2015, the SIU provided limited explanation of its decisions, via a press release announcing whether an officer would be charged.
In his 2017 review of police oversight in Ontario, Justice Michael Tulloch had a laser-focus on transparency, and one of his key recommendations was that the agency become “more open, candid, and communicative,” including by releasing detailed public reports “in every case in which it does not lay charges.” He noted there was an “overwhelming need for greater transparency.”
The SIU has since adopted a practice of providing far more extensive reports on some cases where no charge is laid, including fatal police use of force. The COPS Act, however, will make this reporting required by law, as the Liberals’ bill would have accomplished.
“I’m pleased they kept it in — I’m surprised they kept it in,” said Sandy Hudson, one of the founding members of Black Lives Matter Toronto, which demanded the release of far more information about Loku’s shooting death and all other SIU investigations.
“We fought a lot for transparency. It’s something that we need in order to actually understand what is happening in our communities,” she said.
She added, however, that the provision of requiring more information is undercut by giving police “far more discretion on when they call the SIU” due to the changes to notification requirements.
What it is: Revamping Ontario’s independent police complaints agency.
Currently, complaints about the police in Ontario can be filed with the Office of the Independent Police Review Director (OIPRD). Established in 2008, the office accepts and screens complaints about police across Ontario, determining whether further investigation is required. If so, the agency either assigns one of its own investigators to the case, or refers it back to the police service in question.
The OIPRD also conducts systemic reviews to tackle larger issues within policing in the province. Late last year, the agency wrapped a major probe into the Thunder Bay Police Service’s handling of cases involving deaths or disappearances of Indigenous people.
Has this changed from the Liberals’ bill? Yes. The PC legislation acts on a Tulloch recommendation to rename the organization, whose unwieldy title and acronym confuse citizens and police alike. Under COPS, the OIPRD would become the Law Enforcement Complaints Agency (LECA), its mandate would expand to include special constables and peace officers, and it would retain the ability to launch systemic investigations.
Similar to how the complaints body works now, the proposed LECA would receive complaints then either investigate in house, or assign a probe to a police service, including the service where the complaint originated. That’s a departure from Bill 175’s proposed “Ontario Policing Complaints Agency” — the Liberals had demanded that, within a five-year period the agency be fully independent, no longer referring complaints out.
Why it matters: As noted in Tulloch’s report, the vast majority of public complaints brought to the OIPRD are referred back to the police service for investigation, which he concluded “erodes public confidence in the complaints process.” During his broad public consultation, the judge found a “deep mistrust of the public complaints process,” and the referral back to police services was “seen as a major impediment to a good-faith and impartial investigation.”
Gilliam, from BADC, had lauded recent efforts to make the complaints system fully independent.
“That’s a retrograde move there,” said of the PC’s proposed complaints body, noting the Liberals’ bill would have meant “some semblance of confidence could be restored.”
“This is a setback,” he said.
What it is: Determining whether the SIU should be allowed to investigate and charge non-police officers.
Currently, the SIU can investigate and charge a civilian, even though its core mandate is to probe the actions of police officers. They can do so if the civilian is involved in alleged criminal activity alongside a police officer. The situation is exceedingly rare, but the watchdog did charge a civilian in 2017: Christian Theriault, who alongside his Toronto police officer brother Michael Theriault, is alleged to have assaulted Dafonte Miller in a high-profile incident in late 2016.
Has this changed from the Liberals’ bill? Yes. Bill 175 had provided for the watchdog to continue to be able to investigate a civilian under certain circumstances. The PC bill removes that power.
“Police would still be able to investigate in such situations, allowing the SIU to concentrate on its core mandate,” according to Ontario government backgrounder.
Why it matters: In the case of the Theriault brothers — who are set to go to trial later this year — the incident was the subject of widespread public outrage, with members of the public and Miller’s lawyer Julian Falconer alleging there had been the “deliberate concealment” of a crime.
That’s because the SIU had not been called in to investigate the circumstances surrounding Miller’s severe injuries, including damage to his eye, following an encounter with the Theriault brothers in Whitby; neither Toronto police, who employ Michael Theriault, nor the Durham Regional Police Service, where the incident occurred, notified the watchdog. As pointed out by Falconer and others, the Theriault brothers’ father was employed at the time in the Toronto police professional standards unit.
Under the proposed PC system, the investigation into Christian Theriault would have instead been taken over by police, which Toronto lawyer Daniel Brown says would not inspire confidence, given the perception of bias in the case. He says though they are uncommon, there may be other instances where the SIU should be allowed to investigate and charge a civilian in order to ensure public confidence in the probe.
“These instances are rare, but given that, why are we so worried about the SIU investigating them?”
Wendy Gillis is a Toronto-based reporter covering crime and policing. Reach her by email at firstname.lastname@example.org or follow her on Twitter: @wendygillis