Ontario’s police complaints system is taking a “step backwards” with new legislation that will reduce the independence of its investigations, says the departing head of the Office of the Independent Police Review Director.
Gerry McNeilly — who has been the OIPRD director since the watchdog’s creation in 2008 — left his role Friday, the same week Doug Ford’s government passed its Comprehensive Ontario Police Services Act (COPS) governing policing and civilian police oversight.
While the new law includes much-needed changes, McNeilly said it backtracks on a major, positive move the watchdog would have made under the Liberal government’s 2018 policing overhaul: in-house investigation of all complaints by 2023, making their probes fully independent.
Regarding conduct investigations, “one of my concerns with the legislation is that it pushes too much back into the police arena,” McNeilly said in a sit-down interview with the Star during his final week.
“For me, I have to say, it’s a step backwards from where we were going and where we have been.”
The OIPRD — which will be renamed as the Law Enforcement Complaints Agency — investigates individual public complaints about police and conducts systemic reviews on major police issues. A common criticism of the watchdog is that while it screens every complaint it refers the majority of complaints back to the police service in question to conduct an investigation.
In 2017-2018, the OIPRD referred 1,153 complaints back to the same police services, retaining just 119.
Acting on a recommendation made by Ontario Court of Appeal judge Michael Tulloch following his recent review of police oversight, the previous Liberal government passed legislation that required the OIPRD to become within five years the sole body to investigate public conduct complaints. The OIPRD was beginning to work toward that when the Doug Ford government pressed the brakes on the Liberals’ plan.
The newly passed COPS Act instead still allows for the watchdog to send complaints back to the service where they originated.
“With all due respect,” McNeilly said, “I think the police shouldn’t police themselves. I think it’s absolutely necessary to have civilian oversight.”
McNeilly’s departure comes after a whirlwind few months for the watchdog, including the release last week of a major report into the police practice of strip searching. It was the watchdog’s fifth systemic review, each one a resource-intensive endeavour that examines a larger policing issue.
In December, the watchdog released a scathing report into the Thunder Bay Police Service, the result of a two-year investigation that concluded systemic racism exists within the force, impacting how Indigenous deaths are investigated. The report, which called for the reopening of nine sudden death cases due to inadequate investigations, is among the accomplishments McNeilly said he is most proud of.
His departure also caps a period of uncertainty for the organization amid changing government and legislation. Although he knew his term was officially up on March 31, McNeilly said there were backroom conversations suggesting he would be kept on longer as the new government’s police oversight laws took force.
McNeilly was instead taken aback when he was given what he feels was insufficient notice — 30 days — to wrap up and clear out. For “selfish reasons,” he said, “I would have liked to be involved to bring in some of the changes.”
“I would have liked to have been given some time to plan my exit,” McNeilly said. “I would have appreciated some professional courtesy.”
Brian Gray, a spokesperson for the Ministry of the Attorney General, said that in early 2018 the prior government advised McNeilly he would be reappointed until the end of this month.
“As with any organization, regular changes in leadership are healthy and provide the opportunity to bring new perspectives to the role,” Gray said, adding the recruitment process for a new director will be underway shortly.
The watchdog announced Wednesday that Sylvana Capogreco, who has been the OIPRD’s senior counsel and deputy director, will become the interim director effective Monday.
Among the changes McNeilly said he is glad to see in the new legislation is the removal of the distinction between “serious” and “less serious” misconduct, a designation the director had to make when a complaint of wrongdoing was substantiated. In cases deemed “less serious,” the issue was often resolved informally with no disciplinary tribunal.
In October 2016, Matthew Green launched a judicial review of his OIPRD complaint about an unlawful strip search by Toronto police, after the watchdog deemed it “less serious” misconduct, leaving Green unable to know how the officer who ordered the search was punished. He later lost the review and was denied leave to appeal to Ontario’s Court of Appeal.
Under the new legislation, substantiated misconduct is presumed to be serious, McNeilly said.
“That’s very positive, and it’s something I’ve been advocating for,” he said.
McNeilly is also pleased to see the continued ability to conduct systemic reviews, which allow the watchdog to examine an issue more thoroughly than individual complaints. But the agency will need greater resources if it wants to continue to do them well — he regularly felt like he “never had enough.”
He cited a lack of resources as the reason he was unable to conduct a systemic review of police officer mental health that he said he’d do in 2016 following the suicide of a Toronto police officer. Not being able to complete that is “one of my regrets in leaving this job.”
And while he doesn’t want to enforce his own agenda on his successor, McNeilly said he does believe a systemic review should be done into how police investigate sexual assaults. “We had many complaints about that,” he said.
The first systemic review his agency conducted, into Toronto’s 2010 G20 summit, helped establish the newly created watchdog. Though it was a major challenge, McNeilly now sees it as a “big highlight” of his tenure.
The watchdog’s report into the infamous weekend — which saw the largest mass arrest in Canadian peacetime history — concluded police made unlawful arrests, used excessive force and infringed on charter rights.
In the days after the summit, the OIPRD was flooded with 357 complaints.
“Quickly, I didn’t have enough staff. Quickly, we had to get some part-time staff to help,” McNeilly said. “I had never done a systemic review, I didn’t know what it entailed. All I knew was that in addition to the 357 individual complaints, I had to do something else, because this just didn’t go well.”
In the years since the OIPRD was created, he’s seen an overall improvement in relations between his office and police. Officers who were once resentful have become more accepting, he said.
“Most police officers will say ‘we welcome (civilian oversight)’ because it brings some fairness.”
A key part of ensuring all parties experience fairness is working to uphold neutrality, McNeilly said. Because he is a former executive director for Legal Aid Manitoba, and a past chair responsible for establishing the Board of Inquiry for the Ontario Human Rights Tribunal, McNeilly said he could have been perceived as being an advocate.
Early on, he said he realized he had to take off his “advocate hat” and be neutral.
“Whoever comes after me, the one thing that I hope will never change is that that person will maintain neutrality,” he said. “That person will not be pro-police. That person will not be pro-community. That person will not be pro-government. That person will be neutral, independent to carry out his or her duties in accordance with the legislation.”
Wendy Gillis is a Toronto-based reporter covering crime and policing. Reach her by email at email@example.com or follow her on Twitter: @wendygillis