Reasonable Doubt: Police under microscope with B.C. Independent Investigations Office

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Last week, Nancy Seto wrote about lawyers and self-regulation. Self-regulating professions or those with minimal civilian oversight get a lot of flack, and the landscape is changing. The public is accepting less and less self-regulation and new measures are being implemented to monitor insular, highly specialized, and powerful groups. In B.C., the police are the currently under the microscope.

Background for those not up to speed

Robert Dziekanski and Frank Paul are two men whose deaths at the hands of police resulted in civilian inquiries into police decisions and actions. The Braidwood Inquiry and the Davies Commission have fundamentally changed the way we police the police. As a direct result of these two inquiries, the B.C. government is establishing a new office, the Independent Investigations Office (IIO), which is responsible for investigating incidents where a person is grievously injured or killed at the hands of the police.

Until now there was the Office of the Police Complaint Commissioner, Commission for Public Complaints against the RCMP, and investigations by other police detachments. In the case of Jamie Haller, the Williams Lake girl that was punched in the face by a police officer while she was handcuffed, there was an investigation of the Williams Lake RCMP by the Abbottsford Police Department. These mechanisms of investigating deaths and bodily injury, for the most part, do not provide the level of transparency and rigor that the public requires to maintain confidence in our police forces. The alternative, the inquiries and the commissions, are cumbersome, lengthy, and extremely expensive.

So, this is not news. But what exactly is happening with the promised IIO?

The IIO is set to open this year (June 2012); the government is currently recruiting civilians with investigation skills and former RCMP officers or former police officers from outside B.C. that have not served as part of any force for at least five years. The dream is that one day the office will be composed entirely of civilians who have never been a part of any police force.

Understandably, the reason for recruiting former police officers now would be because most civilians will not have the investigatory experience necessary to make this office effective immediately. For the most part, leaving private investigators aside, it is hard to think of a profession or area of work that would engage in investigations similar to that of the police (or perhaps my imagination and experience limit me).

How do we make sure IIO investigations are fair and rigorous?

IIO investigations are subject to monitoring by a person who is not an IIO investigator to assess the integrity of any investigation. This person must swear an oath to impartially and fairly assess any investigation and, judging from the legislation, conducts an audit of an investigation and provides a written report to the chief civilian director.

A new office needs a strong leader. Who will run the IIO?

The IIO is under the control and management of the chief civilian director, who serves for an initial term of five years and may serve for a second term of five years, but no more. The person is responsible for appointing his (because the first chief civilian director is a man) investigating team and the civilian monitors that assess them.

The first IIO chief civilian director will be Richard Rosenthal, an American man, who spearheaded a movement towards establishing independent investigations offices in two other cities. One news article on Rosenthal explains that Rosenthal’s career in monitoring and investigating police was kick started when he was a prosecutor in LA and he uncovered widespread corruption in the Rampart anti-gang taskforce police unit. The Rampart Scandal investigation resulted in a huge investigation and many criminal charges for corrupt police officers. The Rampart Scandal charges came to naught, however, and LA became the defendant in a 140 civil suits resulting in settlements totaling $140 million. In short, it was a disaster.

Needing to leave LA, Rosenthal moved onto Portland and later Denver where he set up offices similar to the IIO here. These offices had some success. It makes a difference when the government and the public supports the mandate of an independent investigations office. In Canadian news articles on the IIO, there seems to be the understanding that the B.C. IIO will take what Rosenthal was doing in Portland and Denver one step further making our IIO a forefront in independent oversight of police. Only time will tell if the IIO can fulfill this expectation, but it seems to be a good step forward right now.

Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.

Comments (5) Add New Comment
glen p robbins
Frankly, I'll wait and see before I get too excited about 'independence'. The independent offices we have aren't that good - and David L's defection from Freedom of Information to BC AG - another example.
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Greg Klein
I wish Richard Rosenthal well, but I wonder if an American was chosen because he can’t practise law here. One of the many weaknesses of B.C.’s Independent Investigations Office is that the IIO can’t lay charges (as the director of Ontario’s Special Investigations Office does). Instead, the IIO will simply forward evidence to Crown attorneys who have been notoriously reluctant to charge police officers. An American who can’t practise law in B.C. might be less likely to push for reform on that matter.
Here’s a list of the IIO’s other shortcomings.
The IIO will not answer to the provincial Ombudsperson, seriously detracting from its transparency.
The IIO’s transparency will be limited to a “monitor” who can review its investigations. But the monitor will be appointed by the IIO director.
The IIO will answer to the attorney general, leaving it open to political interference.
The IIO will come under the authority of B.C.’s Office of the Police Complaint Commissioner, itself a product of police culture. The OPCC will have the power to investigate the IIO.
Police will continue to investigate police accused of “less serious” offences, with a review conducted by the OPCC.
The BC Liberals point out that Thomas Braidwood supports their plan. But between writing his recommendations and endorsing the legislation, Braidwood changed his position radically. This legislation also has the unanimous approval of the NDP, who voted with the BC Liberals. It’s also approved by the B.C. Civil Liberties Association, which publicly congratulated the BC Liberals at least twice.
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Norm Farrell
Last December, I contacted Dan Handelman of portlandcopwatch.org who had these views on British Columbia's first independent police monitor:

"Mr Rosenthal's tenure here was mostly characterized by his efforts to minimize the power and authority of our system's Citizen Review Committee, a 9-member panel whose role includes hearing appealed complaints of police misconduct. Rosenthal helped create the original rules for the CRC, then started rewriting those roles to minimize the citizen body's impact within two months...

More at Northern Insights:

http://northerninsights.blogspot.com/2011/12/investigating-bcs-new-polic...
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Greg Klein
Thanks to Norm Farrell for posting this. It’s important to keep Rosenthal and his new agency under scrutiny. I’ve been cautiously optimistic about his appointment (and might be proven wrong) because I think the job had to go to an outsider. B.C.’s legal establishment is too close to the cop lobby. That includes people like Richard Peck, who represents police officers at the Pickton inquiry and who recommended watered-down charges for the Dziekanski death squad; Stan T. Lowe, who recommended no charges for the Dziekanski death squad and was promptly appointed police complaint commissioner; Dirk Ryneveld, a former police complaint commissioner who has since acted as legal counsel for Saanich police; and Thomas Braidwood, who turned against his own recommendations for police accountability.
Our activist lawyers, like the BCCLA, are too close to the NDP. The NDP has supported every BC Liberal manoeuvre on this issue since I started following it in 2006. Ontario ombudsperson Andre Marin would have been a perfect choice to head the IIO. But he’d probably turn the job down, I think partly because he’d see through the BC Liberal con job. B.C.’s establishment wouldn’t have wanted him anyway.
In just a few days following Rosenthal’s appointment last December, the MSM devoted far more attention to him than they’ve every shown to B.C.’s Office of the Police Complaint Commissioner. The recent, and brief, criticism about the OPCC’s decision on the Alvin Wright shooting was almost unprecedented in the MSM. But we need to know more about who works for the OPCC and how they operate. Much of their work is undertaken in secrecy. And these guys will have the power to investigate the IIO.
The Straight has been almost alone in examining the OPCC. But here’s a rare example of the MSM allowing a critical viewpoint:
http://www.royalcityrecord.com/news/Local+police+case+raises+questions/6...

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Rod McCallum
I have been waiting for 23 years for very illegal misconduct by Victoria police (indictable C.C. offences, including assault causing bodily harm, defamation, torture & attempted murder) to be properly addressed. How much longer do I have to wait? That's already about 1/3 of my life. Such a very prolonged delay in being able to obtain justice (if that is even possible in Canada) is more than outrageous.

I question RCMP participation in the new IIO, since I know they are corrupt. There is a well-established "police brotherhood" (basically gang system), where our federal police cover-up and ignore illegal misconduct by municipal police. (That I could prove in a court of law.) RCMP have had *plenty* of opportunity to look into an issue and their their abysmal failure to do means that now, even some federal cabinet ministers will need to be charged with serious Criminal Code offences, including obstructing justice.

When will the ticking time-bomb finally go off? Hopefully: pretty soon. This year. If Mr Rosenthal has some integrity - and that does remain to be seen - the public will likely see a mushroom cloud rising over Victoria police. That force will have a *serious* problem, if he is a man of integrity. If Mr Rosenthal says that force has done nothing wrong, the public can know he is corrupt and *not* a man of ethics.

It is likely obvious that my faith in such "watchdog" agencies is close to zero, based on long and bitter experience.

I sincerely hope that Mr Rosenthal is a man of integrity with a strong, serious belief in ethics. If he is...it is a long time coming. And I wonder: how many others have been waiting for justice?
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