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Police discipline and investigations.

In fairness to the reader, I must at the outset confess and reveal my bias on the issue of police misconduct and discipline. I am one of those who believes that when it comes to investigating and dealing with allegations of police wrong-doing the present system in Alberta is flawed, and must be replaced with a model which involves investigators who are clearly independent from and unconnected to the individual officers whose conduct and actions lie at the heart of the matter.

Certain aspects of what might loosely be called police discipline most surely can and should properly be left in the hands of the police themselves to address; I am thinking here of such internal rules and regulations as showing up for work on time, keeping one's uniform in proper shape, dealing with members of the public in a professional and reputable manner and similar types of matters. However, when it comes to conduct which might be criminal or otherwise illegal in nature, the public interest requires investigations by persons who are--and who are seen to be--independent and apart from the officers whose activities are subject to scrutiny.

The present system in Alberta is described in the Police Act and its accompanying regulations. In general, responsibility for the investigation of complaints of police misconduct is left to the Chief of Police of the particular department or police agency. The Chief has the duty to oversee the investigation of the complaints being made, and to ultimately decide what should take place once the results of the investigation are known. In almost all cases in Edmonton, at least, investigation of the police actions is conducted by other members of the same department, who are temporarily assigned to the "Internal Affairs" branch of the same agency. Once he receives the report of the investigators, the Chief decides whether criminal or disciplinary charges should be laid against the officer. If criminal charges are recommended, the file will be sent to a Crown Prosecutor for review, and if the prosecutor agrees with the recommendation the formal court process against the officer is commenced.

If the matter is to be dealt with through the internal police disciplinary system, a Chief has a number of options open. Matters judged by him or her to be relatively minor can be dealt with through such informal means as "counselling" the officer involved not to repeat his of her conduct in the future. An "admonishment" and warning may be placed upon the officer's file for a short period. More serious concerns are dealt with in a more formal setting, through the convening of a hearing into the complaint and the police conduct in issue. The Chief of Police will personally conduct the hearing, or he may name another officer to do so on his behalf. At the hearing, witnesses and other evidence may be called and legal arguments advanced. At the end of the proceedings, the tribunal decides whether the officer has indeed acted improperly, and if so, the penalty or sanction to be imposed. Again, the full range of minor penalties is available, along with more serious punishment up to and including removal from the force.

The Law Enforcement Review Board exists to hear appeals from the outcome of internal police disciplinary proceedings. A member of the public who has lodged a complaint may appeal to the Board if he of she is not happy with the outcome of the internal processes, and a police officer of other person against whom a complaint has been lodged may similarly appeal from the results of the disciplinary proceedings which have taken place. The Board is composed of provincial government appointees. The only statutory requirement concerning membership on the Board is that one person must be a lawyer, and the legislation stipulates that he or she will be the Chair of the Board.

While the Law Enforcement Review Board has a number of broad powers to conduct inquiries of various sorts, its main function is to consider appeals from decisions made in the course of the internal police disciplinary processes outlined above. For the most part, the appeal proceedings amount to a new and virtually complete rehearing of the original matter. The Board has the power, after the proceedings have ended, to take various steps including ordering a rehearing of the matter at the initial stages or varying punishment which has been imposed. Where the appeal is from a refusal of a Chief of Police to prosecute a breach of internal police disciplinary rules, the Board may order that such a charge be laid. Where the Board is of the view that a party involved in proceedings before it has acted "in a frivolous of vexatious manner," it may order that individual or person to pay costs to the other side, or to the government of Alberta, or both.

In the recent past, this system has come under increasing public scrutiny and criticism, and the reasons are not difficult to discover. No other sector of society is entrusted with the legal power to conduct investigations of its own members to determine compliance with the criminal and similar laws, and to make decisions about who is prosecuted and who is not. Even the professions--doctors, lawyers, accountants, engineers and so on--do not decide which of their members are to be charged with and prosecuted for committing criminal offences. While the professions govern the conduct of their members in the sense that they oversee and enforce compliance with special roles and requirements applicable only to those individuals, none of the professional disciplinary bodies investigate, charge, and prosecute where criminal conduct is concerned. If I, as a lawyer, do not follow the special rules imposed upon me by the Law Society of Alberta, I may face disciplinary proceedings before the tribunal established under the Legal Professions Act for this purpose. If, however, my conduct is criminal in nature and I abuse my position as a lawyer in order to commit a criminal act, it is the police and not the Law Society, who will decide if I should be charged and prosecuted in court under the terms of the Criminal Code.

In Edmonton, the past few years have seen a number of incidents and episodes that have led the public to become suspicious of the results which occur when the police are permitted to investigate their own members who are thought or alleged to have committed criminal acts. On a number of occasions where individual police officers have acted in ways "which seem to be improper and illegal"--behavior which would land any of the rest of us in court facing prosecution for our wrong-doing--charges have not been laid following investigations conducted by members of the same police department. On one fairly high profile occasion, charges were laid but the prosecution was ultimately dismissed by the court as a result of sub-standard investigation by colleagues of the accused officer. The public's response to many such incidents has been to become increasingly doubtful about the merits of leaving such investigations to be conducted by the police themselves.

There are a number of improvements that could be made to the present system in order to restore the public's confidence in the resolution of issues surrounding police behavior and apparent misconduct. The main change would be to remove responsibility for such investigations and charges from the hands of the police department involved, and place that duty into the hands of an outside agency: either another unrelated police agency, "with no connections to the body or officer being investigated", or to follow the Ontario model and establish a province-wide unit whose sole function is to investigate and prosecute the wrong-doing of police officers anywhere in that jurisdiction.

Removing the task of investigating and dealing with police law-breaking from the hands of the same department itself carries benefits and protections for both the individuals involved and the public at large. Where an investigation has been conducted by a truly independent and impartial body with no connections to the officer(s) whose behaviour is being examined, each of the complainants, the officer, and the public at large, could have confidence in the integrity of the outcome regardless of what that outcome may be. Where no charges are laid against the officer, the public and the complainant would at least have the comfort of knowing that the officer is not simply being shielded by his friends and co-workers. And where charges are laid, the officer accused would similarly know that he or she is not being prosecuted as past of an internal dispute with his or her co-workers, or to protect the public image of the department concerned.

In our society, the police occupy a position of unparalleled authority and power. They alone among us have tremendous legal abilities to intrude into the lives of others, in the most forceful and direct fashion. Most police officers govern themselves according to the highest standards of professional and personal conduct, and society owes them a debt of gratitude. But because of the special powers we entrust to our police, we also have the right and the duty to expect them to scrupulously abide by the same laws they are asked to enforce. We have the right to expect possible or alleged police wrong-doing to be dealt with seriously and with integrity. Adopting a system for the independent and impartial investigation of complaints against the police is essential to maintaining public confidence in the police as a necessary institution in our society and with a central role in the continuation of our democracy and civil peace.

Charles Davison is a lawyer with the firm of Abbey, Hunter, Davison, Spencer in Edmonton, Alberta.
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Title Annotation:Special Report on Police
Author:Davison, Charles
Publication:LawNow
Geographic Code:1CALB
Date:Jun 1, 2004
Words:1617
Previous Article:A cop and a lawyer.
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