Bill 46 concerning independent police investigations - A proposal that fails to ensure the independence, impartiality, or credibility of investigations

QUÉBEC CITY, Feb. 27, 2012 /CNW Telbec/ - "For the most part, Bill 46 does not change the procedure in place under the current ministerial policy: a second police force will still be designated to investigate serious incidents involving police officers. The proposed solution—the creation of an independent civilian bureau to oversee investigations, Bureau civil de surveillance des enquêtes indépendantes—fails to ensure the independence, impartiality or credibility of the investigations," explained Raymonde Saint-Germain, the Québec Ombudsperson, in the course of special consultations and public hearings on the bill.

The public oversight bureau proposed in Bill 46 solves nothing:

• Police investigations will continue to be conducted by police officers.
• There is no regulation spelling out the rights and obligations of police officers involved in or witness to incidents, or of police force directors (e.g., prohibition for officers involved to communicate with each other) to ensure consistent enforcement or provide for penal sanctions in the event of noncompliance.
• The bureau will not have sufficient powers to properly fulfill its mandate. Civilian observers will have no authority to communicate with investigators or officers under investigation or to investigate on their own. How will they be able to determine impartiality?
• Should the bureau find evidence of partiality, another police force will be called in to redo the investigation, at the risk of being hampered in its work by evidence contamination due to time or other factors.
• The Bureau would not have the necessary autonomy to act independently.

In addition, the notion of serious injury is not defined, and the scope of application does not extend to investigations of incidents involving injuries caused by electronic stun guns (Tasers).

Ms. Saint-Germain told committee members that "by qualifying the investigations that will be conducted as 'independent' without making significant changes the procedure in effect, the bill only perpetuates a situation that has been cause for concern."

In 2010, the Québec Ombudsman conducted an in-depth review of the investigative procedure in effect and found that it lacked credibility. Today, the Ombudsman concludes that the proposed solution is inadequate on a number of accounts: independence, impartiality, consistent application of formal rules, transparency of the process and results, oversight, and accountability. The Ombudsman reiterates that the only viable and effective solution is to have qualified civilian investigators team with police investigators to conduct the investigations. Alberta, British Columbia, and Nova Scotia have all recently gone this route, as Ontario did several years ago.

In a brief tabled today, the Québec Ombudsperson formulated nine recommendations to improve Bill 46 in the interest of the public and the police (for precise and complete wording, see the brief, starting on page 41):

1. Entrust responsibility for criminal investigations of incidents to an independent entity headed by a civilian director. The entity would be staffed by civilian investigators, including former police officers, as well as civilians trained in criminal law and investigative techniques.
2. Have the director of the independent entity appointed by the National Assembly.
3. Attach the independent entity to the Minister of Justice for administrative purposes.
4. Replace the position of civilian observer with that of civilian investigator endowed with the status of peace officer and full-fledged participant in the investigations.
5. Incorporate a definition of serious injury and include injuries caused by electronic stun guns (Tasers) as well as allegations of sexual assault committed in the exercise of duty.
6. Mandate École nationale de police to provide adequate training to qualified civilian investigators.
7. Regulate the responsibilities, rights, and obligations of the parties involved.
8. Provide for penal sanctions in the event of noncompliance with regulatory obligations.
9. Incorporate a mechanism enabling the director of the independent entity to comment in public on the investigations under way, formulate any recommendations deemed appropriate in the exercise of his/her mandate, and release a summary of the investigation.

In the view of the Québec Ombudsperson, "police officers, who perform a tough job in often difficult conditions, would be the first to benefit from an investigative procedure that inspires public trust and respect." She concluded by calling on legislators to make sure that the proposed solution is an effective one: "Given the constructive contributions from participants at these hearings, I am confident the committee will take the necessary steps to ensure an improved bill is passed in a timely manner. It would be in everyone's best interest."

Québec Ombudsman
Joanne Trudel, Communications Director, 418-644-0510
[email protected]
www.protecteurducitoyen.qc.ca