Difference between revisions of "Complaints Concerning Police Conduct (5:V)"

There are two main categories of police forces in BC: municipal police forces, which are governed by the BC ''Police Act'', RSBC 1996, c 367, and the RCMP, which is governed by the ''Royal Canadian Mounted Police Act'', RSC 1985, c R-10 [RCMPA]. The RCMP is the policing agency in all parts of BC not served by a municipal police force. Their status as the provincial police force is authorized under section 14 of the BC ''Police Act''. Municipal police forces and the RCMP will be dealt with separately, as the complaint process for each is significantly different.

'''NOTE:''' In 2012 the province opened the Independent Investigations Office (“IIO”), an independent body that reviews police incidents of severe bodily harm or death. To begin an investigation, complaints are to be filed with the Police Complaint Commissioner, who forwards it to the IIO. For further information, please see: http://www.pssg.gov.bc.ca/policeservices/iio/index.htm

'''NOTE:''' Filing a police complaint, or waiting for the conclusion of criminal charges, does not extend the limitation period for filing a civil claim.  If an individual wants to start a civil claim, it must be done two years from when the harm was suffered or discovered.  Before beginning a civil claim for police misconduct, the individual must write a letter to the City Clerk’s office relating the time, location, and nature of the alleged misconduct.  This letter must be sent within 60 days of the cause of action (''Vancouver Charter'', SBC 1953, c 55, s 294).  The letter provides the city with notice that a civil action will be filed, and allows a complainant to add the city as a party to the civil action at a later date.  This letter does not start a complaint or a civil action in itself, but is a necessary first step that must be taken before launching a civil claim.  If a letter has been sent to the City Clerk’s Office within 60 days, the limitation date for filing a civil complaint is 2 years after the cause of action.

For a more detailed discussion on launching civil claims against the police see Section III.E.2.  

'''NOTE:''' If an individual is seeking a copy of their police record, they should make this request before filing a complaint. Otherwise they must wait until after the matter has been investigated.   

A member of a municipal police department engages in misconduct when they commit an offence under any provincial or federal act that would render them unfit  to perform their duties or that would discredit the reputation of the municipal police department. For an exhaustive definition of misconduct, see section 77 of the ''Police Act''.

Individuals can make complaints about alleged misconduct by municipal police to the police complaint commissioner. Individuals do not need to have directly   witnessed the misconduct; complaints can be brought on behalf of someone or even by third-party complainants. The complaint must generally be made within  12 months of the misconduct, but if good reasons exist, and it is not contrary to the public interest, the police complaint commissioner can extend that period.  

'''NOTE:''' Complaints about a municipal police department’s policies or about the services it provides, rather than about a particular incident of misconduct, may still be admissible but should be submitted under a different process. Contact the OPCC office directly about these complaints.   

A complaint may be resolved informally at any time before or during an investigation if the matter is suitable and the complainant and the police officer agree in writing to the resolution.  Informal resolution or mediation is a voluntary, confidential process that provides a non-confrontational opportunity for both parties to talk to each other and hear how their actions affected the other.  If a complainant does not want to meet the police officer face to face, a neutral third party or professional mediator can facilitate and help the parties reach an agreement.  Within '''10 business days''' after agreeing to the proposed informal resolution, either party may revoke agreement by notifying the relevant discipline authority or the Commissioner in writing.  

Previously, only a police commissioner would review the file. However, complainants can now request that the Commissioner appoint a retired judge to review  the file and determine whether or not the decision was correct. The complainant must make the request in writing within 10 business days of receiving the discipline authority's decision. It is now common to have a retired judge review the file in less serious cases. Note that there is a more realistic chance of success when the commission appoints a retired judge.  

Though the RCMP functions as provincial police in BC, the complaint process is governed by the federal ''RCMPA''. Under the Act, a Civilian Review and Complaints Commission has been established to monitor complaints against members, to conduct its own investigations into allegations of misconduct, and to hold public inquiries into such allegations where it deems them appropriate. All members of the Commission are civilians.  

During an informal resolution attempt, or a formal investigation, the complainant will likely make oral or written statements. It is unclear whether such statements could be used against the complainant in other proceedings. If a complainant is facing criminal charges or a civil action regarding the same matter, the complainant should get the advice of counsel before making any statements.  

The Commission can only make recommendations to the Commissioner of the RCMP regarding disciplinary action. However, if the Commissioner of the RCMP does not act on these recommendations, the Commissioner must give reasons for not doing so in writing to the Commission. Complaints against the RCMP in BC should be directed to:  

'''Civilian Review and Complaints Comission for the RCMP'''

If the public officer’s act or omission is likely to cause loss or serious damage to property, the public officer would need authorization from a senior law enforcement official who believes on reasonable grounds that the act or omission is reasonable and proportional.  

Typically speaking, the only time a police officer will be charged is either if an internal investigation is launched, or a police complaint is filed and during the course of that investigation charges are recommended.  

When suing the police, the complainant would usually want to sue both the police officer and his or her employer (see ss 11 and 20 of the ''Police Act''). For a municipal police force this is the municipality; for the RCMP it is the Minister of Justice of British Columbia.   

If the complaint is against a municipal police force, ''special limitation periods'' apply. The municipality must be informed by letter of intent  to sue within '''60 days''' ('''NOTE:''' filing a police complaint does '''not''' constitute notifying the municipality), and the notice of  claim should be filed within '''2 years''' (see ''Gringmuth v The Corporation of the District of North Vancouver'', 2002 BCCA 61). The regular Small Claims Court limitation periods apply if you are suing the RCMP or a private security guard.  

'''NOTE:''' Even if a complainant has not sent a letter of  intent  to the municipal government,  the municipal government should still be named as a party. At trial, the claimant can argue they had a reasonable excuse for failing to deliver a letter of intent to the city, and that the municipality has not been prejudiced by the failure to write the letter.

'''NOTE:''' Even if the 60 day limitation period has expired, a complainant should still send a letter of intent to the Clerk. If the municipality was provided with notice shortly after the 60 day period expired, it will be more difficult for them to argue that they were prejudiced by the failure to send the notice letter within 60 days.  

Both municipal police and RCMP officers are partially immune from civil liability under subsection 21(2) of the ''Police Act''. However,  paragraph 21(3)(a) provides that this defence does not apply if the police officer has “been guilty of dishonesty, gross negligence or malicious or wilful misconduct”. In ''Ward v British Columbia'', 2010 SCC 27, it was held that intentional torts do not qualify as wilful misconduct for the purposes of subparagraph 21(3)(a). As a result of this, it is even more important to make sure the case starts within 6 months. Please be sure to read the paragraph about civil proceedings if considering suing the police, because special limitation periods apply.  

For detailed step-by-step information on suing the police (as well as private security guards), please see David Eby & Emily Rix, ''How to Sue the Police and Private Security in Small Claims Court'' (Vancouver: Pivot Legal Society, 2007).