Complaints Concerning Police Conduct (5:V)

A. Introduction

Individuals may be dissatisfied with the level of service given by the police. The following section outlines some of the informal and statutory procedures governing citizen complaints against police officers.

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://www2.gov.bc.ca/gov/content/justice/criminal-justice/policing-in-bc/complaints-against-police
http://iiobc.ca/

Complaints Against a Member of a Municipal Police Force

1. General Information

Filing a police complaint against a municipal police officer is different from filing a lawsuit against a municipal police officer. Generally speaking, complaints against a municipal police officer can only lead to the officer being disciplined, and do not compensate an individual for any loss they have suffered. Filing a lawsuit against the police in civil court can lead to compensation if a person’s rights were violated, but does not necessarily lead to the officer being disciplined. Parallel actions can be launched if an individual desires both compensation and disciplinary consequences for the officer involved in the incident.

The Police Act sets out a framework for dealing with public complaints about municipal police forces in BC. The Office of the Police Complaints Commissioner (OPCC) was created as a body independent from all municipal police forces and government ministries. Complaints continue to be investigated by police departments, but the Police Complaints Commissioner monitors how police departments investigate and conclude complaints throughout all the municipal police areas. The process is outlined below. For further information and a more detailed description of the complaint process, please refer to the OPCC website at www.opcc.bc.ca, or see Part 11 of the Police Act.

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 within 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 V.D.2.

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

NOTE: Based on recommendations made in the February 2007 Report on the Review of the Police Complaint Process in BC by Josiah Wood, the Police Act was amended and the new Police Act came into force on March 31, 2010. The OPCC website now provides an online complaint form to make the filing of complaints easier.

2. The Complaint Process

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, which governs policing standards for every police officer in BC regardless of department.

Additionally, each municipal police department will have their own policies regarding appropriate conduct by their police officers. Some departments, such as the Vancouver Police Department (VPD) will have their policies available online. The VPD’s Regulations and Procedure Manual and other policies can be found online at the following link: http://vancouver.ca/police/about/major-policies-initiatives/index.html.

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.

Step 1: Making a Complaint

There are two types of complaints: registered and non-registered. When someone submits a registered complaint, they will be kept informed about the investigation and its outcome, and they have a right to appeal the result. By contrast, someone submitting a non-registered complaint does not participate any further in the process and cannot appeal the outcome.

An individual can register a complaint by submitting it either directly to the OPCC or to an on-duty police member at the station who is assigned to receive Police Act complaints. A non-registered complaint can be submitted orally to any on-duty member in the station or on the road.

Both types of complaints can be made through the online complaint form on the OPCC website.

Step 2: Admissibility

Before investigating a complaint, the Commissioner must first determine whether it is admissible. A complaint is admissible if it is made within 12 months of the incident, is not frivolous or vexatious, and contains at least one allegation that, if proved, would constitute misconduct under section 77 of the Police Act. Complainants will be contacted to tell them whether their complaint is admissible or not. The Commissioner’s determination of admissibility cannot be appealed.

Once the Commissioner determines a complaint is admissible, they will send a notice of admissibility to the complainant and to the chief constable of the department involved. The chief constable must notify the member or former member of the complaint that has been made against him or her, appoint an investigator and, depending on the circumstances of the misconduct alleged, determine whether the matter is suitable for informal resolution.

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.

Step 3: Informal Resolution or Mediation

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 the agreement by notifying the relevant discipline authority or the Commissioner in writing.

If a complainant strongly objects to his or her complaint being informally resolved, and would prefer it be investigated immediately, he or she should let the OPCC know and provide reasons. Common reasons include fear of intimidation by the officer, the wish to have it formally investigated and substantiated, and a lack of time to participate in an informal process due to economic or other circumstances. Usually this objection is sufficient to move the complaint directly to the investigation step.

A complaint may also be resolved by mediation. If the Police Complaint Commissioner agrees, a professional mediator may be appointed to assist the complainant and the officer in resolving the complaint. The mediator is selected by the administrator of the BC Mediator’s Roster and is completely independent from any police department or the OPCC.

Step 4: Investigation

An investigation into a misconduct complaint is usually conducted by the originating department’s Professional Standards Section. The Commissioner may, if the circumstances require, order that an external police agency conduct the investigation. The OPCC will assign the file to an analyst, who will oversee the investigation conducted by the Professional Standards investigator and ensure that the investigation is thorough, impartial, and completed in a timely manner. All investigations must be completed within six months. During the investigation, the complainant and member will be periodically updated about the investigation’s progress. At the conclusion of the investigation, the investigator will submit a final investigation report to the discipline authority, who will then decide whether the allegations are substantiated and, if so, propose corrective or disciplinary measures.

What happens next in the process depends on whether the allegations are substantiated or not.

If the Complaint Is Substantiated

(1) Pre-Hearing Conference

If the discipline authority decides that the allegation of misconduct is substantiated and merits disciplinary or corrective measures, the discipline authority may conduct a confidential prehearing conference with the police officer, if doing so is not contrary to the public interest. At the hearing, the officer has an opportunity to admit the misconduct and accept disciplinary or corrective measures. If the officer and the discipline authority at the prehearing conference agree on disciplinary measures, and the Commissioner gives his or her approval, the matter is considered resolved. This resolution is final and cannot be reviewed by a court on any ground.

(2) Disciplinary Proceeding

If a prehearing conference is not held, or if it does not result in a resolution of each allegation of misconduct against the police officer, the discipline authority must convene a disciplinary proceeding to determine appropriate disciplinary or corrective measures within 40 business days of receiving the final investigation report. However, the discipline authority must cancel this proceeding if the Commissioner arranges a public hearing about the impugned conduct.

The complainant must receive at least 15 days’ notice of a disciplinary proceeding. The complainant may provide written or oral submissions in advance of the hearing but cannot actually attend the proceeding.

The discipline authority must, if appropriate, choose measures to correct and educate officers rather than measures intended to blame and punish. Unless the Police Complaints Commissioner orders a public hearing, the resolution is final.

If the Complaint Is Not Substantiated

(1) Retired Judge

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 rare to have a retired judge review the file in less serious cases due to limited resources. Note that there is a more realistic chance of success when the commission appoints a retired judge.

For further information, please see: http://www.opcc.bc.ca.

Public Hearing

The Office of the Police Complaint Commissioner (“OPCC”) can order public hearings into matters involving misconduct by municipal police officers in British Columbia. After the investigation into the complaint has concluded, the complainant or the police officer may request a public hearing within 20 business days of receiving notice of the decision, or the OPCC may initiate a public hearing itself if a public hearing is necessary in the public interest. In Florkow v British Columbia (Police Complaint Commissioner), 2013 BCCA 92, the BC Court of Appeal found that under the current Police Act the OPCC can only hold a public hearing after certain stages of the complaint process — after the discipline authority has concluded its investigation, after the retired judge has reviewed the file, or after the disciplinary proceeding.

(1) Test for Ordering Public Hearing

In deciding whether such a hearing is necessary in the public interest, the Police Complaints Commissioner must consider all relevant factors, including:

• the nature and seriousness of the complaint;
• the nature and seriousness of the alleged harm caused by the police officer, including whether the officer’s conduct has undermined public confidence in the police or its disciplinary processes;
• whether a public hearing would assist in ascertaining the truth;
• whether a case can be made that the investigation was flawed, the proposed disciplinary measures are inappropriate, or the discipline authority incorrectly interpreted the law.

After a public hearing takes place, the judge’s decision is communicated to all interested parties. The parties can appeal questions of law, but not questions of fact, to the BC Court of Appeal.

For help writing a letter of complaint against the Police Department, please pick up an informational brochure from:

BC Civil Liberties Association

Address 900 Helmken Street, 2nd Floor Vancouver, BC V6Z 1B3 Phone (604) 687-2919 Fax: (604) 687-3045

C. Complaints Against a Member of the RCMP

NOTE: In December 2014, the Enhancing Royal Canadian Mounted Police Accountability Act, SC 2013, c 18 [ERCMPAA], came into force. This legislation has significantly reformed the RCMP complaint process. The ERCMPAA made amendments to the Royal Canadian Mounted Police Act [RCMPA], which governs complaints against RCMP members.

1. General Information

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 Commission for the RCMP

Online Website E-mail: complaints@crcc-ccetp.gc.ca Address National Intake Office P.O. Box 88689 Surrey, BC V3W 0X1 Phone 1-800-665-6878

2. The Complaint Process

Step 1: Making a Complaint

Individuals can make complaints orally or in writing to the relevant RCMP detachment, to the Commanding Officer of “E” Division, or to the Commission, either in Surrey or at the regional office. The complaint will be acknowledged in writing. A member of the detachment will contact the complainant, and may attempt an informal resolution of the complaint. The most effective method is generally to send a written complaint to the Commission’s regional office.

Generally, a complaint must be made within one year after the day on which the conduct is alleged to have occurred (RCMPA s 45.3(5)). However, the Commission may extend the time limit for making a complaint if the Commission is of the opinion that there are good reasons for doing so and that it is not contrary to the public interest (s 45.3(6)).

Step 2: Informal Resolution

If no attempt is made to resolve the complaint informally, or if the attempt is unsuccessful, a formal investigation of the complaint will be carried out. The complainant must be informed in writing of the results of the investigation.

NOTE: Under section 45.53 of the RCMPA, the RCMP may refuse to investigate the complaint. If they refuse, the complainant may appeal this decision to the Commission for Public Complaints.

Step 3: Formal Resolution

A complainant who is not satisfied with the results of the investigation may request that the Commission review the handling of the complaint. As a result of this review, the Commission may refuse to conduct a further investigation, or may conduct a public inquiry into the complaint. There is no further appeal from the Commission’s decision.

D. Civil or Criminal Proceedings

Other approaches to dealing with misconduct by the police force are:

1. Asking for a criminal investigation and acting as a witness; or
2. Suing in tort to get compensation for loss.

1. Criminal Proceedings

The Criminal Code [CC] limits the criminal liability of public officers who, in the course of conducting investigations or law enforcement activities, commit acts or omissions that would otherwise constitute offences. Under sections 25.1 to 25.4 of the CC, a public officer would be justified in committing an act or omission, or in directing another person to do so, that would otherwise constitute an offence, so long as the public officer:

• is investigating criminal activity or an offence under an Act of Parliament, or is enforcing an Act of Parliament;
• is designated as a public officer for the purposes of sections 25.1 to 25.4 by the competent authority (the Solicitor General of Canada in the case of RCMP officers; the provincial Minister responsible for policing in the case of police forces constituted under provincial laws); and
• believes on reasonable grounds that committing the act or omission, given the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances.

In deciding whether the officer's act or omission is reasonable and proportional, and therefore justifiable, the courts will look at the nature of the act or omission, the nature of the investigation, and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.

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.

However, these provisions do not permit officers to cause death or bodily harm to another person either intentionally or through criminal negligence, nor do they justify conduct that violates someone’s sexual integrity.

Individuals should consult the Criminal Code (sections 25.1 to 25.4) for further details on the limited criminal liability of public officers.

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.

2. Civil Proceedings

Individuals may be able to sue police officers civilly, even when they have also made a complaint. Section 179 of the BC Police Act specifically states that the complaint proceedings outlined above do not preclude a citizen from taking, or continuing, civil or criminal proceedings against an RCMP officer or a municipal constable for misconduct. Outside of BC, the Supreme Court of Canada ruled in Penner v Niagara (Regional Police Services Board), 2013 SCC 19, that the result of the police complaint process calls for a case-by-case review of the circumstances to determine whether it would be unfair or unjust to prevent further litigation.

Typical actions that are launched against peace officers include tort actions in assault, battery, false imprisonment, or malicious prosecution. This could be helpful to individuals who have been mistreated or suffered monetary loss because of police misconduct. These actions may now be brought in Small Claims Court.

When suing the police, the complainant would usually want to sue both the police officer and the government body responsible for the officer (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.

EXAMPLE: An action brought by a complainant named John Smith could read “John Smith vs City of Vancouver, Constable Jane Doe, and Constable Richard Roe.”

If the complaint is against a municipal police force, special limitation periods apply. The municipality must be informed by notice letter 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 of the incident (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 notice letter 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 notice letter 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 notice letter 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.

NOTE: If a municipal government or Minister of Justice is willing to accept liability on behalf of its officers where liability is proven, they may ask that the individual officers’ names to be removed from the lawsuit. While there may be reasons to keep the individual officers on the lawsuit, if the court finds they were left on unnecessarily, costs may be awarded against the complainant.

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).

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).

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