Complaints Concerning Police Conduct (5:V)

A. Introduction

LSLAP students will often be consulted by clients who are dissatisfied with the level of service given by the police. To assist students in advising such clients, 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://www.pssg.gov.bc.ca/policeservices/iio/index.htm

B. Governing Legislation and Resources

1. Legislation

Police Act, RSBC 1996, c 367.

Royal Canadian Mounted Police Act, RSC 1985, c R-10.

2. Resources

need to add contacts info from p5-19

C. 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 a client 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 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 the client 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 client 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 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 a client 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.

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.

Clients can make complaints about alleged misconduct by municipal police to the police complaint commissioner. The client does 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.

a) 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.

The client 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 Actcomplaints. 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. b)Step 2: A dmissibility 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 vexation, 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. c)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 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. 5-22A 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. d)Step 4: Investigation An investigation into a misconduct complaint is usually conducted by the originating department’ s Professional Standards Section. The Commissioner may, ifthe 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. e)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 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 5-23and educate officers rather than measures intended to blame and punish. Unless the Police Complaints Commissioner orders a public hearing, the resolution is final. f)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 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. For further information, please see: http://www.opcc.bc.ca. g)Public HearingThe 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.

p. 5-18