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

Before investigating a complaint, the Commissioner must first determine whether it is admissible (''Police Act'' s 82).  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 (''Police Act'' ss 83(1) and (2)).  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 (''Police Act'' s 83(2)).  The chief constable must notify the member or former member of the complaint that has been made against them (''Police Act'' s 83(3)), appoint an investigator and, depending on the circumstances of the misconduct alleged, determine whether the matter is suitable for informal resolution.

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 (''Police Act'' s 157(4)).  

A complaint may also be resolved by mediation (''Police Act'' s 158(1)). 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.  

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 (''Police Act'' s 99(1)).  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.

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 (''Police Act'' s 120(2)).  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 their approval, the matter is considered resolved.  This resolution is final and cannot be reviewed by a court on any ground.  

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 (''Police Act'' s 118(1)).  However, the discipline authority must cancel this proceeding if the Commissioner arranges a public hearing about the impugned conduct (''Police Act'' s 123(3)).   

The complainant must receive at least 15 days’ notice of a disciplinary proceeding (''Police Act'' s 123(1)(c)(i)).  The complainant may provide written or oral submissions in advance of the hearing but cannot actually attend the proceeding.

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 (''Police Act'' s 117(1)). The complainant must make the request in writing within '''10 business days''' of receiving the discipline authority's decision (''Police Act'' s 117(2)). 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.  

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 (''Police Act'' s 136(1)), or the OPCC may initiate a public hearing itself if a public hearing is necessary in the public interest (''Police Act'' s 138(1)(d)).  In ''[https://www.canlii.org/en/bc/bcca/doc/2013/2013bcca92/2013bcca92.html?autocompleteStr=Florkow%20v%20British%20Columbia%20(Police%20Complaint%20Commissioner)%2C%202013%20BCCA%2092&autocompletePos=1 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.

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