Letter to Alison Redford, Stephen Harper et al re Bill 27: Police Amendment Act 2010

Pasted below is a copy of correspondence sent to Ms. Alison Redford (Alberta Minister of Justice), Stephen Harper (Prime Minister of Canada) et al. The purpose of this letter is to highlight my concerns with respect to Bill 27: The Police Amendment Act 2010.

http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/bills/bill/legislature_27/session_3/20100204_bill-027.pdf

It is important all citizens understand this proposed legislation represents an attempt by the Alberta Government to insulate police from accountability.

In reading the correspondence hereto follow, please understand that any criticisms leveled against police within the letter are not intended to diminish what I otherwise perceive to be outstanding service by the majority of police officers who honorably serve in the line of duty. Comments are directed in response to a small number of incidents where, all things considered, a discrete group of police officers must be held accountable for their actions. It would be highly inappropriate, if not offensive to paint the many good officers protecting the public interest with the same brush as those who do not.

In my opinion, notwithstanding the fact that legitimate citizen complaints against police only involve a small number of incidents, an appropriate system of accountability must nevertheless exist to ensure that the relatively small number of incidents do not increase in frequency.

I encourage all Canadians to speak out against Bill 27 by contacting their local MP or Alderman.

_____________________________________


Alison Redford
Minister of Justice (Alberta)
Alberta Justice, 3rd Floor, Bowker Building
9833 - 109 Street
Edmonton, Alberta
T5K 2E8

Sent via Fax: (780) 422-6621

Sent by Email ministryofjustice@gov.ab.ca

RE: BILL 27: THE POLICE AMENDMENT ACT 2010


I write to you for the purpose of expressing my concerns with respect to Bill 27: Police Amendment Act 2010. I have had the opportunity to review comments offered by the Criminal Trial Lawyers’ Association (CTLA - Edmonton) and entirely agree with their submissions.

That said I am left to wonder about the purpose of the proposed changes; especially in light of the fact that the majority of the amendments in relation to the public complaint process appear not to serve the public interest.

A plain reading of amendments to sections 19, 20, 42.1(1), 43, 45 and 47 suggest that the Alberta Government has tabled legislation creating substantial barriers to a citizen’s ability to complain or maintain a complaint about police misconduct, abuses or excesses. Given the great power bestowed upon police, I see any attempt by the Government to shield law enforcement from public complaint as a troubling step towards a society that does not fit into the notion of what is free, democratic or “Canadian”.

So that my comments hereto follow are properly contextualized, please understand that I start from the proposition police are employed in a position of trust. Given police are equipped with weapons, special equipment, powers to interfere with a citizen’s liberty through detention and arrest along with the authority to exercise tremendous discretion enforcing a seemingly endless sea of laws, there is perhaps no greater fiduciary relationship than that owed by police to the citizens they serve. Perhaps Dixon J. stated it best in Gabrielson v. Hindle, [1987] A.J. No. 1758 (Alta. Q.B.):

The police forces are given a very special niche in our society. They represent us in the protection of our property and our well-being from abuses and ravages of those who commit crime. They are given special powers and a corresponding standard of conduct is demanded of them. Police powers are to be used intelligently, fairly, and without rancour or favour. There are some rough people wandering around our country and the police must be alert to ensure that the appropriate measure of law enforcement is available to impose the will and requirement of the State upon such persons. It is for this reason that police are permitted to carry arms. They are selected for physical prowess. They are well trained in the use of weapons and martial arts and are provided with the best equipment, including highly and efficient communication systems. But notwithstanding all of these, good police work stems to a very large extent through the use of common sense and from gaining of, and retention of the respect of the public.

So with all privileges go responsibility.

With all the privileges, there must also be accountability.

Section 38(1) of the Police Act, R.S.A. 2000, c. P-17 recognizes the special role of police in our society. According to s. 38, every police officer has the authority, responsibility and duty to encourage and assist the community in preventing crime and to encourage and foster a cooperative relationship between the police and community. This cannot be merely a high sounding objective, it must be meaningful.

I fail to understand how legislation insulating police who abuse their authority from a citizen’s complaint encourages and fosters cooperative relationships between the police and public. The very existence of an open, tolerant and reasonably flexible citizen’s complaint process supplies a valuable safeguard against abuses by those acting in the line of duty. By significantly diminishing the ability of a complainant to lodge and/or maintain a grievance through a principled citizen’s complaint process creates a reasonable apprehension that Government is prepared to protect law enforcement from having its excesses scrutinized by those empowered to defend the public interest.

The irony is Government exists to represent the public interest; yet the Alberta Government tables legislation which arguably offends its public interest mandate.

Why is the Alberta Government interested in insulating police from accountability?

Though the CTLA has succinctly and effectively expressed many of my concerns, I am compelled to add a few additional comments.

Section 20

Section 20 of the Police Amendment Act 2010 stipulates a wide range of circumstances whereby a complaint can be dismissed. An action can be dismissed if a complainant “fails to attend”, “fails to answer questions”, fails to produce an item required; is “unable” to participate, “refuses” to participate, fails to “follow processes” or fails to conduct himself or herself in an appropriate manner.

It does not take a particularly active imagination to envision a plethora of reasonable circumstances to justify any combination of “failures” that may now result in the dismissal of a complaint. By way of example, perhaps the complainant is remanded in custody? Perhaps the complainant has somehow been rendered incapacitated such that he or she cannot participate? What if the complainant has been incapacitated as a result of the actions of police? Perhaps the complainant is out of the country or cannot produce an item required due to an unfortunate event, such as fire, flood, theft or the seizure of materials by police who are the subject of the complaint? Perhaps the complainant has been accused by the police of a crime and must now exercise his or her Constitutional right to silence?

Though I could certainly compose a much more exhaustive list of examples, I think the point is made.

The fact that an action may be dismissed if a complainant fails to conduct himself in an appropriate manner is highly problematic; for there is no rational nexus between the conduct of a complainant in a proceeding and the alleged police conduct underlying the accusation. An unruly complainant may nevertheless have a highly legitimate grievance. To dismiss a justified grievance simply because a complainant somehow offends a Government tribunal, or falls into error adhering to process is antagonistic to the notion that the conduct underlying the complaint ought to be determined on the basis of all available evidence. In criminal law, courts consistently refuse to permit form to rule over substance; yet it appears the Alberta Government is prepared to protect law enforcement in precisely this manner.

Section 42

Section 42.1(1) unreasonably restricts the class of complainant. A complaint may now only be brought by a “person” who was the subject of the conduct complained of, an agent of a person who was the subject of the conduct complained of, or a person who was present at the time of the incident and witnessed the conduct complained of, or a person who was in a personal relationship with the subject of the conduct complained of and suffered loss, damage, distress, danger or inconvenience as a result of the conduct.

This class limitation unduly restricts other persons or organizations acting in the public interest from launching a justified grievance. There are a many reasons why the subject of the conduct complained of may not complain. Perhaps the target of the police conduct is afraid to lodge a complaint? Perhaps the target is accused by police of a crime and due to the practical realities of criminal justice, will not file a grievance out of fear police will place undue pressure on Prosecutors to pursue conviction in an effort to protect themselves from sanction through the citizen’s complaint process? Though I am certain you will dismiss the latter example, my experience suggests police interference is a legitimate concern.

Whatever the case, it is ironic that the legislation effectively prevents a myriad of public officials, who represent the public interest, from lodging a complaint on behalf of the people whom they serve.

By way of example, Government employs Crown Prosecutors to act in the public interest. What if a Prosecutor became aware of information justifying a hearing into police misconduct? By operation of s. 42.1(1), absent authority to act as an agent, Crown’s are incapable of filing a grievance because they do not fit into the class of persons entitled to make a complaint.
Similar logic applies to any number of other groups acting in the public interest. These groups include police and other law enforcement officials, civil liberties organizations, the CTLA, city Alderman, a Mayor or even the Attorney General of Alberta, the Solicitor General of Alberta or the Prime Minister of Canada. That the Prime Minister of Canada or the Minister of Justice of Alberta (or others) would have to obtain specific authorization to act as an agent for an aggrieved party in order to advance a public interest complaint is not only absurd, it is inconsistent withthe function of public office.

In the words of the CTLA, “[t]here is no basis for this [amendment] other than to disenfranchise those who are powerless to complain or afraid or who otherwise will not complain”.

Section 43

Section 43 stipulates that if a complainant refuses or fails to participate in an investigation the commission may dismiss the complaint. Though I appreciate dismissal due to non-participation is permissive, the amendment is nevertheless impractical and arguably draconian in scope. As aforementioned, there may be any number of justified reasons explaining a complainant’s non-participation in the complaint process. What is troubling is that a complaint can be dismissed even where evidence demonstrates the grievance to be justified. This defies both logic and common sense.

Discoverability

It is laudable the amendments address “discoverability”. However, the one-year limitation to complain of police abuse is half the period for almost any other litigant who has a civil grievance. There are many good reasons to extend the limitation for launching a citizen’s complaint against police from one year to two years.

To begin with, any participant in criminal justice understands that straightforward criminal cases routinely take greater than a year to complete. With this in mind, it is also important to recognize that the party complaining of police misconduct may also be an accused in criminal proceedings involving the very same police officers he or she complains of. It is worth highlighting that an accused may have a plethora of legitimate reasons to refrain from lodging his or her complaint until the completion of the criminal proceedings. To reiterate, perhaps the complainant has been instructed by counsel to exercise his or her right to remain silent.

Surely a principled system of accountability will not require an aggrieved party, who is also an accused, to waive his or her Constitutional rights in order to lodge and/or maintain a potentially legitimate complaint against the police?

To continue, perhaps the complainant fears reprisal from the officers complained of, or perhaps the aggrieved party is concerned police will use their connections with the criminal justice system to influence the prosecution of the case? My experience as a former Crown Prosecutor and now full time practicing criminal defence lawyer confirm these are not fictional concerns. The very fact Crown Prosecutors routinely consult with investigators prior to resolving cases underscores the wisdom of delaying making a complaint until after the ultimate conclusion of the case.

All things considered, given the practical realities of criminal justice, a one year limitation may result in grave injustice. Trepidation lodging an immediate complaint out of fear of continued police abuse, reprisal or interference with the prosecution may delay or perhaps even stop a complaint from ever registering. Moreover, a one-year limitation arguably encourages highly abusive conduct – such as laying criminal charges by the offending police for the purpose of silencing the complainant.

A principled system of accountability cannot support these possibilities.

Section 45

Section 45(4) provides that the Chief of Police may dispose of a complaint if he or she is “of the opinion” the grievance is not serious. This is shocking!

Aside from the fact that it appears the Alberta Government is prepared to legislate a form of nepotism, the practical reality is there exists a reasonable apprehension of bias in circumstances where those complained of are essentially authorized to dismiss complaints about themselves. What a citizen or independent tribunal might view as “serious” may differ markedly from what the Police Chief views as serious. In the circumstances, I question whether any aggrieved party could ever feel they received a fair hearing when their complaint was dismissed by the leader of the very group about which they complain.

At the end of the day, I question the Alberta Government’s motive for the amendments. Politically, morally and legally, it is inconsistent to our purportedly free and democratic society to enact laws shielding law enforcement from accountability. This is what Bill 27: The Police Amendment Act 2010 accomplishes.

Though I becoming more inclined to think our legal principles are little more than high sounding, yet empty and meaningless rhetoric, I nevertheless naively believe, as Ritter J stated in R. v. Cornell, [2009] A.J. No. 448 that “Canada is not a Police State”. When my Government proposes brazen laws such as Bill 27: The Police Amendment Act 2010, it becomes increasingly more difficult to hold fast to such naivety.


Sincerely,



David G. Chow
MOLLE ▪ ROULSTON ▪ CHOW
Criminal Defence Lawyers

DGC/dc

Cc: Rob Anders (MP): E-mail: Anders.R@parl.gc.ca and E-mail: RobAnders@telus.net
Cc: Dale Hodges (Alderman): Email: dale.hodges@calgary.ca
Cc: Frank Oberle (Solicitor General and Minister of Public Security): peace.river@assembly.ab.ca

Cc: The Calgary Herald: E-mail: submit@theherald.canwest.com
Cc: The Calgary Sun: E-mail: calnews@calgarysun.com
Cc: The Globe and Mail: Newsroom@globeandmail.com
Cc: Stephen Harper (Prime Minister): E-mail: pm@pm.gc.ca
Cc: Tom Engel (Criminal Trial Lawyers’ Association)
Cc: Michael Bates (Criminal Defence Lawyer)
Cc: Karen B. Molle (Criminal Defence Lawyer)
Cc: Tonii K. Roulston (Criminal Defence Lawyer)
Cc: Deborah Hatch (Criminal Trial Lawyers’ Association)

www.calgary-law.ca