Ottawa police disciplinary hearings moved in-house

Allowing officers to judge their colleagues 'has trouble written all over it,' critic says

The Ottawa Citizen

Friday, May 30, 2008

Andrew Seymour

In a significant and controversial change, senior officers in the Ottawa police will now prosecute and judge their colleagues who run afoul of the rules and regulations that govern the force.

According to Chief Vern White, the department will no longer appoint former police officers from other jurisdictions as hearing officers during disciplinary proceedings against Ottawa officers facing charges under the province's Police Services Act.

That change, however, does not impress two senior Ottawa lawyers who say this is an "ill- conceived" plan that will further erode public confidence in the complaints system and, ultimately, the force.

Senior officers, instead of lawyers, will also be used to prosecute cases where the department is not seeking a penalty of dismissal, Chief White said. More serious cases of misconduct will still be prosecuted by lawyers.

"I think it brings a level of accountability to those involved in the disciplinary process by appearing before their peers," said Chief White. "From my experience ... I have found officers tend to learn more when they go through the process having appeared in front of a peer."

Chief White said it is the same system used by the OPP, RCMP and in Durham, where he used to be chief, among other police departments.

The decision is expected to save more than $100,000, as the force will no longer need to hire hearing officers or pay their travel and meal expenses. Chief White said the force expects to use internal hearing officers and prosecutors for 80 per cent of disciplinary cases, although the cost savings are not the "impetus" for the change.

It is a move "completely in the wrong direction," said Ottawa lawyer Lawrence Greenspon, who believes the decision increases the possibility of bias entering the proceedings. Ottawa police are not just investigating their own officers, he said, but prosecuting and judging them now, too.

"The process is already viewed by most people as one (with) a lack of independence," said Mr. Greenspon, an outspoken critic of the police complaints process who has frequently sued the department on behalf of his clients for alleged misconduct.

In the past several years, the hearings have dealt with Police Service Act charges against officers ranging from allegations of unnecessary force to the theft of drugs, as well as allegations of discreditable conduct, insubordination, deceit, breach of confidence and neglect of duty. Last year, there were 10 Police Service Act hearings.

"If a hearing is going to have any meaning, it has to be presided over by somebody who appears to be and is independent from the person who is appearing before them. You don't want somebody (the officer) is going to run into in the halls and may have had a relationship with before, or after, the hearing," Mr. Greenspon said.

Mark Ertel, president of the Defence Counsel Association of Ottawa, agrees that the appearance of bias could undermine the disciplinary process.

"It's got trouble written all over it," said Mr. Ertel of the change.

"The judicial officer can't even pretend to be independent. Whenever you remove layers of independence from judicial officers, the possibility of bias increases."

Mr. Ertel noted the new arrangement could benefit accused officers, who will continue to be represented by experienced legal counsel while the police service prosecutor has no formal legal training.

However, it could also work against officers if the hearing officer and prosecutor feel internal pressure from senior officers to fire the officer from his job.

"The person who prosecutes, and the person who decides, are both answerable to the chief in day-to-day life," he said.

But Chief White said the process is "accountable" and will remain that way with the changes.

"We are wide open to the public. Our hearings are open to the public and if there is concerns raised I can guarantee the public will raise those with us."

Chief White said the seven senior officers who will handle the disciplinary hearings -- made up of superintendents and inspectors -- have undergone a week-long training program in Orillia to prepare for their new duties.

The first hearing using senior officers as the hearing officer and prosecutor was held this week when Ottawa police constables Dan Bargh and Jonathan Guilbeault appeared after being charged under the Police Services Act.

The chief's move, which goes back to the way things were handled years ago, has the backing of the Ottawa Police Association.

Association president Charles Momy said he believes the move will benefit officers, who may have an increased opportunity to negotiate informal resolutions to potential Police Service Act charges before they reach a public hearing.

Mr. Momy acknowledged that the fact officers will still have lawyers could give them the upper hand over the less experienced Ottawa police prosecutors when it comes to legal arguments and evidentiary issues.

If the hearing officer reaches a decision an officer feels is unfair, they can always appeal to the Ontario Civilian Commission on Police Services.

Mr. Momy said if there is a flaw, it is with the whole hearing process, not the chief's decision to use senior Ottawa police officers instead of a retired officer from an outside jurisdiction.

"It really doesn't have the perception ever of (being) unbiased," said Mr. Momy, noting it's the chief's prerogative who presides over the hearing.

Mr. Momy said he understands concerns the public may have about the optics of the hearings, but he has to look out for the best interests of Ottawa officers.

"It's not my job to protect the interests of the public. It's my job to protect our members," he said.

Aileen Leo, spokeswoman for the Ottawa Witness Group, a social justice organization that monitors police actions, said even a perception of a conflict of interest doesn't serve the police well.

"Justice should be done and justice should also be seen to be done," said Ms. Leo, who encouraged the service to reconsider the decision.

"Many third parties will think there is an inherent conflict of interest of having officers from the same force doing their own investigations."

aseymour@thecitizen.canwest.com

© The Ottawa Citizen 2008