Shaping Civilian Oversight
Numerous court decisions, civil cases and reviews over three decades have played an important role in shaping the manner in which the SIU conducts its business, and more broadly the area of civil oversight of policing.
April 6, 2017 saw the release of the report by the Independent Police Oversight Review, which the SIU welcomed for its contribution to the process of strengthening Ontario’s system of civilian oversight.
Read: Report of the Independent Police Oversight Review
The officers objected to having to travel to the SIU, claiming they were being treated differently and in an unreasonable manner compared to non-police officer accused persons who typically have their fingerprints taken in the same region in which their alleged offences occurred. They further argued that requiring them to attend at the SIU violated their Charter right to be free from unreasonable search and seizure. The officers filed an application before the court to quash the summons.
On April 7, 2015, the Superior of Court of Justice ruled that the SIU’s policy of requiring police officers whom it charges with indictable offences to come to its offices in Mississauga in order to be fingerprinted did not violate the police officers’ rights. The ruling cited the fact that the Supreme Court of Canada had in Wood v Schaeffer described the SIU as an organization that was intended to be an independent overseer of the police. In this context, for the SIU to insist that it do its own fingerprinting at its offices was a reasonable effort in line with that objective.
Superior Court of Justice decision: R. v. Blonde and Cavan, 2015 ONSC 2113
The initial application was heard in May 2010 before the Honourable Madam Justice Low of the Superior Court of Justice. On June 23, 2010, she dismissed the application, in part on the basis that the issues were not justiciable because there were other ways of bringing the issues before the courts.
The families appealed the decision to the Ontario Court of Appeal and the case was heard on September 7 and 8, 2011. On November 15, 2011, the Court of Appeal overturned the Superior Court’s decision and held that the families did in fact have standing to seek the declaration. The Court went on to find that while officers are entitled to speak to a lawyer prior to writing their notes about their rights during an SIU investigation, the law did not permit them to have a lawyer assist in the preparation of notes or inspect the notes for controversial statements that could leave the police officers vulnerable to criminal charges.
Ontario Court of Appeal decision: Schaeffer v. Wood, 2011 ONCA 716
The officers maintained that they had an unfettered right to consult with counsel in advance of the preparation of their notes and sought leave to appeal the decision to the Supreme Court of Canada. The SIU also sought leave to appeal, submitting that even the limited right to counsel permitted by the Ontario Court of Appeal went too far.
SIU Factum: Response to Leave and Supporting Cross Appeal (00399387)
The Supreme Court agreed to hear the appeal on April 19, 2013. On December 19, 2013, the majority held that police officers are not entitled to consult with lawyers, even for basic legal advice, ahead of preparing their notes. To allow such consultation would undermine important objectives of the legal regime governing the work of the SIU: the maintenance of a police oversight body that is both independent and perceived by the public as independent; and, the creation by police officers of notes about police officers’ observations not distorted by biases, omissions, and/or inaccuracies.
Supreme Court of Canada decision: Wood v. Schaeffer, 2013 SCC 71
Ontario Superior Court decision: Metcalf v. Scott, 2011 ONSC 1292
The applicant appealed the decision to the Ontario Court of Appeal, which heard the case on December 13, 2011. On May 7, 2012, the Court of Appeal affirmed the lower court’s ruling, confirming that the SIU could investigate retired police officers and pre-1990 incidents.
Ontario Court of Appeal decision: Peel (Regional Municipality) Police v. Ontario, 2012 ONCA 292
The report focused on the Ministry of the Attorney General’s implementation of recommendations outlined in the 2008 Ombudsman report. The Ombudsman reiterated a number of those recommendations aimed at the Ministry and the Government of Ontario. Many of them focussed on the need for legislative reform.
Read: Oversight Undermined
Then Director Ian Scott responded to the release of this report.
Read: SIU Responds to 2011 Ombudsman Report
When the matter first came to court, the presiding judge dismissed the province’s application and the matter was appealed to the Ontario Divisional Court.
On June 4, 2010, a majority of the Divisional Court panel dismissed the province’s appeal of the lower court decision.
The province appealed to the Ontario Court of Appeal. That appeal was heard on February 22, 2011. In its decision, released on April 8, 2011, the Court of Appeal agreed with the SIU position that public investigators do not owe a private law duty of care to the families of victims of crime in the course of criminal investigations.
Court of Appeal decision: Wellington v. Ontario, 2011 ONCA 274 (O.C.A)
Leave to appeal that decision was denied by the Supreme Court of Canada in October of 2011. By refusing leave to appeal, the Supreme Court of Canada indirectly affirmed that the SIU’s investigations were meant to benefit the public as a whole rather than any particular person with an interest in a given investigative decision. This implicitly affirmed the SIU’s institutional independence.
Read: Report Regarding SIU Issues
The following changes, under a new regulation, came into force on August 1, 2011:
- prohibit witness officers from being represented by the same legal counsel as subject officers
- require that a police officer's notes be completed by the end of the officer's tour of duty, except where excused by the Chief of Police
- explicitly provide that a police officer involved in an incident shall not communicate directly or indirectly with any other police officer involved in the same incident concerning their involvement in the incident until after the SIU had completed its interviews.
Read: Oversight Unseen
Then Director James Cornish welcomed the Ombudsman's report on the SIU as helping to improve SIU processes and maintain public confidence and trust.
Read: SIU Director Responds to Ombudsman's Report, September 2008
Then Director Ian Scott provided a one-year update on what progress had been made in relation to the Ombudsman’s recommendations.
Read: SIU Moves Forward on Ombudsman's Recommendations
On February 26, 2003, Mr. Adams’ Review Report on the Special Investigations Unit Reforms Prepared for the Attorney General of Ontario was released. The report found that increased public funding and regulatory changes supporting the SIU had been successful in building police and community confidence in the SIU and in providing a more effective regime for SIU investigations.
Read: Review Report on the Special Investigations Unit Reforms Prepared for the Attorney General of Ontario by the Hounourable George W. Adams, Q.C.
On May 14, 1998, the Consultation Report of the Honourable George W. Adams, Q.C. to the Attorney General and Solicitor General Concerning Police Cooperation with the Special Investigations Unit was released. The Report made 25 recommendations, the most important being that the SIU be given resources commensurate with its important mandate and that a detailed regulatory framework for SIU investigations be established.
Read: Consultation Report of the Honourable George W. Adams, Q.C. to the Attorney General and Solicitor General Concerning Police Cooperation with the Special Investigations Unit
Read: A Report and Recommendations on Amendments to the Police Services Act Respecting Civilian Oversight of Police
Read: Report on the Advisor on Race Relations
In April of 1993, the SIU was moved from being under the auspices of the Solicitor General to the Ministry of the Attorney General, in order to give it greater separation from the police.
Following the deaths of several black men, hundreds and thousands of community members took to the streets in protest. This resulted in Mr. Clare Lewis being appointed by the Solicitor General of Ontario to Chair the "Task Force on Race Relations and Policing" in December of 1988.
In April of 1989, the Task Force submitted its report, which made 57 recommendations for changes in the law on the use of force by the police and on police training, as well as a recommendation to create an independent investigative body with the power to lay criminal charges when warranted.
Read: The Report of the Race Relations and Policing Task Force