• J. Blackman (law student)

When the Police Cross the Line, What Happens? (a student perspective)

In Manitoba, complaints about municipal police go to the Law Enforcement Review Agency (LERA). LERA releases an annual report on incidents and complaints. According to the 2016 report, of 126 complaints 27 were dismissed as being beyond the scope of the complain legislation, 67 were dismissed for lack of evidence to support a hearing, and 29 abandoned. Only 2 cases made it before a provincial court judge (2016 Report). The staggering rate at which complaints fail to be heard raises hard questions about the review process.

LERA investigates allegations that fall under Section 29(A) of The Law Enforcement Review Act such as abuses of authority including among others “unnecessary violence,” “oppressive or abusive conduct or language” or “being discourteous.” According to a CBC article, since its inception in 1985, only three of over 4336 cases have been submitted to the courts for criminal proceedings (Geary, 17 October 2017). Either because they were dismissed or abandoned by the complainant, 3894 complaints have never been resolved (Geary, 17 October 2017).1 Under Section 27(2) of the Act, the standard of proof for an investigation to lead to discipline is that the judge is “satisfied on clear and convincing evidence” that alleged action occurred. In over 4000 cases only 138 have ever been before a province court judge (Geary, 17 October 2017). The police are human, and, no matter how well trained, humans make errors.

Complaints made to LERA track respondents' age and gender, but this data does not provide evidence about the socio-economic status of the complainants. Because of the nature of the police’s work, it is a fair assumption that Indigenous people and people living with financial instability are overrepresented. This assumption is based on three illustrative facts: 1) the systemic overrepresentation of Indigenous people in the criminal justice system (Department of Justice), 2) complaints based on discrimination under Manitoba’s Human Rights Code 9(2) were the 6th most common grounds for complaint, accounting for 12 of 122 total cases in 2016 (2016 Report), and 3) the admission by LERA’s commissioner that many complainants are forced to self-represent because they cannot afford a lawyer and Legal Aid will generally not deal with this type of complaint (Geary, 17 October 2017).

Inability for complainants to access legal counsel is particularly concerning for LERA’s ability to provide a procedural fairness, and thus legitimacy, for its decisions. Under the Act, both parties to a complaint are entitled to legal counsel. Any member of the Police Union will be represented by counsel from their union. On the other hand, prohibitive costs leave many complainants to self-represent (Geary, 17 October 2017). The resulting power imbalance, between unrepresented citizen and respondent state, may be a contributing factor to the volume of cases that are dismissed for lack of evidence or abandoned by the complainant. Research from the United States suggests that people who self-represent “lose significantly more often” (Canadian Bar Association, 2013, p. 10). LERA’s credibility suffers when police are able avoid discipline for lack of evidence.

Compounding issues of access to justice, the commissioner’s investigation powers are limited. Powers are outlined in Section 88(1) of The Manitoba Evidence Act and include “summoning any witnesses ... and ... requiring those witnesses to give evidence on oath or affirmation, ... as the commissioners deem requisite to the full investigation of the matter.” Unfortunately for LERA complainants, under Section 19 of The Law Enforcement Review Act, a respondent has the right to remain silent, and “is not bound to make any statement to the Commissioner, or to answer any question asked by the Commissioner or anyone employed by the Commissioner.” The burden of evidence falls heavily, if not solely, on to the complainant.

Restricting the Commissioner’s ability to compel evidence increases the likelihood the case will be dismissed for lack of evidence. Since the commissioner cannot compel responding police offers to provide evidence. The result is people who are unlikely to know what makes for good evidence are asked to provide evidence of an interaction that can be impossible, or nearly impossible, to document. One potential solution to both the challenges of access to justice and the inability for the commissioner to compel evidence is a requirement that police wear body cameras.

Body cameras create two important opportunities for the justice outcomes. First, body cameras solve the problem of lack of evidence. As a result, barriers to successfully filing a complaint are reduced, increasing, slightly, access to justice. With more complaints reaching a judge, public confidence in the review process would likely grow. I believe that with a credible complaints process, public perception that police lack accountability for their actions would diminish, ultimately making police-community relationships easier to form. Second, video creates a wealth of useful training material to ensure that police are well prepared to fulfill their duties. Nobody believes policing is easy work- it is a high pressure, public role. Access to video, offers officers exposure to situations before they have to face them in the line of duty. Video can also be used by police to review situations that arose over the course of a shift for the purpose of discussing different ways an interaction could be played out.

New privacy concerns do arise out of police body cameras, including circumstances for disclosing video (Burchill, 2017, p. 249). If viewing video was limited to open complaints, the problem of evidence could be solved, but challenges around abandoned claims may, in part, remain. Alternatively, if complainants could only view material in a specific location, such as a police station, there could be issues of potential feelings of intimidation creating new challenges. Ultimately, specifically recording interactions between law enforcement and civilians makes great strides towards getting at the heart of issue of lack of evidence which is fundamental to improving access to justice for LERA’s complaint process.

For many complaints, body camera video could prove to the only evidence that is possible in cases where, as commissioner Max Churley describes, the allegations devolve into “he-said, she-said” accounts (Geary, 17 October 2017). In my opinion, since the 2016 Report identified 49% of complaints as involving allegations of injuries, capturing more than terse words is inevitable.

More mitigation could be achieved by empowering the commissioner to compel evidence from respondents. Equipping police officers with body cameras creates documented interactions between police and the public. More importantly, body cameras create the opportunity for more robust training for members of Manitoba’s municipal police services. Until LERA operates a transparent and accessible review process, dismissed cases will remain a looming question mark on police conduct and accountability.

References:

Burchill, John. “Tale of the Tape: Policing Surreptitious Recordings in the Workplace” (2017) 40:3 Man LJ 247.

Canadian Bar Association, “Equal Justice: Balancing the Scales”, (Ottawa: CBA, August 2013).

Department of Justice, “Indigenous overrepresentation in the criminal justice system” JustFacts (1 March 2017) online: <http://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/jan02.html>.

Geary, Aiden. “More than half of police conduct complaints dismissed in 2016 for insufficient evidence: annual report” (17 October 2017), CBC News, online: <http://www.cbc.ca/news/canada/manitoba/manitoba-lera-police-complaints-1.4357582>.

Manitoba, Office of the Commissioner: Law Enforcement Review Agency (LERA), Annual Report: 2016, (Winnipeg: Government of Manitoba, 2017) online: <https://www.gov.mb.ca/justice/lera/annualreport/pubs/2016-annual_report.pdf>.

The Law Enforcement Review Act, SM 2012 , CCMB c L75.

The Manitoba Evidence Act, SM 2009 , CCMB c E150.

Footnotes:

1. 2028 dismissed and 1866 abandoned.