Killing Accountability: Cop Crime, the SIU and the Blue Wall
Only a few police agencies in Canada are subject to any independent civilian oversight or mechanism of accountability. The Special Investigations Unit (SIU) in Ontario is often presented as the model example for civilian oversight of the police. The SIU oversees municipal, regional and provincial police in Ontario but does not investigate the federal police, such as the Royal Canadian Mounted Police (RCMP) or First Nations constables or Canadian Forces Military Police. The SIU is responsible for investigating all cases in which police officers are involved in the serious injury or death of civilians.
Despite its place as a model for civilian oversight the SIU has, throughout its history, had a reputation of police bias or being soft on police. For almost a quarter century, the SIU has also been subject to interference, obstruction, and uncooperativeness by police agencies at all levels. A range of ongoing problems have left the SIU what some have termed a “toothless tiger.”
Documents obtained by the Toronto Star show that over its nearly three decade existence, the SIU has conducted at least 3400 investigations but laid criminal charges following a mere 95 of them. While the SIU does not track what happens to those it charges the Star found that only 16 officers have been convicted of a crime after a SIU investigation. Incredibly only three have seen the inside of a jail
Critics contend that the SIU has been regularly unable to perform its stated function as a direct result of police interference. Even more this interference and obstruction is explicitly condoned and, in many cases, even encouraged by police associations. Numerous studies and reports over the decades have found substantial evidence bearing out these concerns.
Then-Ontario Ombudsperson, and former SIU director, Andre Marin authored a 2008 report on the SIU entitled “Oversight Unseen” which was the subject of much attention and which generated a great deal of discussion. In it Marin identified a number of serious issues impacting the efficiency and effectiveness of the SIU and calling the unit’s work into some question. Even more damning was what the report had to say about police agencies and their respect, or more accurately their lack of respect, for public oversight and accountability to the public. Marin was led to conclude that the SIU was a “toothless tiger.”
The disturbing issues highlighted by Marin are numerous. They include delays in notification to SIU by police forces regarding incidents; resistance by subject and witness officers toward disclosing their notes without prior vetting by a lawyer; sharing of legal counsel by the suspect officer and witness officers; and resistance by police officers to submit to SIU interviews.
Critics of police conduct with regard to the SIU note that a delay in the delivery to investigators of notes and interviews with officers can produce a protracted and weakened investigation. Marin spoke to the issue of delayed notification to the SIU in a 2011 interview with newsmagazine W5. As he explained his concerns at that time: “when the legislation says immediate notification, how can you be more clear than the word immediate … if a police agency decides to call three days later, they’ll get I presume a complaint letter from the SIU which will or will not be answered. But there’s no consequence for that police agency” (quoted in Finlay 2011). In the 2008 report, Marin reasoned for more prompt interviews with witness officers. He reaffirmed this years later. In 2011 he asserted that “our investigation found that the problem of delayed witness officer interviews has persisted [over decades] to this day, and continues to compromise the integrity of the SIU’s investigative process” (quoted in Finlay 2011).
The impact of delays is significant and dramatic compared with a more forthright process by police. Marin suggests, for SIU investigations in which police are cooperative: “SIU cases with the right level of co-operation should always be resolved in a matter of days, not weeks and months” (quoted in Finlay 2011).
A few years after the Marin report, former Chief Justice LeSage undertook a 15-month review of the SIU and police relations. His 2011 report also called for several significant changes to investigative procedures, including the recommendation that witness officers and subject officers be prohibited from sharing legal counsel. Lesage further recommended that officers involved in a SIU investigation not be allowed to communicate with each other about the incident.
The root of problems facing the SIU, as for all attempts to investigate police for acts of violence and killings, as for acts of misconduct more generally, is the police themselves as an institution. More specifically is the institutional culture, a dual sense of both entitlement and misplaced victimology (being put upon by a community “out to get them”) expressed by the police. This is the infamous “blue wall” of police silence and secrecy identified and discussed by criminologists. According to Marin, “the police unions take control of the situation…they will defend and protect members regardless of whether or not they believe that person has committed a wrong doing” (quoted in Finlay 2011). Indeed numerous studies of the SIU have identified and highlighted the presence and impacts of the blue wall in interfering with, impeding, and negatively impacting investigatory attempts.
Marin’s observations echoed an earlier study on the SIU, released in 2003, for the Attorney General. In a 2003 study on the SIU, retired Justice George Adams also referenced explicitly “the difficulty for the SIU has been in dealing with the PAO [Police Association of Ontario]” (quoted in Finlay 2011). As recently as July, 2015 serious questions were raised following a decision not to lay charges against the officer involved in the September 2014 killing by police of Jermaine Carby (33) in Brampton, Ontario. In this case Peel Regional Police have maintained a veil of secrecy around the officer who removed a key piece of evidence from the scene of the fatal police shooting (Gallant and Gillis 2015).
As Marin has concluded: “The director of the SIU cannot cause consequences to happen to police agencies who thumb their nose to civilian oversight. So that’s where the rest of government needs to come in and they’ve been rather invisible through all of this” (quoted in Finlay 2011). Such are the limits of investigation of police given the nature of police institutions and their organizational and political power. The result is to allow murderous institutions significant leeway in eluding investigators and avoiding meaningful consequences for their murderous activities. They wield a power unlike any other social institution.
In his annual ombudsperson’s report released July 28, 2015, Marin called on the Government of Ontario to give the Special Investigations Unit more power to charge police who fail to co-operate with SIU investigations. Marin argued again that the provincial government should explicitly outlaw police from impeding SIU investigations.
As has been the case for governmental responses by succeeding governments, under different political party control, current Attorney-General Madeleine Meilleur (Liberal) avoided questions related to giving the SIU more power.
Bruser, David and Michele Henry. 2010. “Are these Cops Above the Law?” Toronto Star October 28. http://www.thestar.com/news/gta/2010/10/28/are_these_cops_above_the_law.html
Finlay, Patti Ann. 2011. “Is SIU a ‘Toothless Tiger?” W5 April 22. http://www.ctvnews.ca/w5-is-special-investigations-unit-a-toothless-tiger-1.629156
Gallant, Jacques and Wendy Gillis. 2015. “Peel Police won’t Name Officer who Removed Evidence from Killing Scene.” Toronto Star July 22. http://www.thestar.com/news/gta/2015/07/22/peel-police-wont-name-officer-who-removed-evidence-from-killing-scene.html