Asper Centre Students in Focus: Brittany Cohen

Brittany Cohen, a rising second-year J.D. candidate, is another student research assistant working at the Asper Centre this summer.

Building on one of its student working group projects this past academic year, the Asper Centre is developing a series of police oversight legal information guides for the general public (one for each province, the territories and for the RCMP), and Cohen is spearheading the research this summer. The guides will include a plain-language review of criminal and disciplinary oversight procedures in each jurisdiction, detailed steps that affected persons need to take to file a police complaint, timelines to keep in mind, special sections for vulnerable groups such as Indigenous people and victims of gender-based violence, and lists of resources and referrals for further assistance. The guides will be available online and in print, and will be translated into French and several Indigenous languages, to ensure accessibility.

The guides are designed so “[the public] can find really accessible information on how to file a police complaint,” Cohen says. “Right now, in a lot of provinces, it’s really difficult to find the right information.”

The most difficult aspect of her research thus far has been tracking down accurate and up to date information on the precise mechanisms of each province’s police accountability procedures. “The reason we want to create the guides is that there’s a lack of information, so that’s obviously a problem when creating the guides,” Cohen explains. “We will be partnering with stakeholders across Canada to find legal experts in the different regions who can fill in the gaps.”

Cohen was a member of the police oversight student working group during her first year as a law student, where she performed preliminary research on the police oversight bodies in Nova Scotia. Over the summer, she’s been exploring the issue on a national level by reviewing each province’s policing legislation, which establishes the police oversight bodies and/or procedures in that province, and drafting the information guides.

Cohen, who first became interested in the law in high school and who studied criminal justice and psychology in undergrad, is drawn to both criminal defence and constitutional law. “There’s a lot of overlap there,” she says, noting the two fields involve directly assisting clients. “I think both of them have a direct impact on the public, and that’s my main focus.”

Cohen will be co-leading the Asper Centre’s police oversight student working group this upcoming academic year.

By Sarah Strban

A (Slightly) Safer Ontario

On November 2nd, the Ontario Legislature tabled an omnibus bill that comprehensively overhauls the province’s police oversight system. Bill 175, The Safer Ontario Act, is intended to resolve many of the oversight issues raised by Justice Michael Tulloch in his April report. Among them, the Bill clarifies police responsibilities, formally defines oversight mandates, establishes a new complaints body, and moves adjudication externally. As a whole, Bill 175 is a valuable piece of legislation. That said, this new system still allows for police investigating police, and therefore perpetuates a main source of public distrust. The legislation has varying impact on different oversight bodies, which will be explored below.

Ontario Police Forces: Bill 175 does not significantly change the structure of Ontario police forces, nor their policing procedures. The Bill confirms police duties and responsibilities, and sets out the general rules for provincial and municipal forces. It also establishes formal whistle-blowing procedures and protects against internal reprisals. Where Bill 175 breaks ground, however, is in its formal acknowledgment of Indigenous issues. The Bill affirms the unique culture of Indigenous peoples in Canada, and acknowledges a history of conflict in Indigenous policing. Bill 175 also makes strides in its creation of the Inspector General of Policing. This new position will actively monitor police forces and police service boards, to ensure that they comply with the Police Services Act. In general, Bill 175 only makes modest changes to the Ontario police forces themselves, but these changes are important for forging relationships and increasing public confidence.

Criminal Misconduct: Bill 175 is most successful in its amendments to the Ontario criminal oversight system. The legislation expands the mandate of the Special Investigations Unit (SIU) and strengthens the oversight body’s investigatory powers. The SIU is now mandated to investigate 1) all instances of death, serious injury, and firearm discharges, and 2) any further criminal conduct that emerges in their investigation. It had not previously had jurisdiction over firearm discharges, nor could the SIU investigate other kinds of police criminal conduct, such as fraud or obstruction. Bill 175 also formally defines “serious injury” to include cases of sexual assault, which was a major recommendation in Justice Tulloch’s report. In addition, the new legislation strengthens SIU investigations through a duty to comply, and lays down requirements for more public transparency. Overall, the new legislation is successful at empowering the SIU and ensuring meaningful criminal oversight.

Ethical Misconduct: Where Bill 175 disappoints, however, is in the arena of disciplinary misconduct. The legislation makes important changes to Ontario’s oversight mandate, but fails to fully solve the problem of police investigating police. Currently, the Office of the Independent Police Review Director (OIPRD) sends the majority of public complaints back to the same police force to be investigated. Under Bill 175, the new Ontario Policing Complaints Agency (OPCA) can still refer its complaints back to the police, but only to a different police force than the one under investigation. While this is an important step for improving public confidence, this does not resolve the core issue of police investigating fellow police officers. Bill 175 therefore misses a key opportunity to reform police oversight, namely by ensuring independent investigations. Where Bill 175 does succeed, is by expanding OPCA jurisdiction to include special constables’ and First Nations’ police misconduct. The Bill also imposes a duty to cooperate with investigations, so it increases oversight reach and competence in this regard. Overall, the new legislation makes important changes to police oversight, but does not go far enough in ensuring independent investigations.

Discipline Adjudication: Perhaps the greatest success of Bill 175, is the complete overhaul of Ontario’s police adjudication system. Before, police complaints were adjudicated internally by fellow officers, with only appeals heard before an independent tribunal. Now, all instances of police misconduct will be heard before the new Ontario Police Discipline Tribunal, with appeals going to Divisional Court. This means that all police adjudication will be formal, public, and competent. This is a significant change to Ontario’s police oversight procedures, and will be essential for generating public confidence in the police.

Overall, Bill 175 is a much-needed, well-timed amendment to Ontario’s police oversight system. The Bill is not perfect by any means, but it takes major steps towards proper accountability, transparency, and trust in Ontario policing.

Sarah Strban is a 2L JD Candidate at the Faculty of Law. She is the current co-leader of our Police Oversight student working group and she held an Asper Centre Summer Fellowship in 2017 focused on researching police oversight systems in Canada.