A TIME FOR CHANGE
November 6, 2015 By Bob Fitches
by Bob Fitches and Glen Donald
The current Ontario discipline process to pursue allegations of police misconduct has remained virtually unchanged for decades. It is time to change how we deal with such things.
Several developments have caused the present system to become bogged down and consequently, less effective. The designers sought to balance a quick response to misconduct with the need for due process but the efficacy of this model has been eroded by factors such as:
Introducing the more cumbersome procedures of the criminal law process;
The increased ease through which an ever vigilant public (armed with cell phone cameras) may make allegations of misconduct, and;
The occasional strained relationship that sometimes exists between associations and police management.
On their own, none of these developments would be cause for alarm. The cumulative effect, however, causes hearings to often take several days or more, leaving all parties faced with enormous legal bills.
Acrimony in the proceedings often raises temperatures in the hearing room. In situations where a public complainant opts to participate – as is their right – the proceedings can often become extremely difficult to manage, thus adding to the length and cost.
Moreover, public complainants sometimes enter the process with unrealistic expectations of the hearing and its likely outcomes. When these expectations are left unfulfilled, they sometimes leave feeling their concerns fell upon deaf ears.
The system as we know it does little to enhance the community’s trust in policing and often causes long lasting difficulties in relationship between officers and their agency.
A hearing is called when an officer is alleged to have committed an act of misconduct. The prosecutor introduces evidence in an effort to prove the allegation(s) on a balance of probabilities. The officer, through counsel and likely with association support, puts forth a defence in fact or law. This is the very definition of an adversarial system.
Even in cases where the officer admits the allegations, there is often wide disagreement about the appropriate penalty. Inadvertently, a system designed with fairness in mind creates discord and disharmony that, far too often, linger far beyond the hearing.
The conduct of police officers facing disciplinary proceedings is often described as “out of character” and frequently attributed to a stressful or unusual situation in their work or personal life. A conciliatory model would allow working toward a creative but appropriate resolution without the acrimony and resentment that is so often an unintended consequences of the formal hearing process.
Our process will involve and engage all parties, including the public complainant, in order to first give them some understanding about the realities of both policing and police discipline. Imbued with a broader understanding, positive outcomes will not only be attainable but can foster renewed public confidence in policing.
Note that our proposal doesn’t prevent a formal hearing in instances where the matter(s) are not capable of being resolved during the conciliation attempt. We recognize that conciliation is unlikely to fully resolve all cases but it would still serve a useful purpose by narrowing the issues to be litigated, resulting in a shorter, more focused and consequently less costly hearing.
Officers who face disciplinary actions sometimes retreat into the temporary safety of their solicitor-client relationship, disengage from the realities of the prosecution that awaits and stop talking with their employer. While suspended, the officer sometimes waits for disclosure and there can be further lengthy delays awaiting the hearing, which itself is subject to further adjournments.
Prosecutions, and the corresponding effect of being prosecuted, often polarize both sides, ending conversation between them. If justice delayed is justice denied, there is very little justice in the current system.
Costs of the litigation (preparation and hearing) can stagger the most hearty accounts payable department. We believe that resolving a significant number of disciplinary cases in a fraction of the time, and for a fraction of the cost, is now realistic. Implementing such a system would save tens of thousands of dollars, benefiting police services, associations and the public.
Above and beyond the actual cost savings is the positive impact conciliation can have upon the individual officer and the resulting, exponentially positive impact upon the organization.
Prolonged proceedings result in enormous stress on officers. Even subconsciously, their performance and overall well-being often suffers, reducing morale in their unit. Only the most remarkable individuals are able to maintain a positive outlook in the face of such a situation. It goes without saying that the quicker these matters can be resolved, the quicker the workplace can return to normal.
As things now stand across Ontario, there are often excessive delays in getting matters before a hearing. There are many reasons for this but the availability of legal counsel (a reality, not a criticism), is often at the root.
Conciliation would resolve a significant portion of disciplinary matters, reducing the backlog. In turn, the more serious matters (dismissal cases) ought to be completed in a much more timely fashion. This can potentially reduce pressures on agencies and associations and perhaps help solve the issue of long suspensions. If serious allegations of misconduct can be dealt with more quickly, instances of officers being on long term paid suspensions can be drastically reduced.
Some would advocate for a “discipline now, grieve later” approach. At first blush, this seems to lighten the administrative load in that discipline issues can be dealt with rather quickly and not all cases would be grieved. One of the shortcomings to such an approach, in our view, is that it can either create or aggravate a negative relationship between associations and police administrators. This could very easily have a dramatic and unfortunate impact upon labour relations and the sense of cooperation within the service and between the parties.
The conciliation method we envision is quite simple. The chief and association would agree to request conciliation. By design, their participation will have no negative impact on the rights of either party should the matter require a formal hearing.
The whole notion of conciliation is that it provides an “off ramp” for all parties involved, permitting the disciplinary matters to be dealt with in a more creative, timely and thoughtful fashion. Our proposal draws upon the experience, creativity, impartiality and common sense of two individuals whose core values align entirely with the fundamental principles at the root of police discipline.
This proposal has met with the strong approval and support of academics, judges and colleagues for its forward thinking, progressive approach. It presents the participants in the present system with the ability to do much more for much less, much more quickly. We believe strongly that this methodology is timely, appropriate and truly worth exploring when disciplinary matters arise.
It truly is a time for change!
Bob Fitches is a retired OPP Supt. who has spent more than 20 years presiding over Police Services Act disciplinary hearings. Contact: 1-888-325-6164.
Glen Donald is a lawyer who has advised officers and associations on disciplinary matters for more than 13 years. Contact: 519-679-9250.
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