The conduct of the OPCC in recent years and the associated need for changes to the B.C. Police Act

The erosion of truth and principle

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If you were meted out a stinging injustice at work, what would you feel? Might you still hold anger and resentment over a year later? Would it impact your mental and physical well-being, your reputation, your family, your co-workers, your work, and those you serve? Surely a strong and lingering emotional reaction would be normal and collateral negative impacts on others to be expected. The review of your or anyone else’s conduct is an extremely serious matter.

Everyone deserves to be treated with objectivity, respect, understanding, and fairness. I see wrong outcomes as invariably being the product of one or more of these values being compromised within a system. I also trust that we should never be silent when there is a miscarriage of justice, for it diminishes us all in some manner.

In this writing I am conveying information regarding the British Columbia Office of the Police Complaint Commissioner (OPCC). In my assessment, this report points directly to a relatively recent and ongoing pattern of abuses of public office for personal interests which has been damaging to the public interest. I outline my background with the development of the B.C. Police Act and the creation of the OPCC. I then examine the OPCC’s conduct in three matters that are on the public record. Most importantly, informed by these matters, at the conclusion of this writing I propose several specific recommendations that I believe are necessary towards preventing transgressions in the future.

The need for confidence in all government undertakings

It is reasonable to expect all government agencies to function with truth, integrity, and accountability. Ethical conduct and effective answerability are acknowledged as vital for public confidence in a government and its agencies. Over the last year we have been shaken by allegations of abuses of office provincially, nationally, and internationally. It appears that autonomous powers without controls too often invite the erosion of moral bearings. Seeing themselves free of accountability, it seems that some individuals, the offices they hold, or the agencies they belong to come to hold a sense of impunity. Police have extensive authorities which require answerability, as do the oversight agencies that are tasked to provide this.

Thankfully, for the last many decades in British Columbia in policing there has been no evidence of systemic corruption, patterns of abuse of authority, racism, or any other deep-rooted troubles. Bona-fide serious individual officer misconduct remains exceptionally rare. Data shows that the overwhelming majority of public complaints have no merit. Those that do are usually minor matters resolved through corrective instruction or training. This was acknowledged many years ago by the legislative committee chaired by MLA John Nuraney tasked with reviewing the Police Act (2001-2002). I recall this committee discussing that perhaps the most serious issue was getting officers to feel comfortable apologizing more often and sooner. We are indeed very fortunate in this province to have had for decades an exceptional level of municipal police professionalism and integrity, which is rightfully reflected in outstandingly high public confidence ratings of the police.

Nevertheless, the Oppal Commission of Inquiry (1992-1994) solicited extensive public and police input regarding the citizen complaint system. Recognizing the absence of a public role in a process over which police management held exclusive control, Oppal set the framework for the current civilian oversight model.

With extraordinarily professional police services it has been challenging over the years for Police Complaint Commissioners and the OPCC to be noticed by the public and to appear particularly relevant. I have now come to the conclusion that over the last years the OPCC appears to have devolved into an agency that on occasion took extreme measures to obtain notoriety. The questionable processing of many files has been defended as involving complex matters or argued as having unique merits. However, patterns of OPCC conduct become clearer when it’s work is looked at collectively.

Though I am aware of many incidents of concern over the years, there are many privacy considerations when reviewing OPCC files, and so I have limited this paper to three matters which are openly on the public record. The thesis of this writing is that the information presented further below leads to the reasonable belief that the OPCC was in pursuit of media headlines to showcase itself and its’ endeavors. It appears to me that to do so the OPCC consciously made improper process decisions. Additionally, when I see the same names repeated in different processes for which there were questionable outcomes, I am left with the perception that the OPCC hired and at times appointed individuals who had the willingness, biases, or self-interests to achieve the outcomes sought. I see the end result as unreasonable conclusions and/or excessive sanctions. The impact of this conduct has been injustice, a threat to public confidence in the police, a suspect conduct review system, and extensive unnecessary provincial costs. However, on what basis am I qualified to formulate such strong opinions?

My professional background in regard to revisions to the B.C. Police Act and creation of the OPCC

If there were significant issues with the OPCC, why has there been little protest by those agencies negatively impacted? Though there have been public displays of conflict between the OPCC and the police chiefs, police are generally handicapped from criticizing the OPCC for fear of being accused of wishing to avoid public oversight so to keep improper police activities hidden. I am now retired from a policing career with the Vancouver Police Department. I am no longer constrained by the Police Act or the police department’s considerable restrictions to public commentary. I have a unique depth of knowledge and experience in regards to the Police Act; its history, its issues, the people involved, and the politics of the OPCC.

Early in my career in the 1980s under the statute of that era, I became involved representing members as a Police Act agent in all in-house processes and before the Vancouver Police Board and B.C. Police Commission. I eventually provided agent training to other police officers. I learned and taught that when allegations of misconduct were unreasonably added on to or changed during an investigation it was time to discover the underlying internal politics. The investigative motivation was too often uncovered to be about something quite different than the initial facts or circumstances.

In time I became the Vancouver Police Union President (1988-1996), where I was troubled to learn that on occasion political dynamics well beyond the department also manipulated conduct review processes. One unforgettable high-profile matter involved the alleged assault by a police officer of a citizen. In response to significant public perceptions that police witnesses were engaged in a ‘Blue Wall’ of silence, the court system itself appeared to have been manipulated. I was appalled in learning afterwards that two assigned judges involved in the lengthy criminal undertakings had prior knowledge through involvement in earlier legal processes regarding the same circumstances. This was a situation that Senior Crown Counsel assured me would absolutely never occur due to real or perceived biases. I wondered how it had. Much later I came to recognize the underlying political demand at the time for government to be seen as effective in holding police accountable for the widely reported perceived scandal. The handling of the matter clearly reflected that the professional conduct review system at that time was seriously inadequate.

During my union presidency I represented both the Vancouver Police Union and the British Columbia Federation of Police Officers to the Oppal Commission of Inquiry into Policing (1992-1994) in regards to reforming the Police Act (Act) citizen complaint provisions. We sought to build a process that provided a fair, objective, non-political, and reasonable review of police officers’ interactions with the public. To distance department politics and government influences I strongly advocated for an independent oversight office.

A fundamental principle contained in the Oppal recommendations, which became reflected in the Act, was the recognition that workplace issues belong with the employer under labour-relations legislation, the same as for any other employment. There was no basis identified why police employment could be argued as more unique than any number of other complex professions that were governed by labour law. A unique and separate public oversight process at provincial government expense for reviewing police conduct was justifiable only if it limited itself to the unique provision of police services to the public, termed ‘the execution of public trust duties.’

The Oppal Inquiry also expressed the prevailing belief that for public confidence in the police there should be ‘exterior’ oversight for public trust complaints, as well as for the public airing of contentious police matters. Rather than building two distinct processes, for expediency a public hearing process was suggested as both a level of appeal for serious matters or for a rare needed public airing. As such, it was to be a dignified, objective, fair, informative, and impartial process. Looking back, the expectation that this open-ended dual-function process would not be abused was simply naïve.

When the revised Police Act created the OPCC I participated in implementation committees and discussions under the first commissioner, Don Morrison, directed at building successful procedures and practices. Years later, as an Inspector, I represented the Vancouver Police Officer’s Association and on three occasions spoke to the legislative review committee (2001-2002) mandated in the Act. Unfortunately, the legislative review became derailed when witnesses brought forward claims of serious conflicts within the OPCC office. This information was an indication not only of problems between individuals in the OPCC, but also with the clarity and interpretation of the Act itself within the OPCC. Eventually the review of the Act was passed over to Josiah Wood (2007). On behalf of the Officer’s Association I also spoke with Wood. His recommendations resulted in some adjustments to various details in the Act.

Many years later, I was designated the Vancouver Police Department’s first full-time and trained Discipline Authority by the Chief Constable. I adjudicated an estimated 120 files over 16 months (2011-2012). In this role I on occasion had dealings with the OPCC, and of course regularly with police investigators who were compelled to engage with that office. During this time, I came to know very well the OPCC’s way of conducting business. I experienced the extent to which the interpretation and application of the Act had shifted far away from its original ideals and intentions. Too often it seemed to me that evidence and reasonableness were frequently set aside and processes interfered with or manipulated so that desired outcomes would result. My impression was that the OPCC was now not driven primarily by public interest, but very often by its own biases or self-interests.

Lastly, I can speak to the perspective of those officers dealt with by the OPCC, as at the end of my 40-year career I was also a respondent officer under the Act. This experience made vivid to me the need for the OPCC itself to have accountability and of specific changes to the Police Act that would help bring the conduct review model closer to its intended principles and processes.

Today, I have come to perceive that over the years the OPCC developed an unanticipated life of its own. To me, the OPCC now seems largely driven by the need for organizational justification, along with the career self-interests of its personnel. In pursuit of this, I have at times viewed the OPCC as inappropriately initiating investigations purely in pursuit of media headlines, seeking control over high-profile employment matters, using costly litigation against police officers and police agencies in attempts to secure noteworthy cases, and unnecessarily ordering expensive public hearings. Too often I have felt that facts and procedural fairness, harms or injustices to people, negative impacts on the delivery of police services, or diminished public confidence in the police did not matter. What seemed to matter was media reporting that created the narrative of regular serious police transgressions and that the Office of the Police Complaint Commissioner and the Commissioner were therefore essential, involved, and doing work that should be noticed. Driven by its own agendas, the scope of police conducts now taken hold of by the OPCC appears to have no boundaries. In my view, this is due to weaknesses and contradictions written in the Act, interpretations and decisions by the Commissioner at variance to the statute’s design and intention, and a lack of accountability of the OPCC itself.

I am posting my views based on my unique experiences in hopes of fueling a critical examination and conversation of civilian oversight of police conduct, ultimately for the future success of public policing in this province.

An examination of matters on the public record

The three relatively recent matters outlined below in my view involved process decisions that were not called for based on the evidence, relationships, or circumstances involved. I believe that procedural choices did not serve the public interest, but rather served the sole objective of drawing sensationalist media coverage for the OPCC. I see these three scenarios as egregious violations by the OPCC of our societal norms of objectivity and fairness in the review of any person’s conduct. I view these cases as the publicly exposed ‘tip of the iceberg’ of the attitudinal malaise that has developed over many years in the unaccountable OPCC.

Constable Todd (2011-2015)

Headline catching stories do not get much better than the allegation of a murder being covered up for many years by a Police Constable. But was there ever any real evidence, or was this simply dramatic imagination and creative guesswork?

This matter involved an Oak Bay Police Department file which had been concluded many years earlier in regards to an accidental death. Originally, the circumstances looked to involve an individual staying overnight in his mother’s home on the main floor level. Evidence suggests that very late in the rainy evening he put on his boots and went onto the porch to smoke a cigarette. It appears he may have slipped, or even had a seizure, and falling, struck his head hard once against a railing post.

Sleeping in the house that night were also the deceased’s sister in the basement, a male friend of the sister upstairs, and the mother upstairs as well. Overnight, the mother heard a bump or thump that caused her to wake up. She came down to find her son sitting on a sofa and holding his head. When the mother realized her son was becoming unresponsive, she called an ambulance. He was taken to the hospital where, after having been in a coma for 36 hours, he died. As required by law under such circumstances the attending doctor called the police. The police conducted an investigation and determined the death to be accidental. Many years later a friend of the deceased told police in Alberta of his belief that more may have been afoot that night. An Oak Bay Police Sergeant commenced what became a new and lengthy investigative probe.

The Coroner’s service maintained their original opinion that the single head injury causing death was consistent with a fall and that there was no evidence that a weapon was used. A new independent forensic medical opinion was also purchased, which simply summarized what was known, that some broad surface was involved in the head injury. It appears that speculation persisted that a homicide had occurred in the home that night. Therefore, necessary collateral theories were spun that the deceased’s family must have misled the sudden death investigation and buried the truth for many years. An electronic surveillance authorization was obtained, the family stirred into talking about the death, and eavesdropping conducted. The wiretaps yielded no new information, and thereby failed to support the conspiracy of silence theory. Another idea was that the daughter’s male friend, who was in the house that night, had for some reason killed the deceased. The thoughts which then floated forward were that this nominated ‘suspect’ must have told others of the homicide, who in turn must also have covered it up for a decade.

The investigation’s climax was a protracted interview by a Forensic Interview Team with an identified cousin of the nominated suspect. That cousin was Constable Todd of the Vancouver Police Department. The interview was preceded by the questionable arrests of the deceased’s mother and sister, and of the ‘suspect’. The Police Act adjudicator, Wally Oppal, later noted that at the time of these arrests, “It is important to note that that there was no evidence to implicate any of the three of any crimes”. The interrogators appear to have wanted to be able to tell Todd that arrests had been made. In the hours-long interview “threats, inducements and coercion were used” against Todd. He was falsely told that he himself had the criminal charges of obstructing justice and breach of trust “ready to go against him”. He was repeatedly lied to, while wrongfully believing that there was “honesty and truthfulness when dealing with one another” as police officers. Believing the investigators, and being provided with “many suggestions” by the interviewers, Todd finally sought to placate the interviewers’ insistence that the suspect must have told him of this crime. Todd then provided a story of what he believed they wanted to hear. Todd was described at this time as “emotionally broken”.

Compared to what was already factually known, this was a seriously flawed narrative. It was erroneous in stating the deceased was intoxicated that evening as the Coroner’s toxicology results showed no alcohol. The suggestion that a physical altercation had occurred on the main floor was unsupported by evidence. The idea that in the midst of this fight the suspect was able to conveniently locate, grab and use a weapon to accurately strike the deceased once fatally on the head was difficult to comprehend. The statement that the police were summoned that night was also incorrect, as it was the emergency room physician who had called the police much later the next morning. The investigator, who was present during the interview, did not question these and other inconsistencies between the statement contents and previously gathered evidence.

Based on Todd’s statement the suspect was criminally charged. Todd himself was forthwith suspended from work. In the end, when Crown Counsel received Todd’s immediate recanting of his statement once out of police custody, the criminal charges were dropped. Much later the investigator revealed that this statement by Todd was the only actual ‘evidence’ in support of his homicide conjecture.

Nonetheless, still holding onto the exciting narrative of murder and coverup, a Police Act investigation of Todd was completed. I was the initial Discipline Authority. I received the completed investigation report and as required by the Act I studied it and the evidence in-depth. In my view, to any properly trained police officer or lawyer a homicide was not in any manner evident, and so nothing could have been covered up. The interview statement provided by Todd appeared to be what he said it was immediately upon release from his own unlawful arrest, a fabrication created under duress from his desire to get out of the interrogation room and home to his family.

As the OPCC monitors investigations, I called a senior analyst familiar with the file. He seemed quite alarmed at my assessment. I had the impression that the file was just too big of a story to let go of. Rather than adjudicating right away, pursuant to the Act, I first rejected the investigation and instructed the investigator to reappraise his analysis as it made no sense to me. He advised that he had just been doing what he was told to. The commissioner soon after pulled the file from me and directed it to then Chief Constable Dave Jones of the New Westminster Police Department. I found it incredulous that Jones upheld misconduct and terminated the officer’s employment. From my appraisal of the evidence I wondered how or why Jones could possibly have come to his conclusions. At a subsequent public hearing, much to my relief, adjudicator Wally Oppal concluded that not even on a balance of probabilities was there ever any homicide and reinstated the officer. I perceived that the OPCC had desired and successfully obtained significant media attention from what in my view was always a non-existent case and which involved substantial unnecessary public cost. Rather than seeing Constable Todd as having been handled with objectivity and understanding, I see the treatment he endured as an appalling injustice in which tremendous pain and hardship spanning many years was inflicted on him, his family, his peers, and his friends. At this time, I began perceiving the conduct review process as being excessively influenced by OPCC self-interests.

Chief Constable Elsner (2017-2018)

This matter involved an alleged mutually consensual workplace flirtation, mainly via Twitter messaging, by the male Chief Constable of the Victoria Police Department with a subordinate’s wife. When this inappropriate employee-employer matter came to light, it was in time resolved with the Chief Constable ending his career in a resignation to his employer, the Victoria Police Board. Employment termination is the capital punishment of labour law. But in the #MeToo era this scenario held tremendous media headline potential.

The OPCC attempted to pull the matter under the Police Act public trust stream. This was challenged in court by Chief Constable Elsner, where the chambers judge quashed, in part, the Commissioner’s order for external investigation. The OPCC, at considerable public expense, pursued the matter to the B.C. Court of Appeal. In April 2018, Madam Justice Mary Newberry wrote, “The Chief Constable resigned his post in May of 2017… the PCC might reconsider whether it is still necessary or in the public interest to spend public funds at this date on investigating what appears to have been an entirely consensual and short-lived flirtation via Twitter involving a Chief Constable who is no longer employed by the VPD”. The court noted that there was no complaint under the Police Act and the allegations did not involve a police officer carrying out his duties or interacting with the public. The court said, “Instead it involved conduct of the kind that may occur in any workplace — a flirtation between two people, both married. In this instance, the ‘relationship’ was found not to have gone beyond some Twitter messages and one awkward meeting in his office when she turned up unexpectedly”. The court continued in adding that if the matter were pursued further personal and privacy interests would suffer. The court observed, “One can only imagine the effects on Officer A and B and their family of an external investigation which will take place in the public eye.” The appeal court’s wisdom and sentiments were clear. The OPCC ignored them and carried on. Later, the OPCC usurped any adjudication by a police official when Carol Baird-Ellan was appointed as a civilian Discipline Authority. With this action by the OPCC, I was not particularly surprised then when Baird-Ellan decided there was misconduct indicated; but it was stunning when she then demoted the now retired Elsner down from the top to the very bottom of the police rank ladder, to Constable. The OPCC later held a news conference in which the commissioner, Stan Lowe, showcased the severity of the penalty. I have wondered many times to what end, to what public good, was Elsner further humiliated and his family and friends needlessly hurt. All I could conclude is that fallen police chiefs make great media stories. I see the public as having received nothing beneficial from the exercise. In my assessment, the OPCC secured their headlines and got their distorted and self-serving messages out – that horribly serious police misconduct was out there, and that the OPCC existed, was relevant, and was working.

Inspector de Haas (2017-2018)

And then, this was my experience. The event involved a female guard upset over the inadvertent tap on her hip by a senior officer in a public setting. This was a workplace relationship scenario. However, with the Elsner matter ongoing, it appeared to also be of enormous interest to the OPCC as another media interest #MeToo scenario.

My last 5 work years were managing the Vancouver Police Jail. One evening, moments before a graduation ceremony, I observed one of my guards standing with her hands deep in her pockets. With many invited guests already present, she was socializing and looking very unprofessional in the center of the large event area. To correct her demeanor, I came up from behind her and gently guided her hands out of her pockets to her sides. I then said that we do not put our hands in our pockets in public. As I was speaking and without any thought, I tapped her once lightly on the side. I departed and was not aware that she then became upset. She immediately began casting herself to peers as the victim of a ‘slap on the bum’.

Even though this event contained no execution of public trust police duties to the public, weeks later I was summoned to a superior’s office and provided a copy of an OPCC ‘Order to Investigate’ with the “specific” allegation that I had “slapped [the guard’s] right buttock with an open palm…”, a clear sexual misconduct. I recognized the politics immediately – a senior male officer in a #MeToo story. It didn’t matter to the OPCC that this was a workplace matter.

When the completed investigation report came out it contained the interview with the complainant. In a quiet room and with her union support person present she was calmly interviewed. The investigator asked her “How would you describe that slap? Was it a tap? Was it like a forceful slap?” She answered, “A tap. I guess.” Moments later, of her own volition, she added, “It didn’t feel sexual in nature at all.” I believe she told the truth at this time with the expectation that the story she had spread when upset would be dispelled and things set right. With our two versions of what occurred now the same, in my mind this voluntary evidence dissolved the specific allegation.

However, the Discipline Authority assigned by the OPCC was Dave Jones, the same person as in the Todd matter detailed above. Jones appeared to realize the specific allegation was not proven. Similar to in Todd, undeterred by the deficient evidence Jones stated that “something” had happened and therefore there was misconduct – and offered me a 5-day suspension. Having been a Discipline Authority myself, and so many times having reconciled evidence and then held it against misconduct criteria, in my mind I knew Jones’s findings to be wrong. I asked for a Review on the Record, a process where an adjudicator would review the investigative evidence. I had full faith that an independent and competent legally trained person would correct things.

Instead, a full public hearing was ordered. This made no sense to me at first. I have now come to my own conclusions as to why this was done. Public hearings garner news headlines. Public hearings also open up new possibilities – as the hearing is not limited to the specific allegation that was investigated. As a forum for both appeals and for ‘public airings’ it is open-ended and can find anything at all to be a misconduct. Then the assigned adjudicator became Carol Baird-Ellan, the same person as the Discipline Authority in the Elsner matter outlined above.

As the hearing unfolded it seemed to me that it was not about establishing the truth. Instead of a diligent and thoughtful examination over the nature of my momentary physical contact with the guard, it was from the start a wide open and sensationalized production. From my perspective, the two lawyers assigned by the commissioner at times presented a determined prosecution in pursuit of any possible wrongdoing. This included what my legal counsel termed in his submission as ‘character assassination’. From my experience; distortions, innuendos, accusations, and name calling are used when factual evidence is in short supply.

In my view, when the matter went to a public hearing the female guard really had no choice but to uphold her original version of sexual misconduct and to try to dismiss what she had said in the interview, or else the difficult question for her would be – in which of the two versions had she been untruthful. What I perceived at the hearing was that she very nervously now sought to prop up the original story with vague sexual innuendos of my character. However, then having to answer my counsel why in the investigation interview she had said there was nothing sexual in the contact, she quickly changed course and now said that it had felt like punishment, like a “spanking”. It was too late for her to start suggesting that what she really meant to say about me was not that I was flirty, but that I was mean. When also asked about having said it was a “tap” she now offered that she had been pressured during the interview into saying it was a tap. Throughout the transcript of that interview there is no evidence of such influence being placed on her. She had now in essence provided a third version of the events. How is it possible to give any credibility to such conflicting evidence of a personal experience?

In the last moments of the hearing, in one of the commissioner’s lawyer’s submissions, also thrust forward as dreadful was my forwarding over a year earlier the OPCC order to investigate document to my bargaining unit. This had been shared as it directly related to associated and grievable workplace actions taken by the employer at that time. This communication was never the focus of investigation or a proposed misconduct. To me it seemed a desperate attempt to have any finding of misconduct. There was then never the opportunity to properly provide the argument against this new allegation of impropriety.

Baird-Ellan decided that I had in some way wrongfully struck the guard in a disciplinary manner, something that I know did not happen. She got it wrong. Then she chose to find that my sharing the order to investigate with my union was also misconduct. But worse was that she made the public statement that my evidence was therefore untruthful. Spent and disillusioned by this hearing, I chose to retire forthwith from my 40-year career of devoted service to the public and to the Vancouver Police Department. At a later date, while the OPCC shouted for a demotion as in Elsner, to add further injury, Baird-Ellan in my absence chose to hand out two symbolic maximum six-week suspensions. As she had done in Elsner, the sentences were over the top and thereby noteworthy. To me, Baird-Ellan seemed intent to put out publicly that either one or both of these events was indeed bad, or if that wasn’t working for the listener, then perhaps I was bad. I concluded that she had successfully delivered the OPCC their sought-after media headlines. Now, I, my family, and my friends know directly what it feels like to be subjected to what I consider to be undermined integrity and to injustice.

There are various additional outcomes. The female guard, now a police officer, experienced providing three significantly different versions of a first-hand event without consequence. She and her colleagues must have learned that the foundation of policing, telling only the truth, is at times optional. I cannot help but wonder what sort of evidence she might provide in criminal court against accused citizens. Since any workplace allegation may be of interest to the OPCC, and evidently currently accessible, officers may be chilled not only in their enthusiasm for serving the public, but now over anything that happens in their workplace. Never knowing what may be of interest to the OPCC, police management and unions have become less relevant in employment matters. The legitimate concerns between myself and the female member have never been settled. She had a right to share directly with me whatever reaction she had to having her conduct corrected in the manner it was, and I would have shared my expectation that the public always see the police as professional and so have confidence in them. We both may have developed understandings from such a discourse and moved forward together serving the public. The OPCC destroyed this working relationship rather than remediated it.

Examination concluding thoughts

In my judgement the OPCC has devolved into a culture that is dishonest and unethical. The Todd matter tells me facts were pushed aside and people disregarded in favor of a dramatic story. Elsner shows me that a topical workplace situation was appropriated and exploited. My interaction with a staff member exposed that in the pursuit of a conviction my character was assailed, inconsistent stories ignored, and allegations shifted at will. To me, these three narratives show a cohesive pattern in which the conduct review system was highjacked by an agency intent on filling its own agenda. I am knowledgeable of several other matters that can clearly be seen as having suffered from this same dynamic.

On the personal level, I do not know why those involved in this conduct see it as alright or are willing to be blind to its damage to others. What I see occurring may be attributed to ‘noble cause corruption’, where the truth, severity, and significance of an event are seen by someone as obvious, and therefore breaking the rules is argued as justified. However, considering the consistent pattern of OPCC conduct over many years and the variety of circumstances involved, this explanation does not seem plausible. For the same reasons, the possible explanations that the OPCC contains individuals who were perhaps grossly incompetent, brutally insensitive, or blindly biased also do not seem to fit. The most logical explanation to me is that there was a predominant self-interest goal to capture headlines in which the agency and its’ personnel were marketed as relevant and conducting vital work to safeguard the public.

I see the public marketing and announcements by the OPCC as having promoted a narrative that there are chronic misconducts by police officers and an unscrupulous police culture, and as well that police management cannot deal with their members’ conduct or their organizational ethos. I perceive contrived accusations of dramatic wrongdoing, the manipulation of process to obtain desired convictions, and the provision of over-the-top sanctions. When truth is obscured, invariably injustice follows. In my view, in fulfilling its own agenda the OPCC has often shown a blatant disregard for truth, the intent of the law, the harmful impacts on police lives, and the collateral negative effects on service to the public. For police officers there can only be diminished confidence in a fair and just review of their conduct and an eroded enthusiasm to deliver police services to the public. Rather than having civilian oversight protect the public’s faith in their police, paradoxically, the OPCC has undoubtedly created unwarranted diminished public confidence in the police.

Source: https://bc.ctvnews.ca/b-c-cops-acquitted-in-cuban-sex-assault-case-facing-new-investigation-1.4242504

Source: https://globalnews.ca/news/6388378/nicole-chan-suicide-vpd-officer-dismissed/

Source: https://www.timescolonist.com/news/local/hearing-called-into-allegations-against-vicpd-member-1.24079887

Additionally, the OPCC has battered the mandate and authority of the Police Boards as the main pillar of civilian oversight of police. In both my matter and Elsner, the Police Board’s authority as employer was attacked and pushed aside. The OPCC, rather than assisting the Police Boards through promoting knowledge and policy development, wrongly advocated for OPCC involvement in labour-relations matters.

These various outcomes serve no meaningful public good. Only the OPCC has profited.

A proper conduct review system should be considerate, fair, and engaging. It should seek to reconcile differences through a civil and thoughtful exchange of views and concerns. In the process citizens and police officers should feel heard and treated with respect. It should encourage discussion, mutual understanding, and learning. Wherever possible trust and positive relationships should be restored. It requires objectivity, proportionality, and a real search for the truth. If integrity, independence, and excellence are to be the mainstays of a policing watchdog, government must look beyond the outcomes which have resulted under the OPCC and observe the manipulation of the disciplinary processes. The situations outlined above indicate the need for appropriate amendments to the Act to reduce the possibility of future abuses and of future injustices.

Corrective recommendations

Below I offer several recommendations towards remediation.

Span of the Act

The recommendations from the Oppal Commission of Inquiry into Policing were based on lengthy, extensive, and diverse stakeholder input and discussion. A consensus was found that police department employer-employee matters were deemed on an equal footing with any other employment situation. Consequently, the Oppal Commission strongly recommended the ‘normalization’ of labour relations through removing workplace issues from the jurisdiction of the Police Act and having them governed by labour jurisprudence. I recall these discussions with then Commissioner Oppal and government officials at the time. The Police Act public trust conduct review system was never designed to manage workplace matters where ongoing trust, relationships, and conflict resolution practices are critical outcomes for future work endeavors.

The Police Act’s legitimate focus and special process was to oversee the execution of public trust duties by the acts of individual officers and by the policies and procedures of police agencies. As outlined in section 77 of the Police Act, it is designed to deal with the direct delivery of policing services to the public. It is specifically not to attend to matters which do not involve the public – as stated in the definition of “internal discipline matter” in section 76(1). It was recognized that a crystal-clear demarcation was hard to establish in text.

The OPCC has sought to erode the mandate of the employer over workplace matters. It has taken on matters that were so clearly workplace and which unquestionably belonged to the employer. My understanding is that the OPCC’s main strategy has been claiming that any misconduct allegation that may not involve the public but is perhaps of ‘interest’ to them, as fitting the public trust definition of “discreditable conduct” under section 77(3)(h). In this way, anything and everything then becomes accessible to the OPCC. In doing so the distinction between public trust duties and the workplace evaporates. The OPCC went so far as seeking to usurp Police Board authority, claiming in the Elsner matter that the Victoria Police Board mishandled the matter. The OPCC then wanted the law amended so that only adjudicators appointed by the OPCC, and not the employers, would decide on workplace allegations against the police CEOs that Police Boards had hired. How real is civilian governance when Police Boards who are solely responsible for hiring police executives cannot terminate their employment? In attempts to persuade others, the OPCC publicly, and in my view arrogantly, insisted that only they themselves had the “comprehensive understanding of policing, police culture and the administration of police discipline.” I see the OPCC incursion into police labour-relations as without merit, ill-advised, and contrary to the established conduct review framework.

As per the OppaI Inquiry into Policing tenet that police organizations need to ‘normalize’ the employer-employee relationship, and as reflected in the observations of the Court of Appeal in Elsner, I strongly recommend that the Act make very clear that matters between the employer and employees be exclusively dealt with under labour jurisprudence.

The Act can simply acknowledge that matters that are outside of its limited legitimate scope are already within the purview of labour-relations jurisprudence. For clarity, the Act should cease using the confusing term and definition of ‘internal discipline’ as a means of capturing this concept. That term was coined in the first iteration of the revised Police Act due to it directing public trust matters into the labour stream under three specific circumstances. These compromises of process have since been corrected and the basis for the term ‘internal discipline’ has dissolved.

Public Inquiries

As noted above, when the Police Act was developed in response to the Oppal recommendations it was widely believed that sometimes matters would benefit from or require a public airing. For expediency this double capacity was intentionally built within the public hearing process – which itself was the last level in the discipline process. A core objective of a Police Act public hearing is to be an objective determination of the truth per section 138(2)(c) – with one of the OPCC’s counsel ‘presenting’ the investigation materials per section 143(4). I recall discussions in the development of the Act where the term ‘presenting’ of investigative information was carefully chosen as this was not to be a prosecution. It was to be an administrative review, albeit public because of the public nature of ‘the execution of police duties’, where professional conduct was to be reviewed in a calm, objective, fair, informative, impartial, and dignified manner.

The use of the hearing process for public airings has in actuality over the years been usurped by public inquiries under the Inquiries Act – such as in the Frank Paul Inquiry (2008-2011). Public inquires also preceded the Police Act, such as in Michael Jacobsen (1988), and for non-municipal police incidents, such as in the RCMP involved Robert Dziekanski (2008-2009). Inquiries appear to provide a province-wide level, favorable, and more appropriate process.

I recommend the Police Act public hearing be amended to exclude the ‘public airing’ of matters, which are better served under the Inquires Act. In my view the current broad scope of the public hearing process has been abused by the OPCC as a vehicle to explore and display ‘interesting’ matters, rather than those of bona fide significant public trust misconduct and public interest. I consider this an abuse of process, that has over the years also cost the provincial government many hundreds of thousands of dollars.

Public Hearings as prosecutions

With the removal of a public ‘airing’ role for public hearings, they may then be limited to a final step in the prosecution of serious alleged public trust misconducts. The Act needs to limit the current ability of the OPCC to jump forward to costly public hearings at will, as is currently available under section 143.

I recommend that the OPCC be limited at the completion of the investigation and the police adjudication to one of two final steps.

Public hearings should be reserved for matters that ultimately involve reasonable beliefs that a finding of no default by a Discipline Authority is incorrect and where the severity of the allegation if proven should involve a reduction in rank or dismissal, or when there is a default determined and the penalty should reasonably have been a reduction in rank or dismissal; with the respondent continuing to only have the right to a public hearing, as per section 137, if sanctioned in either of these two ways. Due to the severity of these sanctions the calling of witnesses at a hearing appears appropriate. As complainants have a right to full disclosure it makes sense to allow their observation of the hearing, and so the forum is open to the public.

The other option for the OPCC would be the current Review of the Record under section 141 by a civilian adjudicator. I recommend that the Review on the Record be restricted to the OPCC ordering this action when reduction in rank or dismissal is not deemed appropriate and where it is reasonably believed that a Discipline Authority’s finding was incorrect in finding no fault or the sanction deemed unreasonable; or alternatively if a respondent believes that a finding of fault was incorrect or if a respondent agrees with the finding of fault but disagrees with the sanction. This process follows an investigation overseen by the OPCC and an adjudication reported fully to the OPCC. The complainant currently receives copies of all documents and thereby the process has public transparency.

The Act currently allows a public hearing to make findings on any issue that arises during the process. It is unfair to present new allegations of misconduct during or at the end of an adjudicative process; much less when no opportunity to organize or gather evidence in defense is possible. In my matter, as outlined above, the public hearing provided an opportunity in the OPCC’s counsel’s closing submission to make up a misconduct, and without any chance of a proper rebuttal being prepared or witnesses called. From my lengthy Vancouver Police Union and Discipline Authority experience with the Police Act, I have long considered the strategy of widening alleged issues or adding new ones to usually be an acknowledgement that the evidence does not support the original concern. It is an attempt to make something stick, or that the whole collection of accusations will create a compelling negative image, to achieve a finding of misconduct or to obtain a headline. As the OPCC may order any investigation prior to a public hearing, I strongly recommend that public hearings must be limited to the misconduct(s) ‘charged’ from the evidence gathered in a proper and complete investigation.

With the public hearing currently possessing a broad mandate, the Act created a ‘presenting’ counsel, and then for a second counsel to represent the interests of the OPCC. Both of these lawyers are hired by the OPCC and in actuality both conduct themselves as prosecutors. I have heard respondents’ counsels before adjudicators referring to this as the ’two-prosecutor model’ – which was loudly protested by the commissioner’s hired lawyers as incorrect. Based on my extensive observations over the years of all forms of court conduct, I would absolutely describe their conduct as some of the most polarized, vociferous, and de facto prosecutorial behavior that I have witnessed. There is also clearly no need for two prosecutors, and at considerable public expense. The effort and costs put forward to obtain a finding of misconduct by the OPCC all appears so excessive when one at a public hearing also sees OPCC office staff in attendance and actively working in concert with the prosecution; and then learning as well that the OPCC sends personnel over to Vancouver from Victoria and houses them in downtown hotels. I recommend that the Act should mandate one, and only one, ‘prosecuting’ attorney on behalf of the OPCC and that the OPCC should be bound to reasonable resources and costs.

Indeed, Police Act ‘hearings’, likely due to the involvement of retired judges and numerous lawyers, have become quasi-criminal trials. They are held in courtrooms and have all the appearances of something much more than a review of professional conduct. Certainly, this gravitas in no manner reassures the public as it appears that police members are regularly on trial. The entire format could use alterations that bring it down and into perspective.

Lastly, the approach of the Act is also mandated in section 126(3) to be one in which correction and education takes precedence over discipline. In two of the cases above it is clear to me that the OPCC disregarded this provision, in favor of noteworthy excessive punishments – which the commissioner in the Elsner matter took the opportunity to showcase publicly. I recommend a regular audit of sanctions as a means of holding the OPCC accountable to the law.

Appointment of adjudicators

The very essence of justice in our society is fair and objective adjudication. This requires that the judging party be wholly independent, wholly impartial, and free of any personal interest or other conflict of interest. In most circumstances, the adjudicator is either assigned by or through a neutral process or is agreed upon between the constituents involved. Any model in which one party selects the adjudicator contains what in academic literature is termed implicit or perceived bias in favor of the selector. This is unfortunately the current design in the Police Act, whereby the OPCC appoints the adjudicator under section 142. The perception exists that the OPCC has many vested interests in the outcomes of public hearings due to having made process decisions throughout the matter. Added to this is the perception that these appointed adjudicators answer to the OPCC, and at the very least their findings and sanctions influence any future appointments. For me, two of the examples provided above create the very unavoidable and strong sentiment of selective and intentional appointments, leading to the OPCC achieving desired outcomes from the adjudicator. Any individual judging a Police Act misconduct must be seen as being a great distance away from any connection to the ‘prosecuting’ OPCC. The process requires truly independent adjudication – not someone appointed by the OPCC. In criminal matters Senior Crown Counsel has and never would be allowed to appoint justices to any specific matter. As a solution, my recommendation is to have the Associate Chief Justice of the Supreme Court unilaterally, directly and without consultation appoint Police Act adjudicators.

Selection of the Complaint Commissioner

The question arises why the OPCC could be seen as having such apparent significant self-interests. Several features in the Police Act lend themselves to creating such perceptions. This begins with the Commissioner’s fixed term appointment under section 47(3). Being appointed for a limited period, the commissioner is not a career position, but a way-station where a name for oneself can certainly be made. Regular newsworthy topics would seem essential to gaining personal public profile, if not to display the existence and justify the considerable public expense of the OPCC. To negate these concerns, commissioners should perhaps be merited senior career appointments. In their hiring and appointments of staff per section 51(1) it is also fair to assume that commissioners select those who reflect their own mindsets and meet their own interests; noting that these people are also dependent on the commissioner for further assignments or appointments. A commissioner surely is a major influence on the OPCC’s ideology and practices, and undoubtedly has a hand in all high-profile matters. The changes recommended above of a clear ‘prosecutorial’ role for the OPCC, the independent appointment of adjudicators, and the narrowing of public hearings to bona fide discipline matters, will all also reduce the view that the system may be exploited for personal interests.

I recommend that the selection process ensure that potential commissioners be seasoned and reputable individuals who are screened against career or political ambitions. As well, the commissioner should be one who truly understands the background, complexities, and intentions of the Police Act and breaths life into them, rather than potentially being viewed offending them with disregard or with intent while in pursuit of his or her own interests. The public and police also need a more open appointment process in which they may perceive commissioners as being selected for their impeccable integrity and their regard for police dedication and morale.

Summary of recommendations:

1. Span of the Police Act

• That the Act, to be true to the Oppal Inquiry recommendation to normalize the police workplace, clarify that matters between the employer and employees be dealt exclusively under labour jurisprudence

• That the Act acknowledge that matters outside of its limited legitimate scope are already within the purview of labour jurisprudence

• That the Act cease using the now outdated and confusing term and definition of ‘internal discipline’

2. Public Inquiries

• That the Act be amended so that public hearings exclude ‘airing’ contentious matters which are better served under the Inquires Act

3. Public Hearings as prosecutions

• That the Act provides that the OPCC, following the police investigation and adjudication by a Discipline Authority, may if reasonable beliefs are present, order either a Public Hearing or a Review on the Record before a civilian adjudicator.

• That the Act restrict Public Hearings to the OPCC ordering this action for matters that involve reasonable beliefs by the OPCC that a finding of no default by a Discipline Authority is incorrect and where the severity of the allegation if proven would indicate a reduction in rank or dismissal, or when there is a default determined and the penalty should reasonably have been a reduction in rank or dismissal; with the respondent continuing to only have the right to a public hearing, as per section 137, if sanctioned in either of these two ways.

• That the Act restrict a Review on the Record to the OPCC ordering this action when reduction in rank or dismissal is not deemed appropriate and where it is reasonably believed that a Discipline Authority’s finding was incorrect in finding no fault or the sanction deemed unreasonable, or alternatively if a respondent believes that a finding of fault was incorrect or if a respondent agrees with the finding of fault but disagrees with the sanction.

• That the Act limit public hearings to the misconduct(s) ‘charged’ from the evidence gathered in a proper and complete investigation

• That the Act mandate only one ‘prosecuting’ attorney on behalf of the OPCC and that the OPCC be bound to reasonable resources and costs

• That the Act provides for a regular audit of sanctions as a means of holding the OPCC accountable to the law, which states that correction and education takes precedence over discipline

4. Appointment of adjudicators

• That the Act ensure assigned adjudicators are wholly independent, wholly impartial, and free of any personal interest or other conflict of interest, in providing that the Associate Chief Justice of the Supreme Court unilaterally, directly and without consultation appoint Police Act adjudicators

5. Selection of the Complaint Commissioner

• That the selection process be more transparent and that selection criteria be carefully established to reflect the requisite knowledge, experience, integrity, reputation, and selflessness required by the commissioner, as well as the proper understanding of the background, complexities, and intentions of the Police Act

In closing

I have presented my beliefs over the recent activities of the OPCC based on my in-depth knowledge and experience with the development, creation, and implementation of the current Police Act. I firmly believe the OPCC has displayed patterns of self-service at the expense of truth, fairness, justice, and public interest. I perceive that the OPCC at times appears to have taken advantage of the weaknesses and ambiguities present in the Act. At other times I see the OPCC as having shamelessly ignored what the Act says. I judge the OPCC as having taken full advantage of their lack of accountability.

The present very well funded police conduct review system in this province can be seen as not being a public service, but rather as an oversight industry. The Office of the Police Complaint, and the B.C. Independent Investigation Office (IIO) as well, have a need to keep busy; they are required to do something. These agencies rely on a regular volume of ‘complaints’ and ‘matters’ as justification for their existence. Too often there is a vacuum that has to be filled. Once such agencies are created and funded, I see them as obliged to demonstrate that the work they are doing is constant and important. They appear to do so through orchestrating public and political attention. Recently, the IIO, which primarily investigates potential criminal police conduct, following media reports of incidents where police played some part in a sequence of events have responded by announcing their initiation of open-ended investigations. These are undertaken not because any police misconduct has been suggested. They are portrayed as having value in that they might by chance bump into something that may be presented as a wrong-doing by a police officer, or alternatively provide that everything was just fine. Oversight agencies therefore appear to periodically grasp onto ‘high profile’ events; with real, contrived, or simply speculative police misconduct. Those with deep stakes in the system understandably will defend their practices at length. All of the dynamics described above are driven by aspects of human nature, but not of good character.

It is an adage that a process with deficiencies may be applied successfully when good people are involved in its implementation. Having had a career as a police officer and having worked with reams of confusing, unclear, and contradictory law, I know exactly how critical principled, fair, and ethical application of law is. On the other hand, it is also said that good process may be undermined by individuals lacking integrity and wisdom. The best wording of a provision cannot control the characters of the persons administering it. In my opinion the OPCC’s attitude of moral superiority is nothing more than a business façade. I have no idea what hiring criteria the OPCC employs, but I do know that just like any other agency they hire mere fallible human beings. In my view, we presently need both to craft stronger, clearer, and more thoughtful legal provisions and at the same time ensure that we have hired ethical and strongly principled administrators.

I earnestly recommend that there be regular and in-depth annual reviews of the OPCC which provide proper answerability to government and the public. In particular, oversight processes need to include auditing the proper interpretation of the Act. As well, the legitimate and necessary use of tax dollars requires accountability, as the OPCC in my observations used costly litigation at taxpayers’ expense, not conversation, in pursuit of having the Act interpreted in the manner that met its goals. As the OPCC is an independent office which reports to the Legislature, the form of such reviews requires discussion. It should certainly be noted that one-sided self-promoting annual reports are less effective or convincing than a review process initiated by the house itself.

I continue to be concerned that police officers may still be subject to injustices. Media reported events involving on-duty conduct, off-duty incidents, or employment matters are currently all rife for potential exploitation by the OPCC to acquire public profile - notwithstanding what the facts may be. A look at the OPCC websites I believe supports this sentiment. I am told by individuals currently involved in dealings with the OPCC that ‘things have never been worse’. British Columbia has a real and chronic police conduct review design problem which require thoughtful attention and corrective action. For the quality of our lives in this province it does matter that the OPCC is shown to unequivocally operate with truth, integrity, and accountability.

In the meantime, I know the public may rightfully continue to hold our police in the exceptionally high regard they continue to earn.

‘An unaccountable institutionalized system containing a philosophy of blame and shame, and which is administered with self-interest, is guaranteed to generate conflict and injustice'

John de Haas