Law Times

October 6, 2008

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Law times • OctOber 6/13, 2008 NEWS PAGE 5 failure to adequately oversee po- lice in the province is "devastat- ing" to the public's confidence in the justice system. "The SIU is the ultimate tool of accountability for the police and the police have to have the confi- dence of the public to operate," Marin, who last week released a scathing report on the unit, tells Law Times in an interview. "Right now, the report uncovered, the SIU has been somewhat two-faced about its operations." Marin says the SIU is "fear- ful and frightened, timid and in- timidated." He suggests the unit's success has been measured, both internally and by the Ministry of the Attorney General, in terms of avoidance of controversy. "They are, and in the end it undermines the confidence of the system in the SIU, and ul- timately the confidence in our police," says Marin. The 121-page report, titled ntario Ombudsman An- dré Marin says the Spe- cial Investigations Unit's "Oversight Unseen," revealed that the unit doesn't work fast enough, fails to fully investigate allegations, is unable to force police co-operation, and em- ploys too many ex-cops. The report came with 45 rec- ommendations to the SIU, AG's office, and provincial government to improve the unit. Included is a call for new legislation to strengthen the SIU and a number of changes to the unit itself in order to shake the public's perception that it is bi- ased in favour of police interests. Marin also wants SIU di- rectors' complete reports made SIU is 'fearful and frightened, timid and intimidated' O BY ROBERT TODD Law Times public, and says the law should be amended to make it illegal for police to fail to obey the unit's requests dur- ing investigations. Criminal Lawyers' Asso- ciation president Frank Add- ario says police have never accepted the idea of civilian oversight. He echoes Marin's opinion that legislation must be amended to force police to comply with SIU demands. "If the government is un- willing to do that for fear of alienating police interests, it should scrap the legislation and not hold out its promise," Addario tells Law Times. One major hurdle the SIU has faced, said Marin in the re- port, comes from provisions in the Police Services Act outlin- ing the task for laying a charge against a police officer. The act — which, Marin added, is the SIU's "sole constituting author- ity" — states that the director of the SIU "shall cause informa- tions to be laid against police of- ficers" and refer the matter to the Crown attorney for prosecution. "That runs counter to all common-law principles of charge laying, where there's always a residual discretion," Marin tells Law Times. "Because of that rigid provision of the act, I think the SIU has probably — even though the charge rate is very low — overcharged in the sense that it has not been able to exercise the discretion that nor- mally accompanies the decision of a peace officer." Marin has urged the govern- ment to re-insert that discretion into the act. Marin also says the AG needs to create more space between its own Consultation to be carried out in two phases Continued from page 2 the "size, composition, and representative nature of Convoca- tion," stated the report. In previous consultations on the inner workings of the law society, "issues have been raised by members of the profession and members of Convocation itself on the cost of running the law society, the remoteness from the regulator that lawyers feel, the plethora of programs that have little to do with the core re- sponsibility of regulation, concerns about diversity within Con- vocation, and whether it is representative of the public and the profession," read the report. The task force also points to transformations in the legal and business aspects of the profession. "The environment in which legal professionals provide their services and the services themselves are being affected by a num- ber of factors and trends," stated the report. "These trends . . . raise important issues for the law society, as they touch on access to justice, the demands of practice, the regulatory framework, business structures, and the value of self-regulation." The task force pointed to Australia, New Zealand, England unit's shortcomings only during brief stints following controver- sy. That approach of acting "re- flexively" has stunted any mean- ingful progress, said Marin. It will largely be left to Crown lawyer Ian Scott, who last month was named succes- sor to James Cornish as SIU di- rector, to right the sinking ship identified by Marin. Scott was called to the bar in 1983 and has practised criminal law and administrative law, acting both as a Crown counsel and defence lawyer throughout his career. Scott isn't talking to media regarding his new position un- til officially assuming his post Oct. 16. Marin also declined to com- ment on the new director. Addario — who says Scott is Ontario Ombudsman André Marin holds up a copy of his report slam- ming the provincial Special Investigations Unit. operations and those of the SIU. "The AG's office has been way too cozy with the SIU," he says. "It has not allowed it to flourish, has not provided sufficient sup- port to its independence, from the beginning has been micro- managing the SIU. That hasn't allowed the SIU to do its job." The AG announced a number of steps it plans to take in response to Marin's report. It has earmarked $700,000 for eight new SIU staff- ers, and an unspecified amount of money for a "mobile investigative centre" to give the unit an indepen- dent presence at crime scenes. The AG also will follow Marin's call to appoint SIU directors to fixed, five-year terms, and plans to report back to the ombudsman ev- ery six months on implementation of his recommendations. "I would like to thank the om- budsman for his report, as well as the community groups and police organizations who shared their ideas on how to improve the sys- tem," said Attorney General Chris Bentley in a prepared statement. "I have confidence in the leadership and the men and women of the SIU. I also have confidence in the police officers who work hard every day to keep our streets safe." This latest report marks the seventh time the SIU has been investigated since its creation in 1990 to counter public discom- fort with police investigating their own actions. Marin, who led the SIU for two years in the late 1990s, said in the report that governments tend to focus on the people have been through the [SIU] director's role without significantly altering the success rate of the SIU in establishing itself as a neutral, effective, civil- ian oversight body," he says. Ontario Bar Association past president James Morton says Marin's report overstates the SIU's shortcomings. "My sense is there may be a little more colour in his language than is necessarily justified by the facts themselves," says Morton. "My experience with people who have had run-ins with the police . . . when you get to the bottom of what actually happened, certainly force was used to subdue them, but candidly, in the circumstances it was appropriate." LT a "terrific lawyer and he's dedi- cated to neutrality" — suggested it doesn't matter who the direc- tor is if the government won't provide new legislative powers. "A number of very good October Specials Debt Litigation Michael G. Tweedie Proceedings Christopher Wirth Interlocutory & Wales, Scotland, and Ireland as jurisdictions in which the pro- fession has in the past several years effectively lost the privilege of self-regulation. "A major contributing factor was the failure, both real and perceived, of these law societies to regulate in the public interest and adapt to change," stated the report. It also suggested that recent government initiatives imposing "intrusive regulation on the profession, such as anti-money laun- dering and client identification requirements" could be viewed as threats to the independence of the profession. "While the legislative mandates may operate to achieve a gen- eral societal benefit, they may be implemented through a process that effectively erodes the profession's deeply held values of inde- pendence and client loyalty," stated the report. LT www.lawtimesnews.com 10/1/08 9:11:14 AM from the Bench The Honourable Justice R.F. Reid and The Honourable R.E. Holland Advocacy: Views A Lawyer's Guide to Managing the Media Mary Jollimore

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