Law Times

Law Times • may 31, 2010 NEWS PAGE 3 New police complaints system gets boost Independent office aims to increase public confidence in investigations BY RON STANG For Law Times WINDSOR — Students at the University of Windsor's law school are fanning out across southwestern Ontario in a bid to boost the province's new police complaints process. Through the new Law En- forcement Accountability Proj- ect, those involved aim to ag- gressively promote the public's right to bring forward com- plaints of unethical or abusive police conduct. The project, headed by pro- fessor David Tanovich, seeks to not only get the word out about a new provincial police com- plaints process; it also aims to help people file their cases with the new arms-length body, the Office of the Independent Police Review Director, that investi- gates public complaints. Working on a $50,000 grant from the Law Foundation of On- tario, and with as many as 50 stu- dents signed up as pro bono staff, the project involves giving pre- sentations at community centres and meeting with local law en- forcement agencies to talk up what has been described as break- through legislation that provides more objective and transparent oversight into police complaints. "I think this is an excellent way to try and make the [complaints] system move forward in a non- adversarial way," Tanovich says. For years, the public has had the right to make complaints about treatment by police. But that meant walking into a police station and filling out a complaint form. Officers then did their own investigation. Consequently, re- sults sometimes received a dubi- ous reception because of a per- ceived bias by police investigating themselves. Even though there was an appeal process at the pro- vincial level, police still handled the intake role and had vast con- trol over the entire investigation. With the new office, which the government established last fall, the system is "no lon- ger controlled by the police," Tanovich says. Instead, members of the public now apply directly to the new Judge raps Heydary Hamilton for delay BY MICHAEL McKIERNAN Law Times A judge has awarded costs against a Toronto-area law firm for holding up an application for an assessment of accounts by a former client unhappy with the service she received. In an endorsement this month, Superior Court Justice Thomas Leder- er awarded the applicant almost $7,000 in costs and scolded Heydary Hamilton PC for failing to respond to the application in a reasonable time and attempting to have proceedings adjourned on short notice. "Lawyers and judges do not act in a vacuum," Lederer wrote. "They function within a society. The actions they take and decisions they make should bear in mind the public impact of what they are. Parties who wish to question accounts should not be prevented from doing so by the cost of the process of assessment." The endorsement is an important one for counsel, says Bruce Baron, a lawyer with Miller Canfield Paddock and Stone who represented the applicant. "With the costs of litigation being so expensive, it's so easy to allow costs of the litigation to quickly exceed the benefit of that litiga- tion, and in the context of an assessment hearing, that is extremely true. It sends a message that we need to put our clients first at all times." The applicant, Elisa Kennedy, retained Heydary Hamilton and paid the firm almost $29,000 in retainers. She received 13 accounts totalling $27,000, which came out of the retainer, but Kennedy was unhappy with the firm's work on her case. Kennedy eventually retained a new lawyer and in February ap- plied for an assessment of accounts. When the firm refused to con- sent, material for the application was served in mid-March. Almost two months passed before Heydary Hamilton's Tanya Walker re- sponded, saying the lawyer concerned had left the firm and that she would be unable to attend court on the upcoming date set for the application. The firm asked for an adjournment, which Baron refused. Eventually, a junior lawyer appearing in Walker's place told the court she couldn't argue the motion. "One wonders what significance the firm is giving this matter when it fails to respond until it was impractical to prepare, seeks to oppose the motion on the basis that it wishes to have the merits of the assessment adjudicated by the court, and then effectively assumes an adjournment will be granted by sending a lawyer who cannot ar- gue it," Lederer wrote. "To grant this adjournment would be to place greater value to the failings of the firm than the reasonable expecta- tions of its former client that she can obtain an assessment of the accounts at a reasonable cost with a reasonable time." Lederer allowed the application for assessment, ruling that since the payments were made in retainers, they were not made in re- sponse to accounts for work done, and Kennedy therefore should have a chance to set them against the service. Heydary Hamilton couldn't be reached for comment by press time. your LAW OFFICE PRODUCTIVITY source Buy only the Letters or Numbers you Need! • Available in complete sets or packages of individual numbers or letters • Sets from 1-2000, letters A-Z, Buff or White • Custom numbering up to 99999 and double alpha digits available • Bulk order specific numbers or letters to reduce waste, Indexes up to 30% post consumer content Available FREE Samples think serious matters will be in- vestigated by [the office]." Where Tanovich's students and Frank Miller welcomes the new system but is skeptical about the continuing role of police in investigations. office either through its web site or through forms available at ServiceOntario kiosks, police stations, community centres, and legal aid clinics. The office determines who conducts the investigation, whether it does so itself or wheth- er the police service in question or another police department takes on the case. But while it says police will still handle the majority of cases, Tanovich notes the key difference with the new system is that "there will be over- sight, there will be the ability to review a decision about whether or not it's a serious matter." In his opinion, it was a crucial breakthrough to move the intake process out of police hands since people will no longer face a pos- sibly intimidating encounter at the detachment. Also, he says, "I the project come in is in helping facilitate this process. Students, who have received training from the office, now assist people in understanding the process and filling out complaint forms. "So obviously, I think it's fair to say that their complaints will be more focused and hopefully will contain more information than might have otherwise been the case if they had just filed on- line," he says, adding there will be no attempt to lead clients or influ- ence what they write. "We're not doing any investigations; we're not representing complainants." With police services also hav- ing signed on to the new sys- tem, Tanovich thinks skepticism about the results of internal in- vestigations will get serious con- sideration. "If [the office] says, 'Look here, I think there are reasonable grounds for miscon- duct,' I think the police chief will take that very seriously." In the meantime, while the project will be integral to law students' training, their participa- tion isn't for credit. Since Wind- sor's law school puts a priority on experiential learning, having students meet with complainants and deal with the types of socio- economic pressures they face will provide an understanding of how the law works or doesn't work for the public. It will also help them develop interviewing skills while increasing confidence and profes- sionalism, according to Tanovich. For third-year Windsor student Natasha Carew, the project fits perfectly with the school's access- to-justice philosophy. "I've be- come constantly aware of various issues people have had with the police just from them telling me their stories," she says. But not everyone has full con- fidence in the new complaints process. Frank Miller, who heads the local branch of the Crimi- nal Lawyers' Association, says that while attempts to improve the system are valid, he remains skeptical, especially since police will still investigate the vast ma- jority of complaints. "It's incon- ceivable that someone would be completely able to eliminate the possibility of any institutional bias. The province doesn't seem to want to bankroll any kind of large-scale independent investiga- tor. And the police don't seem to be interested in having anything of that nature around." Nevertheless, civil litigator Andrew Murray of Lerners LLP in London, Ont., thinks raising the profile of police complaints may be analogous to the break- throughs in challenging other formerly secretive organizations like religious or athletic groups in sexual abuse cases. "There was a time when peo- ple would not make complaints against the Catholic church," says Murray, who is currently representing two Windsor police officers. "And there's now been a series of high-profile civil litiga- tion actions that seem to have brought all kinds of things out of the woodwork. And I think it has a lot to do with the lid being lifted off." 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