What happens if police are accused of crimes?
Most complaints go nowhere, but a few are tried in courts or probed internally
You can have someone who, in theory, is acquitted at the criminal trial ... but still might be facing a disciplinary matter (at the internal police level)
REGINA It doesn’t happen often, but sometimes the people who investigate crime end up on the other side of the investigation.
Police accused of criminal offences face two types of inquiries: criminal and internal disciplinary. Both usually take time and both are necessary to sort through what happened and what penalty, if any, should result.
Veteran Regina lawyer Aaron Fox has represented several police officers accused of running afoul of the law, and says there are aspects of the processes not well-known to members of the public.
“Certainly, police officers, your chances of having a complaint filed against you now are pretty good,” he said. “There’s tons of them filed. A lot of them are kind of bogus or used as bargaining chips to get a better deal because (the complainant is) facing a charge or something like that, and they don’t go anywhere. But some of them are legitimate complaints, and there’s disciplinary charges, appropriately so.”
The Public Complaints Commission, an independent panel of non-police individuals appointed by the province, receives and investigates complaints against municipal police officers before providing its findings to the appropriate police service.
The commission completes yearly reports, available online, detailing the number and type of complaint received as well as its findings.
Between April 1, 2018, and March 31, 2019, a total of 157 complaints were received across the province. Of those, just six were considered substantiated. Two were determined unsubstantiated (where the allegation could not be proved or disproved) and 46 were considered unfounded (unsupported by evidence). Another 35 fell under a section of The Police Act in which “circumstances did not require investigation or, during the course of the investigation, it was determined that circumstances no longer supported the continuation of the investigation.”
Other PCC investigations were not yet finished while still more resulted in withdrawals or informal resolutions.
HOW ARE POLICE INVESTIGATED?
Terry Hawkes, executive director of the Saskatchewan Police Commission, explained that when a criminal allegation is made against a police officer, the police service employing the officer typically will first launch a criminal investigation.
“It will set aside the discipline investigation and just focus their work on a criminal investigation, and do that criminal investigation in a similar manner that they would conduct any criminal investigation,” he said.
In general, it’s common for police forces to conduct investigations of one of its own members, except in cases where it’s deemed a conflict or where the service doesn’t have adequate resources to carry it out (such as not having a professional standards section). Particularly serious incidents also might be sent to another agency.
Cases such as the recent ones involving Regina Police Service (RPS) Const. Scott Ash, since sentenced for an impaired driving-related offence, or Cpl. Colin Magee, sentenced for an on-duty assault, typically would be investigated within the RPS.
Once the matter is investigated, it’s sent to the Crown prosecutors’ office for review, as mandated by The Police Act. If the Crown recommends it, the member is charged.
The matter then will proceed through the court process like every other criminal case. There, the officer has the option to take the matter to trial or simply plead guilty. Sometimes, depending on the circumstances of the case, the Crown might opt to send the matter into an alternative measures program. Such programs allow accused individuals — whether a police officer or a civilian — to go through the mediation process which, if successfully completed, leads to the withdrawal of the charge.
Internal investigations also begin when a criminal allegation is levelled at a police officer, but often don’t fully ramp up until the criminal process is complete. Disciplinary proceedings can include a hearing and, if discipline is merited, can include a range of sanctions from dismissal to suspension to reprimand to “advice to future conduct.”
RPS spokeswoman Elizabeth Popowich recently commented on the reason for separating the two types of proceedings.
“Under the criminal side, (the officer) is like any other citizen and he can either give information or choose not to, the way anyone could in their own defence,” she said. “But on the administrative side, as an employee of the Regina Police Service and subject to The Police Act and so on, he’s compelled to give information — all of it ... (The officer) then really wouldn’t have the same rights as any other person under the law.”
Fox added there is one other significant difference between the two types of investigations, with the criminal side requiring proof of guilt beyond a reasonable doubt.
“On a discipline matter, the onus of proof is only on a balance of probability, so a much lower standard is required to prove the discipline matter than on a criminal matter,” he said. “And that’s why you can have someone who, in theory, is acquitted at the criminal trial because they haven’t been able to prove guilt beyond a reasonable doubt but still might be facing a disciplinary matter.”
HOW ARE POLICE SANCTIONED?
Fox said while police services often opt to hold off on administrative investigations until criminal proceedings wrap up, there are times when services have forged ahead before that.
One such case involved Const. Robert Power, who was charged criminally in 2012 with assault causing bodily harm related to an on-duty incident and ultimately convicted. The Regina officer initially was fired for providing false information about the incident, but won an appeal and was ordered reinstated by a Saskatchewan Police Commission-appointed hearing officer in late 2014.
Copies of the Power decision, and other cases decided by the commission, are available on the commission’s website.
A Saskatoon case also saw an officer, Jarett Gelowitz, reinstated earlier this year after three criminal charges of on-duty assault were either tossed out by the Crown or resulted in acquittal after trial.
Gelowitz — whose reinstatement was a joint submission between his lawyer and Saskatoon police to a hearing officer — admitted to several disciplinary offences, including using excessive force. He was placed on administrative duties and will face a year of probation after that.
“You can get situations where the chief looks at it and says, ‘This is a serious enough matter, I’m going to dismiss the member right now,’ ” Fox said. “That doesn’t happen very often. It does have to be serious and the chief has to be pretty confident in the grounds he’s got because there is a right of appeal and so on. More often than not, the question is, ‘Do I suspend the member or do I just reassign them?’”
Often, in reassignment situations, officers will be placed in roles where they have limited or no interaction with the public, such as evidence management.
Fox said other conditions can come out of a disciplinary hearing, in cases where an officer’s addictions or mental health — such as PTSD issues — are at play.
“Most police services are much more alive to the fact that they’re to be vigilant for underlying issues,” Fox said. “And if those underlying issues are precipitating what has happened, then just reassigning the person or putting them in admin duties or whatever, you’re not dealing with it. So you’ve got to address those underlying issues. And so it does become more a question of treatment and counselling than it does punishment so much. But there’s clearly a punishment element to it.”
On the criminal side, many convictions against police officers have resulted in absolute or conditional discharges. Discharges — also handed out to civilians — mean the individual can say he or she doesn’t have a criminal conviction for that offence. In the case of conditional discharges, the person has to successfully complete terms over a prescribed period before the discharge is registered.
Discharges were handed out to, among other officers: Power; RCMP Cpl. Dean Flaman on an assault charge; Saskatoon Police Service Const. Robert Brown on a sexual assault charge; RCMP Const. Randy Mckay, also on a sexual assault; and Estevan Police Service Const. Mohammed Khan on an assault.
Some have lost their jobs while others were still subject to internal investigations.
Fox believes discharges are sufficient in many cases, given officers typically don’t have criminal records and the circumstances of the offences amount to an isolated incident, contain underlying reasons (such as addictions or PTSD) and are similar to cases in which civilians have received discharges.
“I think generally the court will look at a discharge much the same as why they would look at a discharge if you’re dealing with a guy who gets in a fight with his neighbour and punches him in the nose or a circumstance like that,” Fox said.
“Where you see police officers not necessarily getting a discharge would be if there is clearly gratuitous violence that’s pretty excessive if there is nothing to do with policing, if there is a large element of dishonesty ... some breach of trust or something like that.”
He said in cases like those, jail sentences are not unheard of.
Fox added many minor common assaults, in cases in which civilians without records are charged, don’t result in conditional discharges but referrals to alternative measures, suggesting the Crown and the courts treat police-involved assaults more seriously.
Regardless of penalty — whether criminal or disciplinary — Fox said police officers pay a long-term price for wrongdoing, whether through job loss, being passed up for promotion or even receiving demotions.
“It can have an impact going forward on what you’re going to be able to do, so it does have some potentially long-term consequences,” he said of officers who do keep their jobs. “And really, for the balance of your career, you’re still going to have to have that mark on your record.”