SIU Act strengthens oversight, says police watchdog

A “major” overhaul to the laws governing Ontario's police watchdog agency is being met with praise from the police union heads who helped draft the new legislation, and with cautious skepticism from some key stakeholders.

The Special Investigations Unit Act came into effect Tuesday after the independent civilian agency operated for more than 30 years under the Police Services Act, with some significant changes to the new legislation that the SIU said “will serve to strengthen civilian oversight of law enforcement and will result in greater transparency.”

The legislation expands the SIU's mandate to investigate all instances where an officer fired at a person, whether or not the person died or was seriously injured.

Under the former legislation an automatic investigation was triggered in any police-involved incident where there was a death, serious injury or an allegation of sexual assault.

Sexual assault allegations under the former legislation fell under the “serious injury” umbrella.

Under the new Act, sexual assault is now an independent category of cases triggering the SIU's mandate.

“Historically the cases we see usually involve somebody who is in a position of power, which a police officer certainly is, and quite often the victim can be less likely to be seen as reputable (in the criminal justice system),” said Nicole Pietsch with the Ontario Coalition of Rape Crisis Centres.

“If you can't stand up as a witness that will be believed, it's really challenging for anything to go the distance in the criminal justice system, and that's particularly true of sexual assault.”

Pietsch said in cases of sexual violence, that power dynamic can leave “potential for exploitation … and offenders and victims know that.

“When we're talking about professionals, whether doctors or lawyers or police officers, all those people hold social capital, and they know it, as do their victims,” Pietsch said.

“Most professionals do not exploit those power differences, but certainly we've seen this happen in every field. I think it's wise to have institutions that have preventative measures in place, so I would hope these (legislative) changes are reflective of that.”

Bruce Chapman, president of the Police Association of Ontario, said members across the province “wholeheartedly” support the new legislation.

“There's a tidying up of the language (around sexual assault) and I think it's providing a clarity to it,” said Chapman.

Police unions have “no issues with the SIU conducting a fair, impartial independent investigation into an allegation against a police officer,” Chapman said. “Similar to a police officer doing that (investigation) when a member of the public comes forward.”

The new act also provides a “defined definition of a serious injury,” Chapman said, and has “far greater clarity for everybody, stakeholders, police and the public.”

While the previous legislation did not differentiate between on-duty and off-duty police officers, the new act specifies the SIU can only investigate if an off-duty official “was engaged in the investigation, pursuit, detention or arrest of a person or otherwise exercised the powers of a police officer, special constable or peace officer.”

The SIU can investigate off-duty incidents if it involves police-issued equipment or anything issued to the officer in relation to duties.

The new legislation also requires the SIU to explain delays in its investigation at each 30-day interval if an investigation extends past four months.

The former “duty to co-operate” that bound police officers to SIU requests is now a “duty to comply”, which applies to all officers.

Anyone who fails to comply “is guilty of an offence and could be subject to a penalty,” the SIU stated.

Chapman said a number of recommendations were implemented from the 2017 report of an independent police oversight review conducted by Justice Michael Tulloch.

“It's a reflection of the recommendations in Justice Tulloch's report, and what we've heard from the public,” Chapman said. “You'll hear some people say it doesn't go far enough, but I think it's provided a fair balance and accountability to our police professionals.”