Activist ombudsman trumped by police
Let us take you back, once again, to the utter bamboozle of policing at the G20 Summit in Toronto five summers ago.
The subsequent investigation by retired judge John Morden took a strip off the Toronto Police Services Board for manifold failures in its oversight of executive police decisions that resulted in the trampling of civil rights.
In his sharply worded report, Morden described the board as a “voiceless entity” in the run-up to the summit, “a mere bystander in a process it was supposed to lead.” Instead of making the tough policy calls, the board deferred mutely to then-police chief Bill Blair.
In part, I would suggest, this arose because the board was getting legal direction from the same lawyers who were advising Blair. The conflict of interest was blinding.
Morden wrote: “The board could have asked questions about how the plans for the G20 summit were unfolding, what specific policing role the Toronto Police Service would be discharging during the G20 summit, or how decisions about critical aspects of policing the event were being made, but it did not.”
Although the Toronto board, specifically, has stiffened up in recent months — primarily over its objections to the controversial matter of carding and the directives for usage that the departing Blair simply refused to implement — history has shown us that civilian oversight of policing is too often a timid affair. They rarely stand up to chiefs. And oversight of oversight is sorely lacking from the colossally ineffective “independent” Ontario Civilian Police Commission, an innocuous and largely invisible government body.
They are all cut from the same worsted cloth. Ontario Ombudsman André Marin produced his own scorching report on the G20 horrors: Caught in the Act. Among other conclusions, it flayed premier Dalton McGuinty’s Liberal government for using obscure 1939 legislation to pass a secret regulation that permitted police to arbitrarily detain people near the summit of world leaders.
Had Marin been vested with oversight of the Toronto board, that was unlikely to ever have happened.
Until recently, the ombudsman believed police board oversight was included under expanded powers to investigate under the Accountability and Transparency Act passed by the Legislature last December. Uh-uh, as it turns out, and as reported this week by the Star’s Rob Ferguson. The Liberals had quietly excluded police boards from the equation. By regulations of the Act, the government can “claw back,” as one insider explained, what’s already been given.
Pshaw, claims Treasury Board president Deb Matthews, who defends the changes to reporters Monday. “It’s not a loss of oversight, it’s that it wasn’t added.” Why not? Try this on for size: Some two months ago, police chiefs of the so-called “Big 12’’ — the larger police forces in Ontario, including Toronto, Hamilton, Peel and Niagara — requested clarification of the ombudsman’s enhanced jurisdiction over “municipal sector entities” and asking the province to enact the regulation exempting police boards from the Ombudsman Act.
As Frank Scarpitti, chair of the York Region police board, afterwards wrote to Wynne on April 29: “Given that police services boards are exempt from the accountability and transparency provisions set out in the Municipal Act (section 223.1), it would be inconsistent to include boards within the scope of the Ombudsman’s jurisdiction.”
This, despite the fact that at least some police boards, particularly from smaller jurisdictions, actually welcomed ombudsman guidance and assistance. Niagara board chair Bob Gale, for one, was receptive. “I have no problem with him having oversight of the police board; as long as we don’t have to pay for it, that’s great,” Gale told the St. Catharines Standard in February. “We were told that we can’t get involved in operations, but the definition of operations is open to interpretation. We’ve met other boards, and people are afraid to ask questions — we are not.”
What the Big 12 police chiefs don’t want is Marin asking questions of the boards that have, traditionally, been so cowed by police brass. And Premier Kathleen Wynne’s Liberals seem keen to keep the chiefs happy, even if it flies in the face of the Transparency Act’s intentions.
Keep in mind that the Toronto board — largest in Ontario — showed itself to be absolutely clueless in the G20 mess, and they’re under constant media scrutiny. What then of other jurisdictions where decisions aren’t subject to much outside examination and chiefs enjoy immense sway? “The tail wagging the dog,” said one informed source. “The police are much cleverer and work around boards all the time. A perfect example is carding. Blair said, no, I’m not going to stop, even though the board was trying to call them off. And the next day, carding was back in.”
A while ago, Marin received a list from the government of about a dozen areas that would be excluded under the act. Some, such as library administration, provoked no disagreement. But Marin — who declined to be interviewed by the Star — clearly wants police boards in his ombudsman portfolio.
The Big 12 and the government maintain that police boards already are subject to extensive oversight from the OCPC, the Special Investigations Unit and the Office of the Independent Police Review Director.
This is disingenuous. The SIU investigates police officers involved in civilian deaths and serious injuries, not police boards. The OCPC has the authority to disband boards that have gone rogue but doesn’t dissect operational matters. And the OIPRD investigates — infrequently — public complaints against cops, not boards.
Confusion over when boards can intervene and set policy for operational matters, under the Police Act, continues. One source told the Star that, following Morden’s scathing report, the Toronto board requested clarification from the government: Can we get involved in operational issues? No response, apparently.
Apart from placating police chiefs, the Liberals may also simply have had a bellyful of Marin, who has been needling the government with his proactive tendencies. The hardhitting ombudsman took to Twitter last month to push for clarity on his job status. Hours before his contract expired, an extension was approved until September. Marin has been forced to reapply for a third fiveyear term, up against other contenders who’ve thrown their hat into the ring. An all-party hiring committee will make the decision.
Some view Marin as power-mad. But he’s indisputably been a booming voice for government accountability.
It seems police chiefs can yell louder. Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.