TORONTO – Back-channel chats that led Ontario’s police watchdog to set aside its own finding of misconduct against an officer were inappropriate and undermined the integrity of the process, an appeal court has ruled.
In a decision this week, Divisional Court said the Office of the Independent Review Director had compromised its independence and ordered it to reinvestigate a complaint against a Toronto constable from scratch.
“As is emphasized by the name of the decision-maker, the Director of the Office of Independent Police Review was obliged to conduct an independent investigation and reach an independent decision,” the Divisional Court panel said in its ruling.
“Here, in circumstances which belie the independence of the OIPRD, the director had undisclosed discussions with the TPS about changing his decision and, ultimately, he did change his decision.”
The case arose in April 2014 when Toronto police searched the Stanley family home based on a tip about the presence of a firearm. None was found. The Stanleys alleged police misconduct, including that Const. Chris Howes had stomped on one of the family member’s head or neck while they were lying handcuffed on the ground. Among other things, they alleged assault, that police deliberately destroyed their property and made racial slurs.
Following an investigation, the independent review director in March 2015 reported finding enough evidence to support an allegation of “serious misconduct” against Howes. The director notified the family and said the file had been passed onto police for disciplinary action.
In response, an inspector with the police service contacted the watchdog via phone and letter to complain about its decision. The upshot, according to the court file, was that the review director, Gerry McNeilly, agreed to reopen the investigation.
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McNeilly then notified the Stanley family in May 2015 that the investigation had been flawed, was being reopened, and the findings suspended. He made no mention of the conversations with Toronto police.
In December 2015, McNeilly told the Stanleys the investigation had now found all allegations of misconduct to have been unsubstantiated.
The Stanleys turned to Divisional Court, asking that the second report be quashed, the original misconduct conclusion reinstated, and the Howes allegations be sent to a disciplinary hearing.
The review director argued the Stanleys had been notified about the decision to reopen the investigation and were reinterviewed as part of it. The agency also maintained it had simply taken a “second look.”
In its decision, the court found the secretive back-channel communications between the director and police were inappropriate and unfair. Instead of Toronto police initiating a disciplinary hearing against Howes, they had “undisclosed discussions with the director” about changing his decision, the court said.
“Independence is central to the OIPRD’s role in providing a public complaints system against police officers in Ontario,” the court said. “These undisclosed communications give rise, at least, to an appearance of unfairness and compromise the independence of the director.”
As a result, the court set aside both decisions of the director relating to Howes and ordered a fresh investigation by an investigator other than anyone involved in the earlier proceedings.
Toronto police did not respond to a request for comment. However, Selwyn Pieters, who acted for the Stanley family, said the court decision was important to complainants across the province. The court, he said, had stressed the principle of the watchdog’s independence.
“The public called for independent investigations free of police interference,” Pieters said. “It is rather perplexing that the OIPRD allowed the Toronto police to interfere with, and influence, its decision-making process without notice to the complainants.”
McNeilly said the office would review the decision and decide on a course of action in the coming days.