A closer look at Ontario’s Special Investigations Unit, how it operates, and the data it collects

Click to play video: 'SIU director speaks 1-on-1 with Global News anchor Farah Nasser'
SIU director speaks 1-on-1 with Global News anchor Farah Nasser
WATCH ABOVE: SIU director Joseph Martino speaks one-on-one with with Global News anchor Farah Nasser – Jul 7, 2020

UPDATE: The Special Investigations Unit Act, which covers many legislative changes covering the SIU, came into effect as of Dec. 1.

As Ontario’s police watchdog prepares to begin collecting race-based data as part of a larger series of reforms, the agency’s director says there aren’t plans yet to proactively track data pertaining to cases involving mental health.

Joseph Martino, a lawyer who previously served as the deputy director of the province’s Special Investigations Unit (SIU) before being promoted to director at the beginning of 2020, made the comments recently during a wide-ranging, one-on-one interview with Global News anchor Farah Nasser.

“We’ve taken a look at shooting cases over a period of years, over about a decade’s worth of cases and from 2000, 2010, and we found that in a very significant percentage of those cases mental health was very much an issue. There were indicia of mental health issues in those cases, so we know that mental health is a real issue with respect to policing,” he said.

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“We have not been systematically collecting information in terms of mental health. That’s perhaps something that we can also look at and that’s not something that I would foreclose. But until such time as we do have a policy in place with respect to that, our reports, our data are open to the coroner, for example, and every human rights commission, or other researchers wishing to look at this issue.”

Martino said currently mental health is looked at on a case-by-case basis in terms of police policies that deal with the response to mental health calls.

“We’re very transparent. If a charge is not laid, a report is issued and the public can see the ways in which the SIU at least understood mental health having a role in the interaction,” he said.

The comments also come amid multiple recent, high-profile instances of racialized residents in mental health crisis who have died after having interactions with police.

In April, D’Andre Campbell was Tasered and fatally shot by police at his Brampton home after his family said he called 911 to look for help as he was experiencing a mental health crisis.

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In May, Caleb Tubila Njoko fell from his 15th-floor apartment in London, Ont., and died. His death came after his mother said she called 911 with respect to concerns about his mental health.

Later in the month, Regis Korchinski-Paquet fell from her 24th-floor apartment building in Toronto shortly after police were called for assistance. A lawyer for her family said Korchinski-Paquet’s mother called 911 because her daughter was in distress over a family conflict and she asked for assistance. Thousands protested in Toronto against police brutality and anti-Black racism in the days following Korchinski-Paquet’s death

In June, Ejaz Choudry was fatally shot by police at his Mississauga apartment. Choudry’s family said he had a schizophrenic episode and wasn’t taking his medication, adding they called for help after Choudry threatened to harm himself. Choudry’s death sparked multiple protests in the city and his family called for a public inquiry.

All of these deaths are still under investigation by the SIU, the independent civilian agency tasked by the Ontario government with conducting criminal investigations and reviewing the conduct of police officers who respond to situations where death and serious injury have occurred or where there are allegations of sexual assault. Martino said since the investigations are ongoing, he wasn’t able to discuss the specifics surrounding those deaths.

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Critics of the agency have long complained about lengthy investigation periods as well as the amount, and timeliness, of information related to investigations being released by the SIU — complaints Martino said he takes seriously and is working to address.

Questions have also raised about the idea of former officers investigating current officers, which is an area Martino committed to providing more transparency on when pressed by Nasser.

As a part of the Ontario government’s changes to police oversight in the province in 2019, the SIU will see some aspects of the agency change later this year.

SIU set to collect race-based data, director acknowledges systemic racism in policing

When it comes to interactions with racialized residents and the police, the Ontario Human Rights Commission has been examining SIU data in recent years. An interim report released in 2018 looked at racial profiling and interactions between Toronto residents who are Black and the city’s police service.

It found that even though 8.8 per cent of residents are Black, an analysis of SIU data showed “Black people were overrepresented in use-of-force cases (28.8 per cent), shootings (36 per cent), deadly encounters (61.5 per cent) and fatal shootings (70 per cent).”

However, the SIU currently doesn’t proactively track and report race-based data. In October, that practice is set to change and the SIU will be collecting information on race.

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Martino said the agency is close to having a policy in place, noting the race of those who have injured or died as well as the officers who are the subject of an investigation will be collected. He said there previously wasn’t been a requirement to collect the data, but noted the thinking “has evolved over the course of the years.”

“We have a real understanding that if we’re going to make inroads on issues of systemic racism, anti-Black racism, anti-Indigenous racism, that we really need to know what we’re talking about. We really need to get a firm handle on what the data is telling us,” he told Nasser.

When asked by Nasser if systemic racism is an issue in policing, Martino described it as a societal issue.

“When you look at the disparate outcomes that continue to exist in our society with respect to the Black community, the Indigenous community, I think you’d be hard-pressed to argue against the existence of systemic racism,” he said.

“It would include oversight. We are part of the system, we are part of the society, so we need to do what we can constantly every day to combat those challenges. We’re all challenged by issues of systemic racism, all of us.

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A closer look at the composition of the SIU’s investigations staff

Compared to other police-related services and agencies in Ontario, the exact makeup of the SIU and how the organization operates isn’t as well known.

Nasser raised questions about who makes up the SIU, what the positions involve and the identities of those who are tasked with investigating police in Ontario. While Martino provided a high-level look, it wasn’t until a few days after the interview that the SIU posted a centralized, more in-depth breakdown of its investigations staff on its website.

Of the 51 investigators currently working for the SIU, there are 13 lead investigators who coordinate teams that look into incidents (there are two vacancies as of the beginning of July). They are also tasked with conducting the major interviews. The agency said only one of out the 13 has a background in Ontario policing while another worked as an officer outside of Canada and one worked as a RCMP officer.

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However, when it comes to “as-needed” investigators (based across Ontario and are tapped to help after incidents arise in different regions), 23 out of 28 personnel have backgrounds in police while five were civilians. All 10 of the SIU’s forensic sciences investigators previously worked at police agencies.

In terms of the identities of those who work as investigators, the agency said those aren’t based on how the personnel identify themselves but rather are “based on perception.” Nine out of 51 investigators are persons of colour and only 10 out of 51 were identified as women.

When asked about the diversity of the SIU’s investigations staff, Martino admitted the agency has work to do.

“No, I think we need to do more to recruit investigators that reflect the diversity of Ontario,” he said.

SIU to be required to speed up investigations, report delays

As a part of the province’s changes to how the SIU operates, the agency is now required to complete investigations within four months of the initial incident or report. Martino said the current average turnaround time is 128 days.

There have been many calls, including from victims, their friends and families, and police chiefs, to have more timely investigations. Martino called the criticisms “legitimate.”

“No one is served by lengthy investigations. Complainants need answers. Families of loved ones who have passed need answers. Subject officers need closure,” he said.

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“The judicial system is not helped when investigations take as long as they have, so it’s legitimate criticism. We need to do better. It is a commitment of mine that we will do better.”

Director responds to concerns about transparency, delayed release of information

Nasser asked Martino about the ability for “subject officers” (the officer or officers whose actions may have resulted in a person’s serious injury or death) to withhold their notes and to refuse being interviewed by the SIU versus “witness officers” (an officer or officers who responded to the call but wasn’t determined to have been involved in a person’s serious injury or death) who are required under law to be interviewed by SIU investigators and to submit their notes.

Martino said under the law “subject officers” have the same legal protections as civilians.

“We do have the right to remain silent as the focus of that investigation, the right not to have to incriminate ourselves, so that right has carried over into the sphere of a civilian investigation of police,” he said.

“We have to make a determination based on the evidence we have and bear this in mind as well. Unlike your ordinary civilian witness, for example, police witnesses must speak with the SIU. They are under a legal duty to speak with the SIU.”

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Of the cases reviewed by the SIU, Martino said three-to-five per cent of the instances result in criminal charges. Under the law, he said he has to have “reasonable grounds” to believe a criminal offence was committed. He went on to say that even if a criminal charge isn’t laid, he can still call for further actions.

“So (if) I cannot lay a criminal charge, that is not to suggest that there may not have been issues with the police response to the incident. There may not have been problem areas that need to be addressed, perhaps in other forums,” Martino said, citing examples such as disciplinary hearings, administrative investigations and coroner’s inquests.

Meanwhile, Martino also addressed criticisms about the delay in releasing information after an incident and while the investigation is still ongoing. He pointed to recent examples where he said he’s tried to push agency staff to release more fulsome statements in the early stage of the investigation, but added he and the SIU have limits under Ontario law as to how much can be communicated.

“I have the rules within which the SIU operates, and I will push those rules to their legitimate limits … and I maintain that working within those limits that we’re able to do professional, competent criminal investigations,” Martino said.

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“If you’ll look at chiefs of police, they are also under limitations in terms of what they can say about a case and that is frustrating to many of them who would like to go out there to the community to address some of the issues that they have in the wake of an incident. But what we know is that oftentimes when there is a premature release of information, sometimes it’s inaccurate information and I don’t think that does anyone any good.

“Here’s the other problem: When police release some of that information, it lends itself to a critique that perhaps they’re trying to frame what exactly happened when that may not be what they’re doing to try to issue honest information.”

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