Policing's Bad Apples: When The Rot Eats Through The Barrel | Unpublished

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Valarie Ann Findlay's picture
Ottawa, Ontario
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Policing's Bad Apples: When The Rot Eats Through The Barrel

June 25, 2017

Policing's Bad Apples: When The Rot Eats Through The Barrel

The absolute cause of 2016 being the most violent year for Ottawa in recent history will remain unknown but it can be assured that the rising crime rate and rising crime severity index forebodes more of the same. In 2016 Ottawa saw 24 homicides, which is an increase by seven from the previous year, putting the homicide rate - the number of homicides per 100,000 people - at 2.6 rivalling that of Toronto.

Conversations with police service members on internal moral and what they endure and witnesses among the ranks - sexism, racism and witnessing various forms of misconduct - combined with news coverage on the high rate of unfounded sexual assault cases paints an ugly picture that is not being addressed - still. From there, three interdependent areas continually crop up - employee dissatisfaction, failing organizational performance and the impacts on officers and Ottawa's public safety.

Compounded by recent trends in police leadership, where active denial and avoidance is acceptable in driving an agenda, the constitutional and philosophical divide between the policing executive, their rank and file and the public widens. Regardless of the profession, it's not hard to accept that if an employee experiences or witnesses unfair treatment, inequity, harassment, discrimination and, in some cases outright abuse, with no mechanism for complaint, productivity and self-esteem plummets.

Some will rise above it but usually only for a relatively short period time and some, due to exhaustion and apathy, will put forth only the bare minimum as a means of self-preservation and stress management. And this is where the public pays - from poor service to rising and out of control crime. In those cases, it's not you and it's not them. It's the others. The others, of all ranks, that the good officers have to survive in the midst deteriorating morale and service.

When police and police service board members begin to vent off their experiences with lazy, careless, stone-walling, misogynistic and racist behaviour of some colleagues, is it foolish to think these behaviours are contained to the organization and do not impact quality of service and are not exacted on the very public they serve? Or is it foolish to ignore the anecdotal connection? Resolving this cultural blight will be a brutal road: it has been left unattended for so long that it has evolved into a complex, multi-faceted barrier to acceptable service for the public and fair treatment of those officers who strive to do an exemplary job.

A stark lesson should be taken from the RCMP on letting the people who created the organizational problem, attempt to fix the organizational problem. Back in 2007, when David Brown was tasked by Cabinet to assess the RCMP and report back to Public Safety, Brown identified 49 recommendations, addressing discipline, compensation,  civilian oversight, governance, trust, ethics, workplace health, backlog, and many others. In fact, you could literally take the table of contents from the Brown Report carve out a good part of it and assess the organizational health of the OPS. Brown's direct message: the RCMP needed urgent and fundamental change. An internal project was initiated and staffed by RCMP members at the executive level to develop these recommendations into wide-spread programmatic and operational change.

Despite what appeared to me to be honourable intentions - some truly believed they would transform the force, marking a historical turning point in the RCMP - the project died on the vine in a matter of years with only a portion of its mandate fulfilled, irrespective of the rafts of specialists and academics consulted. Interestingly, this was also the same time that Comm. Elliott, a civilian, was driving this initiative hard - there was frequent yelling, crying and door-slamming at HQ on Vanier Parkway and then, mutiny. Elliott was gone within months. A decade later, Ian McPhail, of the Civilian Review and Complaints Commission recently stated “If . . . over 15 reports and hundreds of recommendations for reform have produced any lessons it is that the RCMP is not capable of making the necessary systemic changes of its own accord.”

In organizational behaviour and social sciences, it is indisputable that there are quantitative and qualitative links between employee satisfaction and job satisfaction and an organization's performance and productivity and, most importantly, 'customer' satisfaction. Studied and applied extensively by Maslov, Herzberg, Potterfield, Drucker and even Linda Duxbury from Carleton University through her work with the RCMP, the correlation between rising crime, policing practices and internal organizational issues have been delineated for years, researched in detail by Braga, Weisburd, Zedner, Shaw, Haberfeld and many others.

Evidenced and reported on in commissions with NYPD in the 70s, LAPD in the 90s, RCMP in the late 90's and 2000s, Stuebenville, Ohio for decades (in 1997, after a year long investigation, the US Justice Department forced Steubenville's police department to sign an agreement in an effort to get them out of bed with local criminals and crooked machine-politicians) and many other police organizations. Each vary in their degree of organizational dysfunction - from unfair treatment and self-serving bias for personal gain to extreme and embedded corruption supported internally and externally - but are nonetheless damaging.

For Ottawa and Ottawa Police Services, its time to stop theorizing and postulating and accept that the state of our communities and crime rates are directly correlated to the breakdown and deterioration of the Ottawa Police Services - its not the only factor but it is, based on decades of research and organizational effectiveness facts, a critical one. Frankly, if the known issues in the Ottawa Police Services, and Police Services Board, were addressed and the hypothesis disproven - there is no effect on crime rates - who cares. At least problems that needed tending to would be dealt with, and leadership could take their back-pats, reward the uninvolved and the organization and public could reap the benefits.

In its current state, if a threat-risk assessment were performed on the OPS, the unmitigated vulnerabilities in organizational policies, procedures, governance and their resources (people) would result in high levels of organizational and public safety risks. That is the harsh reality - the problems experienced by the Ottawa Police Services are ours - it's a public problem. Employee actions and attitudes will not and cannot influence organizational effectiveness and philosophic perspective on their own, but public disapproval and passive reinforcement can. If leadership and governing bodies insist on remaining unengaged with the organization and public, and refuse to acknowledge the issues and risks, there are steps the public can take.

Ethical Conduct Is Inherent To Policing - It Is Not An Option

Policing is not a product; it's a service - an essential service that is loaded with an expectation of value measured by safe cities, reduction of criminal activity and improved communities and healthy police/public relations. The service as an organization, in practical terms, is nothing more than groups of individuals under a common philosophy where, in the case of policing, cohesion and rock-solid ethos emerge from the extraordinary stress and demands of the job. Unfortunately, this cohesion can become a barrier to shining a light on and punitively dealing with the bad apples and restoring the redeeming values of the organization.

In most organizations, those who do not fit the organizational philosophy are turfed or "constructively dismissed' by making their professional life hellish over an extended period time. But what happens when the organizational philosophy is perverted and tolerance for misconduct is fostered by senior ranks, where virtue means little and it's the size of the stick that counts? Normally, when the majority does not conform to the new subjective standard, they are oppressed and if too vocal they are ostracized and socially punished, leaving the tainted philosophy to thrive in a culture of fear, silence and inaction.

When corruption was exposed in NYPD in the 1970s, in the Knapp Commission examination Frank Serpico underscored the fear of the majority to go up against the corrupt and entitled; it was a 'code of silence'. Serpico also famously said "10 percent of the cops are good, 10 percent of the cops are bad and 80 percent wish they were good" - the 80 percent were immobilized by fear of reprisal. Focusing on the unconscionable minority, although small in numbers their impact to the organization is devastating - the longer the behaviours persist, irrespective of the ranks they emerge from, the more those behaviours erode and wear the principled officers down. The tables need to turn: code of silence or not, the very basis of civil law dictates that no one is above the law and the dishonest cop, at any rank, must come to fear the honest cops in their numbers, voice and action.

The majority of officers are good - more than good: they are committed, principled and driven to serve and maintain the sanctity of public safety, law and order. But they are, as we have been hearing for years, tired, oppressed, under-staffed, discriminated against, and beleaguered by the reported internal strife and poisoned culture within the walls of what has become a police-industrial complex that is run from the top down autocracy. More importantly, they are human. No different than the public they serve, they struggle with spousal, financial, physical and mental health issues, and family problems - aging parents, kids, suicide, drugs, bullying - as anyone does. As a member of the public, that is the human aspect you need to see and accept with demonstrated compassion.

The 90 percent aside, the extraordinarily low reporting of unfounded cases in sexual assault was telling and one can presume that if this is happening with serious and egregious crimes, it is happening with lesser or summary crimes. Blamed on inadequate training and a lack of understanding of what constituted founded versus unfounded, this was nothing more than pap; a shielded response to avoid responsibility for compounding internal neglect of duty and misconduct. Many would find it hard to accept that a trained professional with any concept of comparative crime assessment would be confused by the criteria for unfounded versus unfounded.

What The Public Needs To Know Before They Call The Police

What happens when you are in need of police service and you are unlucky enough to get one of 10 per centers - who will treat you unfairly as they treat their colleagues - their brothers and sisters - without fear of reprisal? The following paragraphs intend to give you some information and options you can leverage to ensure you are treated and served as the Police Services Act intends.

Recently the Chief Bordeleau directed call centre staff to "strongly encourage" the public to utilize the online crime reporting tool and at the same time the call centre options changed, making it difficult to even reach a person (now you can't zero-out - the quick-cut to file a report or if you have a question is dial 613-236-1222, press 1 for English, then 3 and you will connect to the call centre). This action devolved service to the public akin to walking into a bank and having the teller bum-rush you to the ATM or online services. Unacceptable and demoralizing, this tactic is renown for being applied to processes, such as complaints - the harder to access the process, the less complaints there are, which artificially lowers complaint numbers, inferring that performance has improved.

Adding to that, the Ottawa Police Service appears to be the first and only police service who actively directs their call centre to avert the public to the online crime reporting tool. In every instance of administrative implementation, online crime reporting was used as an alternative means - one of choice, ease of access for the public and almost always prefaced with 'the public can still call or come into the department to file a report'. No matter the justification, the bottom line is the public has every right to access police services through whatever means are available to them without explaining that choice.

If you are faced with a call centre resource who insists on "strongly encouraging" you to go online, escalate your request to their supervisor or to the 'will answer desk', normally a sworn member and be clear that you are requesting your information be taken. Be warned this may not go well - a bad officer hates to be told to do their job by a member of the public and a good officer, well, you wouldn't have to tell them - they would be motivated to assist you and answer your questions. So be prepared for high aversion - discouragement, that what is being described is not a crime or even using aggressive blame tactics making the complainant feel as though they are the criminal - but stick to your objective.

If you are reporting a crime or require evidence to be collected or observed, make sure its a crime and be well versed on the legal interpretation and the legal 'test' for its viability; the Canadian Criminal Law Notebook[1] is an excellent resource for this and explains in plain language how crimes are viewed as 'proven' by a court of law and includes case law to support it. Keep in mind the staff in police service call centres are usually civilians and they are not able, nor permitted, to make a legal judgement or determination of what constitutes a crime, what does not and if one has occurred - they are not lawyers. This is where a call for service to attend a scene, is not only useful in observing the conditions of the complaint and complainant, but also served to maintain the human aspect, community intelligence and involvement by police.

So to be clear, from a legal standpoint, the Crown decides whether a charge and its accompanying evidence is viable - not the call centre and not a police officer. In instances like these, recording the call for posterity and in the event you do not receive the fair treatment is not illegal. In general, it's your right to record a private conversation between you and one other person, providing it originates in Canada, you are the intended recipient and it is for personal use (read Criminal Code Secs. 184, 191, 193[2] for exemptions and application)[3]. Where you run into issues is what you do with that recording and certainly if you intercept and record a call as a third party, even if you are part of that conversation[4].

This also ensures that what you said was included in the report and that the report is accurate, unbiased, factual and complete - the rule of thumb is that anything an officer puts in 'record' must be able to be proven in a court of law. Noting, it is a violation under the Police Services Act, Regulation 268/10, General, Part VII - Code of Conduct[5] to intentionally or negligently omit, misconstrue, falsely state or refuse to accept important information or evidence. Likewise, its important to know that police are permitted to record you (Criminal Code Sec. 191,2 (a), as an exceptions) and that this is routinely done - many Ottawa Police Service officers use recording devices and concealed 'pen-cameras' to record interactions with the public and colleagues.

If you suspect there are issues with your complaint, report, statement or your investigation outcome was unsatisfactory, you may file a Freedom of Information with Ottawa Police Services[6] to obtain all related documentation and communications (recorded calls, transcribed conversation with the call centre, notes, notebooks, emails, file contents, etc.), where not prohibited by legislation. You must clearly state the search criteria: name, address, investigation numbers and specific types of communications you require. Should you not receive what you believe you are entitled to, you can appeal the decision with the Privacy Commissioner within 30 days. Another option, though more complex and costly, is to initiate a motion in court with a lawyer for a production request, which is disclosure of all documentation and communications, providing it is in the public interest or privilege[7].

Then, if there are inaccuracies, inconsistencies or clear neglect or conduct issues, you may file a complaint online with the Office of the Independent Police Review Director (OIPRD)[8] citing the exact violation under the Police Services Act, the complaint, and detailed evidence. Further to that, if you are experiencing resistance by an officer in laying a charge in the course of your investigation and after providing evidence, you have a few mechanisms available to you. This can be the case when an investigation was decided upon by another colleague; it has been explained that it is socially unacceptable to over-rule the decision made by a colleague. But you are permitted to obtain a reason for a lack of charges being laid and if this is refused, again you can file a complaint with the OIPRD under the Police Services Act, Code of Conduct, Neglect of Duty (as noted above).

It may seem to be inconsequential to an officer whether he or she lays a charge, many are reluctant to do so for so many reasons: clearance rates, court time, scrutiny of records and work load. Therefore, an important question and request to make is whether the Crown - who is now embedded with OPS - has reviewed the evidence and if they, not the officer, made the determination for charges. If this is met with refusal, again, you can file a Chief's complaint or service complaint (if a civilian) by emailing the Chief or you can file a complaint with the OIPRD under the Police Services Act, Code of Conduct. If this appears to be untenable, you can also pursue charges through the Crown by filing a private prosecution - "laying information"[9] [10]. Basically, this is where you as a member of the public approaches the Justice of the Peace and presents your information and requests a hearing or pre-enquete - you only have 6 months from that date of the incident to do this. From there, the judge will determine whether the case will be heard or charges initiated from the bench.

Private prosecutions are a multi-step process and will be not only take time but will be time-consuming and require legal understanding and considerable preparation. But if you familiarize yourself with the process and requirements, have all of your documentation and evidence complete, tabbed, referenced and bound with a crown brief explaining how the incident and the evidence meet the legal test for the crime, you have a reasonable expectation for success. If you are told by a lawyer or an officer it is difficult (it is) and its never successful, keep in mind they routinely discourage the public from privately prosecuting - for lawyers, there is no money in it and for an officer not willing to assist you, it is not only embarrassing but may open them up to liability should your case proceed successfully, charges are in fact laid and the accused prosecuted.  

The civility, progress and improvement in our societies lay not only with maintaining law and order but also access to justice and fair treatment for the public. As much as ineffective policing cannot be permitted to circumvent the balance of good and evil, it cannot be permitted to block the road to justice. Where it is, there are mechanisms for the public to persevere and although they can be lengthy and bureaucratic, they are not unattainable. While the public and the effective, principled officers wait with hope for the Ottawa Police Service's organizational disarray to be dealt the fatal blow that will allow reformation, protect your interests and wellbeing by remaining vigilant with your personal, community and public safety. And if you see one of the 90 percent, smile and thank them; they are doing their best.

[1] Criminal Notebook.ca: http://criminalnotebook.ca/index.php/Main_Page

[2] Criminal Notebook.ca : http://criminalnotebook.ca/index.php/Intercept_of_Private_Communications_(Offence)#Exceptions_for_s._184

[3] The Right to Privacy in Verbal Communication: The Legality of Unauthorised Participant Recording http://lawjournal.mcgill.ca/userfiles/other/2224706-Colombo.pdf

[4] Borden, Ladner, Gervais law Offices: http://blg.com/en/News-And-Publications/Publication_4539

[5] Police Services Act, R.S.O. 1990, O. Reg. 268/10: GENERAL https://www.ontario.ca/laws/regulation/100268

[6] Ottawa Police Service: https://www.ottawapolice.ca/en/contact-us/Police-Reports.asp

[7] Norton Rose Fullbright Law Offices: http://www.nortonrosefulbright.com/files/im-not-a-party-and-ill-produce-...

[8] Office of the Independent Police Review Director, Complaints: http://www.oiprd.on.ca/EN/Complaints/Pages/Complaints.aspx

[9] Attorney General, Ontario - Private Prosecutions: https://www.attorneygeneral.jus.gov.on.ca/english/private_prosecution.php

[10] Criminal Notebook.com - Private prosecutions: http://criminalnotebook.ca/index.php/Private_Prosecutions