Does the Ontario Special Investigations Unit need a broader mandate to improve police oversight?

At the end of April, the pursuit of a robbery suspect ended in a fatal car accident outside Toronto. Four people were killed, including two grandparents and their young grandchild, as well as the person being pursued by the police.

Ontario’s Special Investigations Unit (SIU), a police oversight agency, has launched an investigation into police conduct to determine whether charges are warranted.

The SIU is comprised of civilian investigators who investigate incidents involving citizens and police officers in Ontario that result in serious injury, firearm use, sexual assault or death. The SIU determines whether police actions (or omissions) are criminal and, if so, charges the officers with criminal offenses.

The SIU plays an important role in overseeing police officers in Ontario, but how effective is the agency in practice?

Reports to the SIU

In our latest research report, we examined all investigations conducted by the SIU between 2017 and 2020. During this period, the SIU received 1,245 reports of incidents within its jurisdiction. More than 90 percent of these reports came directly from police.

This high number of notifications to police reflects the fact that police in Ontario are required to report to the SIU when an officer is involved in an incident that falls within the SIU’s jurisdiction. However, there have been high-profile cases where police did not notify the SIU.

Ontario’s Special Investigations Unit Act requires the SIU to “endeavour” to complete investigations within 120 days. We found that the average time to complete comprehensive investigations that did not result in charges was 300 days. In 70 per cent of incidents fully investigated by the SIU, police were found to be investigating or disrupting criminal activity.

Most SIU investigations involve people who have been seriously injured while in police custody, accounting for 57 percent of all reports. Allegations of sexual assault are the second most common case investigated by the SIU, followed by vehicular injuries.

Death investigations also make up a significant part of the SIU’s work. Twelve percent of all investigations concern deaths caused by firearms and vehicles, deaths in custody and suicides where police prevention and intervention methods failed.

Some argue that the police should not be the first point of contact for people with mental health problems. Our research shows that in over a third of deaths investigated by the SIU, the deceased person was found to have a mental health disability or suicidal thoughts.

How often are police officers charged by the SIU?

When a report is made to the SIU, there are three possible outcomes.

The first option is termination, in which case the SIU decides not to investigate. This happens when the reported incident is outside the SIU’s jurisdiction or when the agency considers that there is “obviously nothing to investigate”.

Almost forty percent of the reports were deleted by the SIU between 2017 and 2020.

The second possibility is that the SIU conducts a full investigation and concludes that charges are not warranted. This is the most common outcome: almost 57 percent of all reports are not confirmed by the SIU.

The last possibility, which is also the least common, is that the SIU confirms the report and files criminal charges against the officers involved. Only 3.5 percent of reports resulted in criminal charges.

The low prosecution rate is partly an indication of the particular difficulties involved in investigating alleged police crimes. Police work is often carried out away from the public eye, evidence is often lacking, and as “insiders of the criminal justice system,” police officers enjoy special privileges in court proceedings.

Room for reform?

The SIU is considered the pioneer of Canadian police oversight, but there is still room for reform. Although it plays a fundamental role in police accountability, the SIU has a very narrow mandate.

The SIU cannot charge officers with criminal offences until an incident has occurred and potentially caused harm. This is a necessary but very high standard. Importantly, this criminal law focus means the SIU can do little to prevent police violence and misconduct in the first place.

The narrow jurisdiction of the SIU is comparable to that of other police oversight bodies, such as the Police Ombudsman for Northern Ireland (PONI), which can investigate all types of complaints against the police and has the power to review police policy.

Policy reviews can play an important role in addressing institutional and systemic issues that can prevent future instances of police misconduct. Because PONI is responsible for all police accountability in Northern Ireland, the public is very well informed about the agency. This is in contrast to police oversight systems in Ontario, where a complex network of agencies is responsible for police oversight and accountability.

In the case of the fatal chase near Toronto, the SIU can only investigate if the officer’s conduct clearly deviated from reasonable care and is therefore criminal. It cannot review police policy regarding chases or make formal recommendations for policy change.

Regarding the SIU and police oversight more generally, transparency with the public is another area that is in persistent need of reform. While the SIU has increased its information sharing with the public in recent years, more efforts could be made to engage with communities on an ongoing basis beyond individual investigations.