Outsourcing justice for fear of offending the police

TheStar.com – news/canada/politics
Published On Wed Dec 14 2011.    By Martin Regg Cohn, Queen’s Park Columnist

I can’t recall as craven a display of intellectual dishonesty, political cowardice and legal myopia as in the last couple of years of rudderless stewardship at the attorney general’s ministry.

Under the mantle of Chris Bentley, who was shuffled out of the job after the October election, the department lost its way. When police departments across Ontario systematically snubbed the Special Investigations Unit, which is mandated by law to investigate police shootings and woundings, Bentley looked the other way. Or looked to others to lead the way.

For years, SIU head Ian Scott had been cautioning that police officers under investigation or witnesses in uniform were sharing the same lawyer after shootings — raising the prospect of collusion. These officers were also refusing to complete their notes without first talking to their lawyers (in some cases writing out rough drafts for vetting, and failing to submit their notes before end-of-shift as required).

In his latest report, Ombudsman André Marin details how Bentley failed to grasp his role as defender of the public interest — bending over backwards to protect the police from criticism and scrutiny. The supposedly independent SIU struggled to hold various police departments to account without any moral or legal support from the attorney general. Scott wrote 227 letters to police chiefs flagging his concerns but got only 20 substantive replies.

Remarkably, the attorney general actively suppressed the SIU’s annual report for fear of offending the police. When Scott wanted to go public with the results of how police had flouted the letter and spirit of the law, Bentley — the chief law officer of the crown — shut him down, then closed his eyes to the problem. And lost his voice.

Justice is meant to be blind, not deaf and mute.

Rather than stand up to the police, Bentley sat down with a retired judge, Patrick LeSage, to lower the temperature. He hired LeSage to perform a “conflict-resolution” miracle, hoping he could reconcile all competing interests. Mediation began without Bentley ever bothering to tell the public that he’d opted to go underground on the issue.

Accompanied by a smiling Bentley, LeSage released an 830-word report last April that belatedly addressed some of the most glaring problems. But not everyone was persuaded that justice was served by Bentley’s fondness for delay, dithering and judicial outsourcing. When one side is sabotaging the process, mediation is no substitute for action.

Last month, the Ontario Court of Appeal issued a bracingly clear-eyed decision that tells us what most of us (except, apparently, Bentley) understood long ago: That it defies logic and any sense of fairness for police to share the same lawyer and to hold back their notes until they’ve been vetted by counsel.

The unanimous decision by three judges came thanks to the perseverance and (meagre) pocketbooks of the families of two mentally ill men shot dead in two separate incidents by OPP officers. The judges rejected the arguments of police lawyers that the issue had already been settled by LeSage and Bentley.

It still hasn’t. Curiously, LeSage recommended that police complete their notes before going off shift, “except where excused by the chief of police.” Given that police chiefs — and their many designated stand-ins — have frequently exempted officers from that obligation in the past, it’s a loophole that cries out for closing (for example by requiring medical documentation, as the ombudsman’s report suggests).

Leadership and justice are about more than taking the path of least resistance. We don’t elect politicians so they can hide under the skirts (or robes) of judges, or retired judges, every time police turn up the heat.

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