More than half of police conduct complaints dismissed in 2016 for insufficient evidence: annual report
Number of complaints dropped or dismissed puts a chill on filing, lawyer says
Complaints about police officers in Manitoba were down slightly in 2016 from 2015, but only two per cent of them actually made it to court, according to a new annual report from the Law Enforcement Review Agency.
The agency, which deals with complaints about local and municipal police in the province, received 122 new complaints between Jan. 1 and Dec. 31, 2016, the report shows — a slight drop from the previous five-year average of 142.
The agency also resolved 122 complaints, most of which were filed in previous years, according to LERA commissioner Max Churley. Two of them ended in a public hearing before a provincial court judge, according to the report, which was tabled in the Manitoba Legislature by Justice Minister Heather Stefanson on Thursday.
More than half of all complaints resolved last year — 53 per cent — were dismissed by Churley as not having enough evidence to justify a hearing, the report says, and nearly a quarter were withdrawn or abandoned by the complainant.
Winnipeg lawyer Zilla Jones, who has worked with LERA proceedings in the past, said the high number of complaints that get dropped puts a chill on opening new ones, and sends the message there's no point to using the system.
"When potential clients call and ask lawyers about their chances of success, lawyers have to tell them, 'Well, most of these complaints don't make it to a judge, and the ones that do make it to a judge tend to be dismissed,'" she said.
"What I've heard from a lot of clients is, 'LERA is a joke.'"
Adding the new numbers to last year's CBC analysis of LERA cases from its creation in 1985 shows the agency has dismissed more than 2,000 cases in the past three decades, compared to 138 cases that have gone on to hearings.
Complainants have abandoned or withdrawn a further 1,866 complaints, the analysis shows.
'I don't think it's a flaw': Commissioner
LERA commissioner Churley said the number of complaints dismissed for insufficient evidence last year is not uncommon. Many of the complaints are "he-said, she-said" stories, he said, involving only the complainant and one or two police officers.
"It's a situation where the type of complaint or the evidence that is presented by the complainant … is insufficient in order for me to send it to a hearing," Churley said. "I don't think it's a flaw."
Churley also dismissed a fifth of complaints on the grounds they were outside the scope of the act — LERA only covers police conduct, not service complaints or criminal activity — and a single complaint considered "frivolous or vexatious."
Nearly half of new complaints opened last year, 49 per cent, alleged injuries from use of force, although Churley said reports of excessive force may also be filed as criminal charges of assault.
He agreed the dismissed claims and lengthy investigation process might be daunting for people thinking about filing a complaint.
"Obviously there's a certain percentage of people that don't [have confidence in LERA], for the reasons that we've discussed: the length of time it takes to do the investigation, sometimes, and usually that's for reasons beyond our control," he said, citing holidays, setting court times and the need to get police documentation and give officers time to consult with legal counsel.
Churley sends a letter to complainants when their files are dismissed, he said. They can also request to have his decision reviewed by a judge, he added, but it's rare for the judge to overturn his decision.
"I don't make the comparison with any disrespect, but it's a lot like the sexual assault situation, where you have the 'he-said, she-said' situations as well," Jones said.
"That's what makes the situations so challenging for judges and for police, because one says the person did something and the other says, 'No I didn't.' Where do you find the truth?"
Complainants often can't afford legal counsel
LERA complainants aren't required to have a lawyer, and often can't afford one, Jones said. Police, however, are entitled to legal counsel in their contracts and are backed by unions.
"[Police] have their own union, they have their own counsel. Complainants don't have that, and of course many of the people dealing with police are vulnerable," she said. "… I think we need to make sure that the way that these complaints are handled give them that opportunity to speak up."
Churley also identified a complainant's lack of legal counsel as a problem, and said the agency has previously made recommendations to the government to create provisions for providing legal counsel.
Complainants can go to Legal Aid, but it's "very seldom" the service will take on a LERA case, he added.
Jones said she'd like to see LERA reviewed to extend the 30-day period people have to make complaints and give the commissioner less discretion over cases.
"Ultimately, I think it's the standards that are used in the legislation which would have to be changed," she said.
"The LERA Act would have to be different, and there would have to be some kind of committee or process to look at that and what changes we may want or not want to that. It's all done by legislation, and until that's changed, we're stuck with the system that we have."
Act serves its purpose: commissioner
Some complainants start with the belief LERA will work on their behalf or leave with the sense it's served the police, Churley said, but he says the reality is the agency is a middleman.
"We're not acting for them, and we're not acting for the police. We're taking a complaint and we're investigating it, and we go where the information takes us," he said.
"… I think that, you know, LERA serves the purpose it's meant to serve in dealing with conduct issues."
But Jones said she's concerned the system doesn't do a good enough job.
"Certainly, I don't think that we want to take this as an excuse to undermine police or attack police," she said.
"But because they have so much power in society, and and because a lot of the people they deal with are so vulnerable, we do need to be watchful and make sure that there's proper oversight."
- A previous version of this story incorrectly stated LERA complainants don't have the option to appear in person before a judge during the review process. In fact, commissioner Max Churley said complainants do have that opportunity.Oct 17, 2017 5:33 PM CT