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Police officers in deadly encounters should be required to talk, former SIU director says

A former director of Ontario's police watchdog is pushing back after a string of cases where officers involved in the deaths of civilians have chosen not to speak with investigators, saying the province has the power to make it mandatory for subject officers to explain what went on in those fatal encounters.

Officers have the right to remain silent. But with a duty to serve the public, should they?

During an SIU investigation, subject officers are treated essentially as suspects in a criminal investigation. As such, the agency says, they share the same Charter rights as any other member of the public, including the right not to incriminate themselves. (Peter Power/Canadian Press)

A former director of Ontario's police watchdog is pushing back after a string of cases where officers involved in the deaths of civilians have chosen not to speak with investigators, saying the province has the power to make it mandatory for them to explain what went on in those fatal encounters.

Howard Morton, who served as the director of the Special Investigations Unit (SIU) from 1992 to 1995, argues officers under investigation should be obligated to provide interviews and submit their notes to the unit.

He says their right to remain silent should be overridden by another element in Canada's Charter of Rights and Freedoms — "reasonable limits" under a "free and democratic society."

It's a legal argument but one Morton believes could transform police accountability in Ontario.

"In my view, that would be demonstrably justified ... because police officers are public servants who we allow to carry guns, who have some extraordinary powers," Morton told CBC News.

"They were on duty at the time the individual either died or was seriously hurt and they have an obligation to give their account."

The comments come in the wake of the latest development in the case of Ejaz Choudry — a 62-year-old father of four in crisis fatally shot by police in Mississauga, Ont. last month — in which the officer who pulled the trigger exercised his legal right not to speak with investigators.

It's the most recent in a series of cases where Peel police officers under SIU investigation — referred to as "subject officers" — have declined interviews after fatal encounters involving Black people, or other people of colour, with mental illness, including Clive Mensah in November and D'Andre Campbell this past April.

Speaking to CBC News Thursday, the Choudry family's lawyer Nader Hasan called it "troubling yet not surprising" that the officer chose not to talk.

"There is nothing he could possibly say that could excuse or justify shooting Ejaz," Hasan said. 

Choudry's nephew Hassan Choudhary also reacted to the news, saying on Twitter:

"Imagine having the right to pull a trigger on someone and not explain yourself. Imagine how my family feels... Today it could be my uncle, tomorrow it could be your brother, father, uncle or loved one."

Officers 'entitled to their rights'

As it stands now, the SIU can only invite subject officers for interviews and can't compel them to participate or to submit their notes. That's unlike witnesses officers, who are required to do both.

On top of that, if a witness officer is found to have in fact played a role in an incident and is then deemed a subject officer, the SIU director must return all copies of interviews and notes to the force.

Howard Morton, who served as the director of the Special Investigations Unit from 1992 to 1995, argues subject officers should be obligated to provide interviews to the police watchdog agency, saying the province has the power to require them to do so. (CBC News)

During an SIU investigation, subject officers are treated essentially as suspects in a criminal investigation. As such, they share the same Charter rights as any other member of the public, including the right not to incriminate themselves, SIU spokesperson Monica Hudon said in a statement to CBC News.

Peel Regional Police had a similar response when asked about the recent examples where officers have declined to speak with investigators.

"Like all Canadians, police officers are entitled to their rights, which includes not having to speak with investigators if they are being investigated for a potential crime," said Peel police spokesperson Const. Akhil Mooken. 

Interpretation of Charter 'not valid': ex-SIU director

But for Morton, "that premise is based on an interpretation of the Charter of Rights which I think is not valid."

"As public servants who are in the duty of serving and protecting," he argues police officers should be held to a higher standard.

CBC News asked Peel police what the repeated instances of officers opting out of interviews with investigators means for public trust. Mooken responded in part:

"While public perception can be affected when they hear that an officer has chosen not to speak with the SIU, it's important that the public realize that police officers are entitled to the same rights that all Canadians have."

As for what the recent deaths of Mensah, Campbell and Choudry say about the force's handling of cases involving people of colour in crisis, Mooken said ethnicity and gender have "no bearing" when officers respond to a call.

He said their goal is to "ensure the safey and well-being" of both the individual in crisis and the community. 

"Our officers constantly participate in training to ensure the person in distress receives the support they need," he said, adding the force is looking at the possibility of collaborating with other agencies with the aim of "mitigating physical force and to determine if a police response is even required."

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Public has 'full and complete right to know'

Morton doesn't believe that any of one of the incidents tarnishes the Peel police force as a whole.

Instead, he calls the recent cases symptoms of something "totally systemic." He says he's in favour of removing police from the front lines and reallocating some of their funding to communities that are economically deprived. 

"We have to redefine what the police are good at doing," he said, adding it should be mental health experts who first respond to calls for people in crisis.

Asked why the province has chosen to continue with its current legal interpretation and not require subject officer interviews, a spokesperson for Attorney General Doug Downey said the ministry could not "provide legal analysis" to members of the public or the media.

D'Andre Campbell, left, and Ejaz Choudry, right both men suffered from mental illness and died in police encounters this year. Subject officers in both cases have declined to speak with the SIU. (Claudius Campbell/Choudry family)

"In general, it is a well established principle in Canadian law that the subject of a criminal investigation cannot be compelled to answer questions posed by investigators conducting the investigation," said spokesperson Jenessa Crognali. 

That's not enough for Morton.

"The public have a right a full and complete right to know what happened," he said.

"And if it leads to criminal charges against the officer, so be it."

With files from Sabrina Jonas

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