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B.C.'s in custody deaths crisis: Interview with SFU Criminologist David MacAlister

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David MacAlister holds a B.A. and an M.A. in Criminology from Simon Fraser University, an LL.B. from the University of British Columbia, and an LL.M. from Queen University.  He has taught courses on criminology, criminal justice and law at various institutions since 1985.  His current teaching areas include Criminal Procedure and Evidence, Philosophy of Law, Human Rights and Civil Liberties, and Sentencing.  His research interests include the area of financial compensation for victims of crime and sentencing practices, including the use of reparative dispositions in the criminal law.  He is a co-author of the text: Canadian Criminal Justice Today, now entering its second edition.  He is presently an Assistant Professor in the School of Criminology at Simon Fraser University.

Q. You are currently editing a book on in custody deaths. What are some of the main issues that have been identified with the public policy framework in B.C.?

A number of major public policy concerns flow from the examination of police-involved deaths in B.C. The report makes three major points, each of which has related implications. First, the number of police-involved deaths in B.C. is alarmingly high and apparently out of proportion to the number of deaths arising in other Canadian jurisdictions. The most recent data reveals that in B.C., 267 individuals died through police involvement between 1992 and 2007. In Ontario, for the same time frame, 316 people died. On a per capita basis, that works out to one death per 16,970 B.C. residents and one death per 41,806 deaths in Ontario (based on most recent Statistics Canada population statistics). In other words, you are about 2 ½ times more likely to die through police involvement in this province than in Ontario.

Data from other jurisdictions was inadequate to allow further province-by-province comparisons. A second major point coming from this research is that there is considerable variation in the way police-involved deaths are investigated across the country. In B.C., the police still investigate the police -- even when a police officer is believed to have been responsible for causing the death of someone under their care. This is at odds with the way things are done in some other Canadian jurisdictions, and in other democracies. The third major point arising from the research is that we should always be thinking about the ways in which we can prevent future tragedies in which people die at the hands of the police. Each of these points raises questions about the public policy framework in B.C.

In this province, the RCMP appear to display an attitude that shows greater concern with their public image than with addressing the causes and consequences of the police-involved death phenomenon. When the report was first released, the initial response I received from the police was a challenge to the number of deaths contained in the report. Rather than focus on what is being done to ensure deaths in custody are being minimized, the police tactic was to point out that the number of deaths in Ontario was higher than initially reported.

Indeed, their critique was accurate, the numbers coming from Ontario failed to include the total number of police-involved deaths. Despite our request that the Chief Coroner's Office in Ontario provide data pertaining to all police-involved deaths, their office only provided numbers of actual in-custody deaths. When the full picture was revealed after the release of the report, we readily admitted to this error which was induced by the agency's failure to fully disclose all that we asked for. However, the updated numbers, secured by the RCMP from the Ontario Coroner's Service reveals the numbers outlined above. They still show a death rate two and a half times higher in B.C. than in Ontario.

Another issue that flows from the research is the revelation that the police are a powerful political entity in this province. The police are a powerful lobby group with a well-oiled PR arm. One assertion set out in the report is that we should move to a genuine independent civilian agency to investigate allegations of serious police wrongdoing and deaths arising through police involvement. In B.C., we currently use police agencies to investigate serious wrongful conduct involving the police in neighbouring jurisdictions. This is a very minor improvement over the traditional practice in this province of police agencies actually investigating themselves.

In June of this year, Mike de Jong, the provincial Attorney General, announced B.C. will be creating a civilian agency to take over the role of investigating police-involved deaths and serious injuries. Mr. de Jong has recently indicated that his ministry will have the legislation together for next spring; however, it is a concern that he seems to be taking the advice of the police chiefs in B.C. regarding the structure of the new agency, yet there has been no public consultation on the matter. Surely the scope of the mandate and the extent of the resources to be allocated to such an office are matters meriting direct public input. Prior to creating the new Independent Investigation Unit in Manitoba, an extensive period of public consultation appears to have been adopted, with proposals placed on the web and public input invited. I fear that we may end up with a sub-par agency foisted upon the B.C. public which is the end result of what the police community wants to see in place rather than a reflection of community concerns.

In police wrongdoing cases, Crown Counsel make the ultimate decision whether to charge the police. While this role is apparently left for senior Crown in the province, there is a concern that the Crown Counsel are too closely connected to the police to be relied upon to make the decision to prosecute. Crown work with the police on a day-to-day basis. Even senior Crown have a historical connection to line level police officers that places them in a position that compels one to query whether they are in the best position to make charge decisions and carry out the prosecution of police officers. Recent testimony before the Davies Commission by prosecutors involved in the assessment of whether to charge officers involved in the Frank Paul death point to an agency in which the Crown appeared to be reluctant to question a botched investigation into alleged police wrongdoing. The prosecutors involved in that case appear to have been more content with not charging the police rather than seeking a proper investigation into the matter.

Historically, a coroner's inquest has always been called for police custody deaths. In 2010, the B.C. Coroners Act was amended to take away the mandatory inquest provisions. In its place, a discretion is left in the hands of the Chief Coroner to determine whether to call an inquest into such matters. Between 1981 and 2010 the Chief Coroner in this province was an ex-police officer (the current Chief Coroner is not). This appears to be a regressive step. When we see a clear need to shine light on the death in custody phenomenon, we see the prospect of in-custody deaths occurring without a public inquiry into the facts surrounding the incident that a coroner's inquest ensures.

Q. How does BC differ from other areas in the country? What are some of the best practices for public oversight?

As noted above, there appears to be a greater likelihood of dying through police involvement in B.C. compared to other jurisdictions. Why this is the case is not entirely clear. A check of the proportion of deaths arising in RCMP detachments (about 69% of the BC deaths) compared to those in municipal departments was found to reflect the proportion of police officers in the province who work for the RCMP (69.5% of B.C. police officers are in the RCMP, either working federally or under contract to the province or a municipality).

Regarding oversight and civilian investigation, Ontario has had its Special Investigations Unit (SIU) for about 20 years. That agency is a civilian investigative agency that looks into all police-involved deaths and serious injuries. While it has had its growing pains, it appears to be a model that can be emulated by the rest of the country. In recent months, Manitoba has moved to a hybrid (partially civilian) investigative agency, and Nova Scotia is in the process of setting up a civilian agency (possibly in co-operation with New Brunswick). Alberta moved to a civilian led hybrid investigative agency in 2007.

Q. What is happening in other countries that we can learn from?

England has developed an Independent Police Complaints Commission (in 2004) which is a civilian agency with non-police investigators that investigates all police-involved deaths. It also has a role in managing or supervising police-led investigations into lesser forms of police wrongdoing. This agency came into being after numerous criticisms, including a highly influential report by the civil liberty group: Liberty. Northern Ireland has employed a Police Ombudsman whose office has developed a reputation for independence in the investigation of wrongdoing by the police in that jurisdiction. It has gone a long way towards developing trust in the police in a region that has historically had difficulties with police-community relations.

Additionally, England has developed an Independent Advisory Panel on Deaths in Custody headed by a member of the House of Lords (Toby Harris). It frequently provides government advice on policy regarding conditions of detention. It replaces "The Forum for Preventing Deaths in Custody" which had significant influence on the practices of government agencies in the past five years.

Q. There remains a lot of concern around police investigating police although some changes have been made in some jurisdictions. What would be your message to policing authorities so that they can regain their trust with the public?

To regain public trust, police agencies need to subject themselves to external civilian led investigations carried out by civilian investigators. Their investigations need to result in charge recommendations that go to an independent prosecutor for charge assessment. The process must be adequately funded and provided with a sufficiently broad mandate to avoid jurisdictional squabbles. These investigations must secure complete cooperation by the officers and agencies being investigated. Failure to meet any of these criteria has resulted in the adoption of a substandard approach to investigating allegations of police wrongdoing.

Q. How many in custody deaths do we see in B.C. and Canada? How does this compare to other countries?

We don't really know how many deaths are occurring across the country. In B.C., we are seeing about 16 police involved deaths per year. In Ontario, they are seeing about 21 police-involved deaths per year -- about eight of which are in actual police custody and the rest arising from other forms of police involvement (shootings, pursuits, etc.). In Saskatchewan there are about 2 deaths per year in police custody. In the Yukon, there is less than one death per year. In the Northwest Territories one person dies through police involvement about every other year. In other jurisdictions, the Coroner's failed to provide the requested data, so the numbers remain a mystery.

Q. What is your view of the Conservative government's plans to build more prisons even though crime rates have been going down?

I think the Conservative government's plan to build more prisons is very unfortunate and reflects a regressive approach to crime and justice policy. The government appears intent on expanding the scope of the criminal law, imposing mandatory minimum periods of incarceration, and exerting pressure on judges to increase sentence lengths beyond those currently in play. I believe these policies fail to reflect prevailing evidence which points in the direction of these policies failing to meet their desired objectives. The costs associated with these policies could be better spent on preventive strategies and programs oriented towards reducing the likelihood of recidivism among those currently caught up in the justice system.

One argument being advanced in conservative ranks is that the police reported crime rate is declining but the amount of crime is actually increasing since the rate of unreported crime is increasing. Unfortunately, in Canada, we do not have widescale data on unreported crime. While the last General Social Survey did appear to indicate a slight increase in the rate of unreported crime, that survey only targeted a few offence types, giving no indication of the overall rate of unreported crime.

Even if crime could be shown to be remaining constant, or increasing in some categories, it is clear to me that increasing the severity of penalties is not the answer. If that were the ideal approach, the United States could be expected to be the safest jurisdiction in the western world -- and that is clearly not the case. Countries which expend a greater proportion of their wealth on social welfare appear to have a better handle on the crime problem than those taking a crime control approach.

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