The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50801
regional wrap-up Justice sought via small claims court G rowing lack of faith in B.C.'s police-complaints process is pushing more cases into the province's justice system. Two legal groups are now boycotting the process and march- ing clients into B.C.'s small claims court looking for cash settle- ments as a public acknowledgement that police acted wrongly. In July, the B.C. Civil Liberties Association and the Pivot Legal Society, announced a joint province-wide boycott of the police-complaints system. "We were just not getting the results that we wanted," says Douglas King, Pivot's lawyer in charge of the police campaign. Pivot fi gures show that of 1,083 B.C. complaints lodged in 2006, police, who investigate themselves, substantiated only 54. King says the system is "hopelessly un- balanced" and Pivot is demanding more robust changes to the Police Act than are likely to take place in legisla- tive amendments expected next spring. Specifi cally, the police complaint com- missioner should have greater inde- pendence in investigating complaints. King feels small claims court with Douglas King an impartial judge, accountability, and transparency will yield better re- sults for those who say they've been wronged by police. The court has ju- risdiction over claims for debt or dam- ages up to $25,000. He points to the 2007 small claims court case that saw Pivot's executive director and founder John Rich- ardson successfully win a $5,5000 damages award on behalf of Margaret Rose Willie against the City of Vancouver. The elder native woman was mistaken for a drug dealer and unlawfully searched and detained on a downtown street during the day. Pivot is now pushing forward another case where a com- plainant alleges police broke his arm and refused to call an am- bulance. King says Pivot staff would handle as many cases as possible, but is also seeking help from others in the legal com- munity. It has also prepared a lay guide for suing police and pri- vate security fi rms. "How to Sue the Police and Private Security in Small Claims Court" is available at www.pivotlegal.org. The right to sue police was further extended in Hill v. Hamil- ton-Wentworth Regional Police Services Board, a 2007 Supreme Court of Canada decision that confi rmed police can be sued for negligent investigations. Lawyer and B.C. Civil Liberties Association executive direc- tor Murray Mollard says they joined the boycott after a ran- dom audit of police complaint fi les by Josiah Wood (now a Provincial Court judge) showed there were serious fl aws in the police investigative process. Mollard says as many as one-third of the fi les had incomplete information to draw a professional conclusion. "That's a failure rate of one-third right there," he says, adding the more serious the allegations the less thorough 8 OC T OBER 2008 www. C ANADIAN Law ye rmag.com the investigation. Not only do police investigate themselves but offi cers under investigation do not have to participate in the process. Mollard says police have a diffi cult task and creating a police complaints commission is a positive step, but the commissioner has "dull" teeth and only "peers over the shoulder" of police investigations. More changes are needed. One power held by police-complaints commissioner Dirk THE WEST Ryneveld is the ability to demand a public inquiry, which he did in 2004 in the death of Frank Paul, a native left by Van- couver police in an alley on Dec. 6, 1998 and found dead the following morning from hypothermia. An inquiry, headed by former B.C. Supreme Court justice William H. Davies, is over but not without incident. A B.C. Supreme Court decision had to be obtained ordering the Crown prosecutors to explain why they did not lay charges against the police offi cers investigated. The criminal justice branch of the Ministry of Attorney Gen- eral has now brought a challenge to that decision and it goes before the appeal court with a decision coming in late 2008. Mollard says while cases are being directed into small claims court, "in-custody deaths" are always referred to lawyers. Mol- lard, in an April 2008 letter to Paul Kennedy, chairman of the commission handling RCMP complaints, pointed to 15 in- custody deaths in RCMP jurisdictions from 2004 to spring 2008, with the taser death of Robert Dziekanski the latest high- profi le case. Concern for the complaint systems in B.C. has come from Ryneveld himself, who, in his 2007 annual report (www.opcc. bc.ca), expresses disappointment at the slow pace of change. Ryneveld, wrote Wood, who penned recommendations for the changes to the Police Act, had two principal fi ndings that "the pubic should fi nd very troubling" and legislators should keep in mind when revamping the Police Act. The fi rst was the more serious allegations were less likely to be thoroughly investigat- ed. The second was a "lack of complete acceptance by police of the concept of a full civilian oversight", wrote Ryneveld, add- ing, "Wood's conclusion refl ects my own experience." While expected reforms allow the commissioner greater participation in the police investigation, he will still not be able to conduct arm's-length investigations. BCCLA and Pivot are now looking to the courts for account- ability. And, as police actions land more civil suits before the courts, the quality of police may boil down to how much cit- ies like Vancouver, with $180-million police operating budgets, want to spend on damage control. — JEAN SORENSEN jean_sorensen@telus.net