Tribunal? What Tribunal?

Six times in 33 minutes.

That is how often Toronto Police Chief Bill Blair employed the word “tribunal” in his May 16^th press conference relating to the OIPRD report that dealt with police behaviour during the G20 in Toronto.  He used the word “tribunal” to refer to potential misconduct hearings against police officers whose cases the OIPRD has asked the Chief to deal with under the Police Services Act.

In this same press conference, Chief Blair refused, yet again, to concede or accept that there were mass violations of citizens’ rights or to apologize to those whose rights were so blatantly and shockingly violated.   He repeatedly claimed that he will only hold police officers accountable for misconduct if such misconduct is proven on the basis of evidence given before a “tribunal.”

The trouble is, there is no “tribunal” to deal with police misconduct.

The word “tribunal” is not mentioned once in the Police Services Act.

Most people understand “tribunal” to mean an arms-length, independent, neutral body that has the final say in the matter before it, like a court.  A court is a kind of tribunal.

In Ontario, for example, we have the Human Rights Tribunal, the Rental Housing Tribunal, and the Workers Safety and Insurance Tribunal.

Adjudicators and prosecutors are appointed to these tribunals after a competitive process, whereby the positions are advertised, resumés are reviewed by committees, and qualified  candidates are interviewed.

No such process exists for police misconduct hearings.  There is no open, competitive application process.  There are no interviews by disinterested, distinct, and neutral third-parties.

It is the Chief of Police who appoints the prosecutors for police misconduct hearings. And it is the Chief of Police who appoints the person who will conduct these hearings.

The Chief, Bill Blair, the same person who has been called on by many to resign, or at least to admit that people’s rights were grossly violated during the G20 under his watch, is the one who appoints the prosecutor and the “adjudicator.”

This is no arms-length adjudicative body.

There is a misconduct hearing.  And the Chief decides who prosecutes and who adjudicates.

This is not a “tribunal.”

Calling such a body a “tribunal” requires a stretch of the public-relations mind.

One might say, so what?  So what if the Chief used the word “tribunal?”  There is still a hearing with an adjudicator and a prosecutor.

The Chief is an extremely intelligent officer, well-familiar with the law, particularly the laws which concern his job, his duties, and the members of the Toronto Police.  He knows the Police Services Act.  He refers to it, and refers journalists to it.  He surely knows that the hearings that are held at Police Headquarters, where he appoints the prosecutors and the “adjudicators”, are not like the daily hearings that take place before the province’s many real tribunals.

I believe that Chief Bill Blair used the word “tribunal” quite deliberately.  And, in the context of the G20 and its aftermath, the use of the term “tribunal” is problematic and misleading.

Let’s outline this context:

•  Two years have passed since the G20.   Still, there has been no apology to the people of Toronto and others, despite the abundant and overwhelming evidence that shows egregious violations of people’s rights.

•  The Chief could have started his own investigations into any number of misconducts that were apparent to him.  He did not need to wait for the OIPRD report or any other report.  He did not even need to wait for any member of the public to complain to him.  Under s.76 of the Police Services Act, the Chief may make a complaint against any member of his own force.  But the Chief did not take this step against the perhaps hundreds of officers who could have been identified in any of the videos made public after the G20.

•  Had the Chief started his own processes, more officers may have been held accountable for their misconduct.  This is so because the Chief has easy access to information that can help him identify officers (whereas the Special Investigations Unit does not, for example).  More significantly, a speedier response, which was available to the Chief, would have meant that officers could not avoid responsibility simply by retiring, joining another force, or resigning their positions, which place them outside the jurisdiction of the Police Services Act.  Already, at least two senior officers identified by the OIPRD have escaped any hearings and accountability through retirement.

•  The Chief has continuously rationalized police officers’ actions and avoided ever acknowledging that there were mass violations of people’s rights.  He has never apologized for the events of those few days, even when asked point blank to do so.

•  He has minimized the significant abuses of power that occurred, by repeating that officers faced an immensely difficult task (which may be true, but is certainly not a justification for excessive use of force and violations of people’s rights), and by claiming that 20 or 30 hearings, when over 5000 Toronto Police officers served during the G20 weekend, is actually a low number.

Most importantly, by his continued reference to a “tribunal” and a “court of law” as the places where the evidence will be heard and where decisions will be based on fact and law (as opposed to “opinion,” which he implies is what the OIPRD has given), Chief Blair attempts to imply that decisions will be made by an arms-length, neutral court.

It’s not just that the Chief, himself, appoints the prosecutors and “adjudicators” for these hearings.

It is the Chief, himself, who has the final say for what happens to those officers.

In other words, if a finding of misconduct has been made by the person conducting the hearing, then it is the Chief who decides whether and what penalties that officer should face.  He can decide whether no action will be taken, whether the officer should lose a couple of days’ pay, or whether he or she should be dismissed from the police force. (see s. 84 of the Police Services Act.) In essence, the Chief is the final adjudicator.

This is hardly a model of neutral and impartial adjudication, especially since Bill Blair was the Chief during the G20.

The Chief has used the “tribunal” reference as a shield.  He has used it to defer and eschew any negative conclusions about what his officers and the police force did during the G20 weekend in Toronto.  He has used it to say that until the facts and issues are decided before a court of law, he can’t and won’t apologize, assign responsibility or admit that the police grossly breached people’s rights.