Shaping Civilian Oversight

Numerous court decisions, civil cases and reviews over three decades have played an important role in shaping the manner in which the SIU conducts its business, and more broadly the area of civil oversight of policing. 

Dec 2020

The Special Investigations Unit Act, 2019 took effect December 1, 2020.

Mar 2019

In March of 2019, new legislation was passed by the provincial government which set out the Special Investigations Unit Act, 2019. The Act gave the SIU its own governing legislation, expanded the Unit’s mandate and replaced police officers’ “duty to cooperate” with SIU investigations with a “duty to comply”. Breach of the duty to comply became a provincial offence which on conviction could result in a fine and/or imprisonment. SIUA legislation:

Nov 2017

In November of 2017, the Ontario government introduced the Safer Ontario Act to replace the Police Services Act. The legislation, which would have impacted the work of the SIU, was passed in March of 2018 and set to take effect on June 30, 2018. However, one day before it was to come into effect, a new government postponed its implementation.

Apr 2017

On April 29, 2016, Ontario’s Premier charged the Honourable Mr. Justice Michael Tulloch, a judge from the Ontario Court of Appeal, to oversee an independent assessment of all of Ontario’s police oversight bodies.

April 6, 2017 saw the release of the report by the Independent Police Oversight Review, which the SIU welcomed for its contribution to the process of strengthening Ontario’s system of civilian oversight.

Read: Report of the Independent Police Oversight Review

Apr 2015

On November 1, 2014, the SIU charged two Ottawa Police Service officers with assault, contrary to section 266 of the Criminal Code. Summonses were served on the officers compelling their attendance in court to answer to the charges and further compelling their attendance at the SIU’s offices in Mississauga to have their fingerprints and photographs taken pursuant to the Identification of Criminals Act.

The officers objected to having to travel to the SIU, claiming they were being treated differently and in an unreasonable manner compared to non-police officer accused persons who typically have their fingerprints taken in the same region in which their alleged offences occurred. They further argued that requiring them to attend at the SIU violated their Charter right to be free from unreasonable search and seizure. The officers filed an application before the court to quash the summons.

On April 7, 2015, the Superior of Court of Justice ruled that the SIU’s policy of requiring police officers whom it charges with indictable offences to come to its offices in Mississauga in order to be fingerprinted did not violate the police officers’ rights. The ruling cited the fact that the Supreme Court of Canada had in Wood v Schaeffer described the SIU as an organization that was intended to be an independent overseer of the police. In this context, for the SIU to insist that it do its own fingerprinting at its offices was a reasonable effort in line with that objective.

Superior Court of Justice decision: R. v. Blonde and Cavan, 2015 ONSC 2113

Dec 2013

The families of two men shot in separate incidents brought a court application for a declaration that certain practices of the Ontario Provincial Police in the subsequent SIU investigations breached the “duty to co-operate” provisions of the Police Services Act. Notably, they argued that the practice of police officers conferring with lawyers prior to authoring their incident notes breached regulatory obligations then in place governing the conduct of police officers in SIU cases. The SIU supported the applicants’ position.

The initial application was heard in May 2010 before the Honourable Madam Justice Low of the Superior Court of Justice. On June 23, 2010, she dismissed the application, in part on the basis that the issues were not justiciable because there were other ways of bringing the issues before the courts.

The families appealed the decision to the Ontario Court of Appeal and the case was heard on September 7 and 8, 2011. On November 15, 2011, the Court of Appeal overturned the Superior Court’s decision and held that the families did in fact have standing to seek the declaration. The Court went on to find that while officers are entitled to speak to a lawyer prior to writing their notes about their rights during an SIU investigation, the law did not permit them to have a lawyer assist in the preparation of notes or inspect the notes for controversial statements that could leave the police officers vulnerable to criminal charges.

Ontario Court of Appeal decision: Schaeffer v. Wood, 2011 ONCA 716

The officers maintained that they had an unfettered right to consult with counsel in advance of the preparation of their notes and sought leave to appeal the decision to the Supreme Court of Canada. The SIU also sought leave to appeal, submitting that even the limited right to counsel permitted by the Ontario Court of Appeal went too far.

SIU Factum: Response to Leave and Supporting Cross Appeal (00399387)

The Supreme Court agreed to hear the appeal on April 19, 2013. On December 19, 2013, the majority held that police officers are not entitled to consult with lawyers, even for basic legal advice, ahead of preparing their notes. To allow such consultation would undermine important objectives of the legal regime governing the work of the SIU: the maintenance of a police oversight body that is both independent and perceived by the public as independent; and, the creation by police officers of notes about police officers’ observations not distorted by biases, omissions, and/or inaccuracies.

Supreme Court of Canada decision: Wood v. Schaeffer, 2013 SCC 71

May 2012

On October 8, 2010, Peel Regional Police sought a court declaration prohibiting the SIU from continuing its investigation of an historical sexual assault allegation against a retired Peel Regional police officer. The police service argued that the SIU was without statutory authority to investigate incidents that pre-dated the Unit’s formation in 1990 or incidents involving retired officers. On May 3, 2011, a judge of the Ontario Superior Court ruled that the SIU did in fact have the jurisdiction to investigate incidents that occurred before the Unit came into existence and incidents involving retired police officers.

Ontario Superior Court decision: Metcalf v. Scott, 2011 ONSC 1292

The applicant appealed the decision to the Ontario Court of Appeal, which heard the case on December 13, 2011. On May 7, 2012, the Court of Appeal affirmed the lower court’s ruling, confirming that the SIU could investigate retired police officers and pre-1990 incidents.

Ontario Court of Appeal decision: Peel (Regional Municipality) Police v. Ontario, 2012 ONCA 292

Dec 2011

In December of 2011, the Ontario Ombudsman released a follow-up report titled, “Oversight Undermined.” With respect to the SIU's progress, Mr. Marin stated, "Based on my review to date, I am satisfied that the SIU has made significant strides to reorient its operations…”

The report focused on the Ministry of the Attorney General’s implementation of recommendations outlined in the 2008 Ombudsman report. The Ombudsman reiterated a number of those recommendations aimed at the Ministry and the Government of Ontario. Many of them focussed on the need for legislative reform.

Read: Oversight Undermined

Then Director Ian Scott responded to the release of this report.

Read: SIU Responds to 2011 Ombudsman Report

Oct 2011

The family of a 15-year-old boy shot by a member of the Toronto Police Service sued the SIU for negligent investigation. The province on behalf of the SIU brought a court application to have the lawsuit dismissed on the basis that public investigators do not owe a private law duty of care to families of victims of crime in the conduct of criminal investigations.

When the matter first came to court, the presiding judge dismissed the province’s application and the matter was appealed to the Ontario Divisional Court.

On June 4, 2010, a majority of the Divisional Court panel dismissed the province’s appeal of the lower court decision.

The province appealed to the Ontario Court of Appeal. That appeal was heard on February 22, 2011. In its decision, released on April 8, 2011, the Court of Appeal agreed with the SIU position that public investigators do not owe a private law duty of care to the families of victims of crime in the course of criminal investigations.

Court of Appeal decision: Wellington v. Ontario, 2011 ONCA 274 (O.C.A)

Leave to appeal that decision was denied by the Supreme Court of Canada in October of 2011. By refusing leave to appeal, the Supreme Court of Canada indirectly affirmed that the SIU’s investigations were meant to benefit the public as a whole rather than any particular person with an interest in a given investigative decision. This implicitly affirmed the SIU’s institutional independence.

Apr 2011

In late 2009, the Attorney General asked the Honourable Patrick LeSage, a former Chief Justice of the Superior Court, to work with the SIU and police groups on resolving various issues. Mr. LeSage's recommendations were publicly released on April 7, 2011.

Read: Report Regarding SIU Issues

The following changes, under a new regulation, came into force on August 1, 2011: 
  •  prohibit witness officers from being represented by the same legal counsel as subject officers  
  • require that a police officer's notes be completed by the end of the officer's tour of duty, except where excused by the Chief of Police 
  • explicitly provide that a police officer involved in an incident shall not communicate directly or indirectly with any other police officer involved in the same incident concerning their involvement in the incident until after the SIU had completed its interviews.

Sep 2008

The Ontario Ombudsman released, “Oversight Unseen: Investigation into the Special Investigations Unit's Operational Effectiveness and Credibility,” a systemic report on the operations of the SIU. The Ombudsman recommended, among other improvements, that the SIU receive its own statute that would clarify its role in overseeing police officers, and that the SIU should release to the public Director’s Reports in cases where no charges are laid, albeit redacted to avoid the release of certain sensitive information.

Read: Oversight Unseen

Then Director James Cornish welcomed the Ombudsman's report on the SIU as helping to improve SIU processes and maintain public confidence and trust.

Read: SIU Director Responds to Ombudsman's Report, September 2008

Then Director Ian Scott provided a one-year update on what progress had been made in relation to the Ombudsman’s recommendations.

Read: SIU Moves Forward on Ombudsman's Recommendations

Feb 2003

The Attorney General once again appointed Mr. Adams to conduct a consultative review aimed at evaluating the implementation of the 1999 SIU reforms.

On February 26, 2003, Mr. Adams’ Review Report on the Special Investigations Unit Reforms Prepared for the Attorney General of Ontario was released. The report found that increased public funding and regulatory changes supporting the SIU had been successful in building police and community confidence in the SIU and in providing a more effective regime for SIU investigations.

Read: Review Report on the Special Investigations Unit Reforms Prepared for the Attorney General of Ontario by the Hounourable George W. Adams, Q.C.

Jan 1999

Following the Report by Mr. Adams, the Ontario government implemented, "Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit,” as a regulation under the Police Services Act. Under the regulation - O Reg 673/98 - a police officer’s failure to comply with any of its provisions became a misconduct offence under the Police Services Act. In addition to the regulation, the Unit's funding was increased to $5.3 million. This marked a new beginning for the SIU.

May 1998

The Attorney and Solicitor Generals of Ontario appointed a former Superior Court Justice, the Honourable George W. Adams, Q.C., to consult with community and police organizations about ways to improve the relationship between the SIU and police.

On May 14, 1998, the Consultation Report of the Honourable George W. Adams, Q.C. to the Attorney General and Solicitor General Concerning Police Cooperation with the Special Investigations Unit was released. The Report made 25 recommendations, the most important being that the SIU be given resources commensurate with its important mandate and that a detailed regulatory framework for SIU investigations be established.

Read: Consultation Report of the Honourable George W. Adams, Q.C. to the Attorney General and Solicitor General Concerning Police Cooperation with the Special Investigations Unit

Nov 1996

Roderick M. McLeod, Q.C., was appointed to conduct another review of police oversight in Ontario and the system for public complaints about police. His November 21, 1996 report, titled, A Report and Recommendations on Amendments to the Police Services Act Respecting Civilian Oversight of Police, called for regulatory requirements to be established for police cooperation with the SIU. However, no changes were made at the time to the SIU.

Read: A Report and Recommendations on Amendments to the Police Services Act Respecting Civilian Oversight of Police

Jun 1992

Following the Yonge Street Riots, Stephen Lewis, the advisor on race relations to then-Premier Bob Rae, released his report titled, “Racism in Ontario: Report to the Premier by Stephen Lewis.” This report recommended policing reforms, including some directly relating to the SIU. A concern was raised about the SIU’s credibility, and Mr. Lewis recommended that the Unit be made accountable to the Attorney General, who is responsible for the provincial justice system, rather than to the Solicitor General, who is responsible for policing. The Lewis Report, released on June 9, 1992, also recommended an increase in funding.

Read: Report on the Advisor on Race Relations

In April of 1993, the SIU was moved from being under the auspices of the Solicitor General to the Ministry of the Attorney General, in order to give it greater separation from the police.

Aug 1990

The Special Investigations Unit began its operations.

Apr 1989

During the mid-1980s, a series of interactions involving police and people from visible minority groups raised concerns about the way police officers’ shootings of civilians were being handled. Police services investigated themselves or another police service was assigned to conduct the investigation. The public sentiment was that such investigations of police by police lacked the necessary objectivity required to instill public confidence. 

Following the deaths of several black men, hundreds and thousands of community members took to the streets in protest. This resulted in Mr. Clare Lewis being appointed by the Solicitor General of Ontario to Chair the "Task Force on Race Relations and Policing" in December of 1988. 

In April of 1989, the Task Force submitted its report, which made 57 recommendations for changes in the law on the use of force by the police and on police training, as well as a recommendation to create an independent investigative body with the power to lay criminal charges when warranted. 

Read: The Report of the Race Relations and Policing Task Force