Recent cases of police failing to promptly notify the Special Investigations Unit of serious injuries to civilians have led to demands by critics that officers face consequences for not complying with the law.

The Police Services Act states that officers must immediately notify Ontario’s police watchdog, which probes cases of police-involved death, serious injury and allegations of sexual assault.

With the provincial government drafting legislation in response to the recommendations from Justice Michael Tulloch on improving police oversight, lawyers and former SIU directors say it is an opportune time to consider adding sanctions in the law for police officers who do not immediately notify the SIU.

“There should be consequences, but it’s a sad day when you need sanctions to make police officers enforce the law, because that’s what their job is,” said Howard Morton, a lawyer and former SIU director.

The Toronto Police Service has faced backlash for failing in their notification duties in at least three cases brought to light this summer.

In the case of 19-year-old Dafonte Miller, allegedly beaten by Const. Michael Theriault, who was off duty in Whitby, and his brother Christian, the SIU found out about the December 2016 incident only after being contacted in April by Miller’s lawyer, Julian Falconer. The Theriault brothers now face a number of criminal charges.

In August, the SIU announced it was laying an assault charge against Const. Joseph Dropuljic in the alleged beating of a 25-year-old man — a case that came to the agency’s attention 11 months after the alleged assault through Toronto police, but only after the police force had been contacted by another police oversight body.

And last week, the Star revealed that SIU director Tony Loparco wrote to Toronto police Chief Mark Saunders last year informing him that police failed to immediately notify the agency about a 2015 incident in which a man was sent to the hospital while bleeding from his ears after a police raid. Loparco said the failure to immediately notify the SIU “deprived” investigators of important evidence.

“It is my hope that you will implement appropriate educational requirements for your officers so that similar problems do not arise in the future,” Loparco wrote to Saunders.

Although people injured in police encounters can go to the SIU directly, the agency largely relies on officers themselves to comply with their notification duties. Failure to do so should warrant actual consequences — legal and/or disciplinary — for not following the law, critics say.

“(The SIU) rely on the police to advise them, and so it makes this a particularly vulnerable area in respect of those who seek to undermine the SIU mandate,” said Falconer, who has represented many families of people killed or injured by police.

“There’s a lack of respect for the role of the SIU and there’s a lack of incentive to require the police to comply with the law,” he said.

Falconer pointed to the fact that in police investigations of civilians, there is rarely hesitation to lay an obstruction of justice charge against an individual who actively tries to undermine the probe. Yet in the civilian investigations of police, the SIU appears reticent.

“You have to ask yourself: what’s going on and where are the incentives? The incentives are actually for police to undermine the SIU because they face real jeopardy if the SIU does its job properly, and the police face absolutely no consequences for undermining the SIU,” Falconer said.

André Marin, the former Ontario ombudsman who served as SIU director from 1996 to 1998, said he never laid an obstruction of justice charge, though he came close.

“The prevailing thought from the (attorney general) at the time was to stick with a narrow interpretation of the mandate. I don’t believe any SIU director did so either,” he wrote in an email.

In February, however, Loparco did charge Ontario Provincial Police Const. Sean Coughlan with two counts of obstruction of justice — the first time the watchdog has laid the charge, according to the SIU.

The charges against Coughlan stem from a motor vehicle accident involving him in Dawn-Euphemia, north of Chatham-Kent, which resulted in the officer also being charged with one count of criminal negligence causing bodily harm, two counts of perjury and one count of obstruct peace officer.

According to a court document outlining the allegations, Coughlan is alleged to have provided false information about his involvement in the accident and to have made false statements in a police document to obtain a search warrant, among other allegations. Further details of Coughlan’s alleged false information have not yet come out in court.

Coughlan’s lawyer, Phillip Millar, told the Star the SIU has “thrown the book” at his client, who is “one of the nicest cops you’ve ever seen.”

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Millar, who has worked as a Crown attorney as well as a criminal defence lawyer, says he has seen egregious cases where he alleges police obstructed justice, yet they faced no consequences from the SIU. He doesn’t understand why the watchdog would lay charges against an officer who was “just doing his job.”

“My sense is, this is an easy case to make it look like you’re going hard on police,” Millar said.

Falconer said the province should amend the law by making it a provincial offence to knowingly hamper an SIU investigation. (A provincial offence does not lead to a criminal record, but does carry penalties such as a fine and/or jail time.)

He pointed out that such a stipulation already exists in the law for officers who get in the way of investigations by another police oversight body, the Office of the Independent Police Review Director.

Morton, the former SIU director, said there should be a range of consequences.

“If it amounts to obstruct the course of justice, then a criminal charge should follow. If it’s less than that, if it’s negligence, then there should be some disciplinary sanctions,” he said.

It’s a high bar to prove obstruction of justice, said another former SIU director, Ian Scott, who never laid such a charge during his tenure at the agency.

But Scott did have issues with police not promptly notifying him, especially in serious injury cases, and his approach was to raise them in letters to chiefs, including then-Toronto police chief Bill Blair.

But he also acknowledged that that approach did not lead to real change.

“How to address the issue: the government has to adopt the recommendations from the Tulloch report,” Scott said.

He pointed to recommendations that police discipline hearings be taken out of police stations and have the hearings prosecuted and adjudicated by an independent civilian body.

“The ultimate solution is really the government implementing these recommendations because it will deal with what appears to be, at least with some police services, a systemic issue, that being delayed notification and non-notification.”

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