For a citizen whose complaint about a police officer results in a professional misconduct charge, walking into the ensuing hearing may be, well, jarring.

Ontario police tribunals have the look, feel and customs of a typical courtroom — except in the place of a judge in robes is a high-ranking police officer in uniform. The prosecutor also wears a police uniform.

Add to this equation a lawyer hired to represent the accused cop, and the complainant may be forgiven for thinking everyone is on the same team.

But questions about impartiality are not unique to complainants. The accused officers, too — whose jobs may be on the line — have their own concerns about an employer with, say, an axe to grind.

“There’s a reason it’s referred to as a kangaroo court by police officers,” said Peter Brauti, a sought-after police lawyer who often represents officers at misconduct hearings.

If passed, a massive set of policing legislation tabled at Queen’s Park Thursday would establish the Ontario Policing Discipline Tribunal, a body with the specific task of adjudicating disciplinary matters and ensuring public complaints aren’t handled by the police services themselves.

Replaced would be the current system, which allows police chiefs to appoint both the hearing officer and the prosecutor. Under the new regime, an independent adjudicator would act as the de-facto judge, and independent counsel from the Ministry of the Attorney General would act as the prosecutor.

The proposed change comes as a direct response to a recommendation from Court of Appeal justice Michael Tulloch, who in a report on police oversight released earlier this year said both police and complainants see the process as “rigged.”

“This is a much more intelligent way to get to the truth: independently,” said former Ontario ombudsman André Marin, who called the current system “incestuous.”

Howard Morton, a criminal defence lawyer and former head of the Special Investigations Unit (which probes deaths, serious injuries and allegations of sexual assault involving police) said the change could result in tougher penalties for officers, which he calls “way too lenient” under the current regime.

“I think bringing it within the ministry (of the Attorney General) may well result in more thorough prosecution in some cases,” Morton said.

A high-profile case currently before the Toronto police tribunal would, under the proposed legislation, be heard by an independent adjudicator. In fact, that is exactly what lawyer Selwyn Pieters has asked for.

Pieters’ client, Waseem Khan, complained to the Office of the Independent Police Review (OIPRD) about the conduct of Toronto police during the arrest of a man near Ryerson University earlier this year. Toronto police Sgt. Eduardo Miranda faces two professional misconduct charges, in part for telling Khan he could not video record the arrest with his cellphone (citizens have a right to record police if they are not obstructing their actions).

The misconduct case is ongoing, and as it stands Khan “doesn’t feel that he can get a fair hearing,” Pieters said in an interview Friday. He supports the province’s proposed changes and said he hopes it will help his client’s case be heard before a retired judge.

“This new legislation will work well for everybody and we’re embracing it. And hopefully Mr. Khan gets to benefit from it,” Pieters said.

Brauti, who is Miranda’s lawyer, said he “absolutely” supports having the case tried before a retired judge.

“I’d like to see all disciplinary matters be referred outside of the various police services, and move towards independent adjudication,” he said. The system proposed by the government could work, Brauti added, but stressed the importance of neutral individuals being tapped to hear the cases.

Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, said she supports both the independent adjudication of police misconduct cases as well as the new proposed complaint system.

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As recommended in the new legislation, the agency known today as the OIPRD would be renamed as the Ontario Policing Complaints Agency. Within the next five years, the agency would no longer refer any of its complaints back to the police service where the complaint originated for an investigation, as currently happens. It would conduct all of the investigations itself, at arms-length.

Mandhane added that she hopes stronger police oversight mechanisms proposed throughout the legislation will allow for more robust adjudication of complaints that involve systemic issues, such as racial bias.

Wendy Gillis can be reached at wgillis@thestar.ca

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