Police watchdog under scrutiny again after a man died in a violent arrest in Canada

Ontario's Special Investigations Unit was created as an independent civilian-run body that took investigations of police conduct out of the hands of police. But it's been slammed for secrecy and accused of protecting police.
August 3, 2016, 6:55pm
A protest honoring Abdirahman Abdi, who died after an arrest in Ottawa. (Fred Chartrand/CP)

On the same day a Somali-Canadian man was violently arrested in Ottawa, in a fatal incident that has renewed outrage over use of force by law enforcement in Canada, another man died on another sidewalk following some sort of interaction with police.

Toronto officers were responding to reports of a possible shooting in the city's west end in the early morning hours of July 24. But what exactly transpired in the minutes leading up to the death of Jenyon Middleton, a 30-year-old father of two who suffered a fatal gunshot wound, or how a 25-year-old woman came to be shot in the leg in the same episode, is still a mystery. A police source told the Toronto Star the death was a suicide, although his mother, who phoned the police after hearing from a nephew that her son's building was on the news, wasn't given any answers.


And unless videos and photos taken by witnesses pop up online, that's usually the case for any criminal investigation in Ontario involving the Special Investigations Unit (SIU), which probes incidents that lead to death, serious injury, or allegations of sexual assault involving the police. Few details are ever made public unless charges are laid.

As tensions over police brutality against black people in the United States continue to escalate, scrutiny has also intensified in Canada, where several high profile deaths at the hands of cops in the province of Ontario has fueled a local Black Lives Matter movement.

And the SIU — created in 1990 as an independent civilian-run body that took investigations of police conduct out of the hands of police — has been both blasted for its lack of transparency and accused of working to protect police officers. Critics on both sides have found flaws in the unit's process, which cleared 94.5 percent of officers of any wrongdoing in the 2014-2015 reporting year.

Groups like Black Lives Matter Toronto believe the SIU has an inherent bias in favor of police that is rooted in who makes up the unit itself — and the latest death has fueled calls for reform.

'The SIU acts as judge, jury, prosecutor, and defense attorney for the cops.'

"The SIU acts as judge, jury, prosecutor, and defense attorney for the cops," said Rodney Diverlus, a member of BLMTO, who slammed the SIU as a "secretive organization whose work isn't in the public interest."

"They've made it clear through their reporting and through the decisions themselves that their goal is to absolve police officers and to keep information from the public and from the family," he said.


Even when cellphone and eyewitness reports exist, the SIU isn't any more forthcoming. Last week, Abdirahman Abdi, a 37-year-old Somali-Canadian man died after a violent altercation with police, the aftermath of which was caught on a video.

Witnesses have described police viciously kicking and punching Abdi, and hitting him with batons, with some saying he was also pepper-sprayed.

The police union has denied race had anything to do with how officers reacted, but the incident has nonetheless raised questions about how police deal with black people, new immigrants, and the mentally ill. Also at issue is whether or not use of force was excessive, as well as reports that the police tried to confiscate cell phone footage from witnesses when they should've just been securing the scene until the SIU arrived.

A woman walks by a sign in Ottawa memorializing Abdi. (Hilary Beaumont/VICE News)

But a full picture isn't likely to be painted for weeks or months — if it's ever made public at all. The first time the SIU ever disclosed details about an investigation was in April, in the face of immense public pressure to explain why charges weren't laid and what occurred when a mentally ill black man named Andrew Loku wielding a hammer was shot to death. Even then, the report was heavily censored, leading critics to say it raised more questions than answers.

At the time, BLMTO called the heavy redactions and contradictions to witness accounts that may have been overlooked "deplorable." They also took issue with the lack of consequences for an officer who tried to download and review video from the hallway where the shooting took place.


Julian Falconer, who successfully argued in front of the Supreme Court of Canada in 2013 that lawyers shouldn't be allowed to help or write police officers' notes while SIU investigators look at them, said transparency, rather than a lack of cooperation, is the more crucial issue at this time.

"People decide how well or badly the SIU has performed based on a specific outcome in a specific case," he said, adding that public reaction always depends on where the unit lands in their decision on whether or not to lay charges. "That is not a useful or appropriate measure for gaging their success. They're not supposed to be on a quota system."

Falconer sees the possibility of SIU reports being made public — by law, reports only have to shown to the Attorney General — in the future as a potential area of improvement.

While the unit doesn't release the names of officer or civilian witnesses, it does eventually announce whether or not the officers involved will be charged through a brief summary of an internal report. That's why groups like Black Lives Matter have been demanding more openness from SIU — and urging them to start reporting on the race of victims, in addition to age, gender, location and other factors that can help map out trends.

Related: 'We are scared of the police': Community reels after Abdirahman Abdi's death

Diverlus also said the number of former cops who work on the civilian oversight body could make the SIU sympathetic to police. Of the 53 people employed by the SIU during their probes, there are 15 full-time lead investigators, eight forensic investigators and 30 "as needed" investigators based throughout the province, the unit told VICE News in an email.

"Of our 15 lead investigators, 11 have no policing background and their experience spans several fields, notably workplace health and safety, medical oversight, national security and intelligence, immigration, corrections, transportation, and the legal profession," wrote spokesperson Kaia Werbus in an email, adding that the SIU only hired the most qualified investigators, regardless of their backgrounds.


"All of the SIU's investigations are unbiased and independent… without input from any police service," she wrote, noting that the director must be a civilian with no policing background.

But Falconer argues that while optically, "the balance could be better struck," he says it's a matter of resources — it costs less to employ retired police officers who receive pensions to work part-time — and that civilians investigators have also been some of the worst he's seen on the unit.

Ian Scott, who served as SIU director from 2008 to 2013, added that "the only people who could really fulfill the investigative experience were retired police officers, frankly."

Scott, like Falconer, said the unit often faces criticism from both sides.

"The reality is there will be interactions with the police that aren't going to lead to criminal charges because they have the protections to use reasonable force," he said.

"It's an area that you're never going to have social consensus on," said Scott, who while at the helm openly criticized the lack of cooperation on investigations, especially among the Toronto Police Service.

'The reality is there will be interactions with the police that aren't going to lead to criminal charges because they have the protections to use reasonable force.'

The SIU declined to comment on how much police cooperate during investigations currently, citing an ongoing review of police oversight bodies in the province. It would be "inappropriate" to comment on issues related to the review at this time, wrote Werbus.

Scott explained, however, that there are checks and balances to ensure the SIU conducts a fair and thorough investigation. For example, former officers weren't allowed to investigate forces they'd worked on previously, part-time workers can't be lead investigators, and the director, by law, can never be a former police officer.


Scott also pointed out that unlike in a regular criminal investigation, where witnesses aren't obligated to give statements to police, witness officers in SIU investigations are required by law to turn over their notes and submit to interviews. Subject officers — those directly involved in the incident — however, don't.

During Scott's tenure, about 300 files were opened a year, with 5 percent resulting in charges. Among them was the case of Constable James Forcillo, who shot and killed teenager Sammy Yatim on a Toronto streetcar in 2013. The shooting was caught on cell phone video, and posted online, prompting outrage and protests in Yatim's defense.

Forcillo was ultimately convicted of attempted murder and sentenced last week to six years in jail — the first officer in Ontario to have faced such a punishment.

Constable James Forcillo leaves a Toronto courthouse in January, 2016. (Photo by Fred Lum/Globe and Mail)

Diverlus credits viral videos that capture an incident and provoke public pressure as the key to obtaining justice, a notion that Falconer, who represented the Yatim family and many other victims of police brutality, disputes.

"There are many cases where the SIU has laid charges without videos. Have they had successful prosecutions? That's a different question," he said, adding that it's "common sense" that if illegal conduct is caught on video that charges will be laid.

In the end, much of the criticism of the SIU comes down to how much its work is shrouded in secrecy.

In the US, the names of police officers involved in incidents of violence are often revealed, allowing the public to examine those officers' histories for racism. There is also much more information available to Americans about any given case, including video evidence, and high-profile cases involving questions of race may also trigger a probe by the Department of Justice's civil rights division that looks at systemic issues within a police force. No such mechanism exists in Canada.

But despite its flaws, Falconer believes that Ontario has it better than the rest of Canada and the US in that the SIU is unique as an optically independent investigative body that is automatically brought in in situations of serious injury or death. Elsewhere in North America, he notes, it's normal and accepted for police to investigate police.

Follow Tamara Khandaker on Twitter: @anima_tk