Outcome in unauthorized surveillance matter too swift?

This entire affair is a travesty of transparency, raising many questions. But before I go there, I have to respond to the former Mayor’s call for a “meeting” of the Council and Police Commission. To what end? To instruct the Commission to instruct the Police Chief to appeal the penalty decision (he can’t)? Or dictate some other result, or dictate the conduct of future discipline reviews? I have a hard time discerning any purpose for which the Council is empowered, or which wouldn’t be clearly inappropriate. There is a legislated separation between a City Council and a police commission (and police force) for very good reasons to which Mr. Tarleck seems to allude, and yet he calls to apply the techniques of the Police State to combat police misconduct? Is no one shocked by this?

One of the collateral effects of the transparency deficit here is that an otherwise innocent commentator such as Mr. Tarleck can write things that seem true and yet are significantly inaccurate (just to overemphasize, I’m not blaming him here). Let’s start with the last paragraph.

Chief Woods did not announce the outcome, and I have a hard time characterizing the result as “swift.” The Chief was only moved to comment publicly because an intrepid reporter out of Medicine Hat (why not Lethbridge?) broke this story. He would have said nothing but for the CHAT news story and says, in effect, he was bound to say nothing but for the story now hitting the public domain. And yet he also suggests the LPS transparently released a “digest” of the discipline decisions (which raises the question, why couldn’t he comment on that?). That report on the LPS website is an anonymized list of the “charges” (without any description whatsoever of the alleged misconduct), with a statement of penalty. It could only be less informative if it didn’t exist at all.

The CHAT reporter obtained the actual record (the “Record”) of the reasons for the decision (and CHAT uploaded it to scribd.com). It runs to 30 pages and reads exactly like the kinds of disciplinary decisions that are regularly released publicly by all sorts of self-governing professional bodies. I have no idea why that sort of regime does not seem to apply to the police (except for the federal regime applying to the RCMP, interestingly). Perhaps the City Council could indeed do something useful here and amend its bylaw respecting the police commission so as not to apply a blanket of secrecy over anything to do with “discipline” or “personnel conduct.” Even a modicum of discretion and judgment there would do wonders for genuine transparency and accountability, and the public trust those ideals are supposed to engender.

As to the “swift” result, the Record tells another tale. The misconduct here occurred in April of 2017. An initial investigation was concluded in September of 2017 and resulted in “official warnings”. Another investigation started in March 2018 and didn’t result in regulatory “charges” until July 2019. The Herald erroneously reported the charges were brought in June 2020, but that is when the officers entered guilty pleas (after a months-long “plea-bargaining” type of process).

Another collateral effect of the failure to release the Record (part of the transparency deficit) is that it is arguably unfair to the officers involved, and unnecessarily erodes confidence in the LPS. It permits characterizations like the officers “used their authority to eavesdrop on a group of citizens,” as if the misconduct consisted of some kind of Watergate-style wiretapping. Reading the Record, that characterization is manifestly inaccurate. It also permits the far-too-easy conclusion that the penalties meted out are “a slap on the wrist.” Again, reading the Record and considering the range of penalties available and the factors to be applied, that is not a fair assessment. The penalties are significant and there are differences on the facts that support the different penalties applied. Reasonable people can reasonably disagree on the penalties applied — I myself might argue that W should have faced dismissal, but I cannot say the result was plainly unreasonable or unjustified.

But let us return to some of the troubling issues. The presiding retired superintendent who authored the Record wondered why there were two investigations. Good question, deserves an answer. The Calgary police investigated initially, and didn’t discover the conduct which was truly egregious – that W had tailed one of the former Minister’s guests in the hope of finding an excuse to make a traffic stop (presumably to obtain the person’s identity), then ran a CPIC check of the person’s plates when that option didn’t pan out. Absent those crucial facts, the Police Chief (Davis, at the time) determined that the official complaint lodged by the former Minister was “not serious” and did not merit any charges or hearing, resulting only in an informal “official warning.” The former Minister was so advised, and so ended the complaint process.

Yet the CPS did discover the unauthorized CPIC check, which someone (who?) characterized as a “collateral issue.” In March 2018 the “collateral issue” generated a new investigation, this time by the Medicine Hat police. Why not the CPS, who discovered the issue? Why treat it as a separate incident? Because it involved the unknown person tailed, rather than the former Minister? Was that person ever informed of the unauthorized check? As no one was named in the capacity of complainant for that specific action, I will guess not. And that is significant because, without an official “complainant” there is no one who can appeal the penalty decision. And because, if the former Minister is no longer the official complainant, the otherwise legislated requirement to keep her informed disappears.

Then there is the egregiously long period of time between the start of the second investigation and the laying of regulatory charges. Why did it take 16 months to get there? The charges against W were laid on July 8, 2019, those against C on July 10. Coincidentally there was a notable news item on July 8, described by local media as a “surprise” – former Chief Davis announced his resignation with nearly two years remaining on his contract. The timing of that, let’s call it “curious.” Add to that another curious bit of time – the unusual amount of it taken to find a new Chief. And before we blame COVID for that, the Police Commission went out of its way long before the pandemic to announce that they intended to take a long time filling the position (to “get it right” of course). These could be unfortunate coincidences, and I truly despise conspiracy-theory reasoning (and this smacks of it, admittedly), but this still makes me queasy.

For those still concerned with the severity of the sanctions, there is the fact that the Chief of the local force negotiated the penalty in a “plea bargain.” There is nothing inherently wrong with that, but maybe it should be otherwise. A Chief should be owed some deference in determining which officers to keep (and rehabilitate) and which to fire, but it is also a concern that a Chief may be motivated to punish less harshly out of a concern to keep the (labour) peace. A truly arms-length process for matters of discipline involving the public would arguably enhance accountability – it is a public policy debate that ought to be encouraged in the wake of this matter, rather than the partisan one-upmanship of outrage-posturing our Provincial legislators seem to prefer.

While it is the Chief of Police who is ultimately responsible for allegations of officer misconduct, the Police Commission cannot have been blind to this affair. Anytime the Chief desires the assistance of an outside police force for investigative purposes (twice here), that request must go through the Chair of the Commission. No charges may be laid against an officer more than 6 months after the alleged misconduct, unless the Police Commission authorizes a delay. That must have occurred at least twice here.

Yet there is no public record of any kind from our Police Commission that indicates they ever dealt with a matter of discipline in any way. While it is perfectly understandable that specifics not appear in a public record before the conclusion of a matter, there is no reason that a public record could not be maintained of decisions to engage the CPS or the MHPS to conduct “an investigation,” or to record resolutions that the laying of charges be delayed in respect of an unnamed matter. Just those little steps could go far in demonstrating that the Commission and the LPS take discipline matters seriously. Just those little steps would alert the public (and the media) that there are things afoot, things which the public are entitled to know (discipline hearings are, by the way, supposed to be public!).

I gather the Justice Minister has referred something to ASIRT. I doubt there is much point in that, unless there are other facts which didn’t make it into the official Record. I rather think more fruit would be borne of an inquiry into governance issues here. Anything that would help lift the oppressive fog of the culture of secrecy of Lethbridge’s civic institutions would be welcome.