“No Basis to Proceed with Charges”: SIU should Compel Officers to be Interviewed by E MacDonald

“No Basis to Proceed with Charges”: Special Investigations Unit should Compel Officers to be Interviewed

The Ejaz Choudry case highlights an existing issue that has recently been spotlighted in Ontario. This issue is regarding the number of wrongful deaths arising from mental wellness checks. A mental wellness check is where police are called (usually by a family member or friend) to check in on someone with a history of mental illness who may be in crisis. Recently, there have been a number of cases in the news including Ejaz Choudry’s where the individual meant to be checked in on during the wellness check was killed by a police officer. Cases such as Ejaz Choudry’s have caused the public to question the justice system and are important in considering what accountability looks like for police officers. When a situation like this occurs, an agency known as the Special Investigations Unit (SIU) is called to investigate. During the investigations interviews are conducted with the officers at the scene in order to collect evidence on what happened. However, the officer under investigation for killing an individual does not have to give an interview. Police officers should be held to a higher standard than civilians are and therefore the officer under investigation should be compelled to be interviewed to discuss why their use of force was reasonable.

The SIU is an Ontarian “civilian law enforcement agency”[1] that conducts investigations where death, or serious injury due to actions of an officer has occurred. Sexual assault investigations involving officers are also conducted by the SIU. The SIU Director decides if there is a reasonable belief that a criminal offence has been committed and, if so, a charge is laid. In these investigations, the SIU defines two types of officers involved. A “subject officer (SO)” is the officer whose conduct is being investigated[2]. The other officers involved are “witness officers” who witnessed the incident or was associated with what transpired. A subject officer cannot be compelled to conduct an interview or turn over any notes taken about the incident.[3]

Under the Canadian Charter of Rights and Freedoms subject officers have the same right to silence and to protect themselves from self-incrimination as civilians do. However, police officers should be held to a higher standard than a regular citizen and they should be compelled to partake in an interview. If the subject officers are not compelled to partake in an interview, they should be expected to explain why their use of force in the moment was reasonable. Former Ontarian SIU Director Howard Morton thinks that subject officers should be required to interview or disclose their notes relating to the incident.[4] His logic follows that those officers are held to higher standards than regular citizens because they are public servants entrusted to protect civilians and use extraordinary powers granted to them to do so. This higher standard is due to the public trust in officers and the authority they hold as well as their ability to carry weapons.[5] Therefore, he argues that the right to remain silent should be overridden by another Charter right, that of “reasonable limits”. This means that limiting the right to remain silent would be legal if the purpose is demonstrably justifiable in a free and democratic society. It would be demonstrably justifiable because police officers have a duty to protect and are accountable to the public as they have the public’s trust.

Even if there is no limit on the right to silence and the right to self-incrimination during an SIU investigation, a police officer’s ability to refuse participating in an interview after the fact is senseless. An ordinary person can be brought in for questioning. While these individuals are not legally obliged to answer any police questions, this does not preclude them from being asked questions in the first place. At the very least police officers should be brought in to answer questions, and then if the individual so desired, they could refuse to answer.

Section 25 of the Criminal Code permits police officers to determine a reasonable use of force and justifies this use of force. To summarize the section states that if an officer acts on reasonable grounds, they are justified in doing what they need to do and in using as much force as is necessary for that purpose[6]. An officer is not justified in the use of extreme force unless that officer reasonably believes that it is necessary for preservation of others or themselves.[7] Therefore, as outlined in the statutory framework, it is reasonable to use force when it is subjectively believed to be necessary in that moment. This is the most prominent issue in cases where an officer uses lethal force. As a result, it only seems logical that an officer, at minimum, should be asked and required to answer questions pertaining to their thoughts in the moment that led to the belief that their use of force was reasonable. If not, the SIU has little evidence to pursue prosecution for cases of seemingly unreasonable uses of force when the subject officer refuses to answer and there are few witnesses.

In the case of the death of Ejaz Choudry, the daughter of the victim called 911 requesting for her father to be checked on. He was recently released from a hospital and his daughter was concerned he may hurt himself as she believed he had a knife[8]. Police arrived and attempted to communicate with him; however, Mr. Choudry spoke very little English. The officers then entered the apartment. The officers instructed Mr. Choudry to put the knife down; however, when he did not do so, he was shot multiple times with rubber bullets then fatally shot by a pistol.[9] The subject officer in this case refused to turn over notes as well as to go for an interview.

The SIU report concluded there was no basis to proceed with a prosecution.[10] The Director stated, “While I have no evidence from the SO about his state of mind, WO #11 heard the SO say, ‘I had to do it, I had no choice,’ immediately after the shooting.” He inferred that the officer had the subjective belief that it was necessary to use his firearm.[11] It is evident there was no statement or notes from the subject officer regarding his use of force. Therefore, there is no evidence from the subject officer about his subjective opinion regarding his use of force. Evidence about the subject officer’s subjective opinion regarding his use of force would be a statement from that officer or their notes describing the incident. While there may be some evidence pointing to the objectivity of reasonable use of force, that is arguably for a jury or judge to decide. It is cases such as these whereby requiring the subject officer to provide answers as to their use of force arguably better protects the public, and the justice system. Without such evidence, the SIU is forced into making significant decisions from inferences. This loophole allows officers who should be held accountable for their actions when using lethal force to evade repercussions. Police officers should be held to a higher standard as they are granted extraordinary powers, most notably the ability to carry and use a weapon. This higher standard is because officers have a duty to protect and serve the public and they have more power and authority than ordinary citizens. Public confidence in the administration of justice and trust for police officers has been rapidly unravelling[12]. In order to protect the public’s confidence in the justice system police officers should have to answer as to why their use of force was reasonable. Issues such as evading questioning and accountability when a vulnerable person has been killed adds kindling to the fires, and places the entire justice system in disrepute

[1] “General Information”, online: SIU: Special Investigations Unit < https://www.siu.on.ca/en/faq.php> [General Information]. [2] André Marin, Ombudsman report : oversight undermined : investigation into the Ministry of the Attorney General's implementation of recommendations concerning reform of the Special Investigations Unit (Toronto, Ontario: Ombudsman Ontario, 2011) [Marin]. [3] Supra, General Information, note 1. [4] Shanifa Nasser “Police Officers in deadly encounters should be required to talk, former SIU director says”, CBC News (24 July 2020), online: < https://www.cbc.ca/news/canada/toronto/police-siu-ontario-1.5661885>. [5]Ibid. [6] Criminal Code, RSC 1985, c C-46, s 25. [7] Ibid. [8] Joseph Martino, “SIU Director’s Report- Case #20-OFD-144” (March 15th, 2021), online: SIU: Special Investigations Unit < https://www.siu.on.ca/en/directors_report_details.php?drid=1201>. [9] Ibid. [10] Ibid. [11] Ibid. [12] Supra, Marin note 2.