Experts offer a range of ideas on how Manitoba's flawed police-complaint system can be fixed

Manitoba's justice minister has admitted the way the province handles complaints against municipal police is flawed and he is committed to changing it, while experts have some ideas on ways to fix it.

In the past decade, Manitobans filed more than 1,700 complaints with the Law Enforcement Review Agency about police but the vast majority of those were dismissed by the commissioner or abandoned by the complainant.

A CBC News analysis of publicly available court hearings posted by LERA shows that only two police officers have faced discipline during the decade.

"If we're going to have confidence in our police in a democracy, then the public has to come forward and have some confidence and faith in the system," Wally Oppal, a former British Columbia judge and attorney general, said in an interview.

He's an adjudicator of police discipline cases in B.C. whose decades of experience in police accountability led to the creation of B.C.'s Office of the Police Complaint Commissioner in the 1990s.

"I think overall, Canadian police do a pretty good job when you compare our policing system to the Americans and many other countries around the world," he said. "But the expectations are high in a democracy. Canadians live in this era of accountability, so we want the police to be accountable for what they do." 

Experts in the field offered several ideas on how the LERA complaints process can be improved.

Complainants often don't have a lawyer

A 2020 independent review of the law governing policing in Manitoba said that while in the majority of cases police officers are represented by their association, complainants seldom have counsel.

"That's simply because they can't afford it," said Winnipeg lawyer Zilla Jones, who has represented clients with LERA complaints in the past. "That means often they are trying to meet this standard of evidence and put forward their case without the assistance of a lawyer." 

She said it probably discourages people from even trying to go through the complaint process.

"They know they can't do it unrepresented, especially when you're having to talk about your own trauma without someone there to help you," Jones said. "It's very, very difficult."

Wally Oppal says B.C. provides someone to help a person with a legitimate complaint navigate the system.

"British Columbia has what's called a public hearing counsel," who is there for the public interest and can help a complainant, Oppal said. 

Louis Harper, a lawyer from Garden Hill First Nation, agrees complainants should have legal representation.

"If the government of Manitoba had implemented the recommendation to have a permanent and independent lawyer … for every case, that would help the complainant," Harper said.

Legal Aid Manitoba provides help to low-income people who want access to justice, which could potentially include a LERA complaint.

A person can apply to LAM to see whether their income is low enough to qualify for help getting a lawyer for a LERA complaint. But LAM executive director Peter Kingsley says the complaint needs to have "concrete and compelling evidence," and will have to go through screening to determine whether it meets the criteria.

Officers are not compelled to talk

LERA commissioner Andrew Minor points to Section 19 of Manitoba's Law Enforcement Review Act that says a responding officer is not compelled to answer any questions. He says officers have the right to protect themselves against self-incrimination. 

At the same time, he says, he could not recall a case where a police officer refused to be interviewed.

Oppal says he thinks officers in Manitoba should be compellable, as they are in B.C. 

"I think the public has a right to know what happened. The public has a right to know why a police officer conducted himself or herself in the way it was done," Oppal said. 

Under B.C.'s Police Act, officers can be compelled to provide statements and answer questions from a complaint investigator, and must fully comply within five business days, unless an extension is granted.

LERA does have access to all police file materials and can review them.

Minor says LERA investigators can interview civilian witnesses and gather information, documentation, audio, and video from all sources to enable the commissioner to determine if there is sufficient evidence to support an allegation in a complaint.

30-day deadline to file complaint

The Manitoba government addressed this issue March 17 when it introduced legislation to change the Law Enforcement Review Act to extend the time limit for filing a complaint to 180 days after an incident happens, rather than 30 days. 

Manitoba was the only province to have a 30-day deadline, while in other provinces it was six months or a year. 

"We're committed to changing the time limit," Justice Minister Kelvin Goertzen said in an interview with CBC before introducing Bill 30, which he said "improves police accountability."

Manitoba pushes for provincewide code of conduct for police agencies

Winnipeg transit driver Karen Robson filed a LERA complaint about the night she was on her way home from work last December when Winnipeg police mistook her for a carjacking suspect and ordered her out of her vehicle at gunpoint.

LERA rejected her complaint because it was filed 31 days after the incident -- missing the deadline by a day.

Robson says she's glad the law will be changed, but wants the government to make it retroactive so LERA might eventually hear her case.

Complaint about police shut down over 'unreasonable' time limit for filing

Lawyer Zilla Jones, who has handled LERA complaints for clients, says 30 days is too short because people might face obstacles making a complaint.

"That may be difficult for people who have gone through something traumatic or maybe don't have a lot of education or English-language or French-language skills, or they have mental health issues or they're transient," she said.

Higher standard of proof required 

An external consultant's 2020 review of the Police Services Act says Manitoba "uses a higher standard of proof than is common: 'clear and convincing evidence' rather than the usual 'balance of probabilities."

"A balance of probabilities is essentially 50 per cent plus one," Zilla Jones said, whereas Manitoba's standard of "clear and convincing evidence" puts greater onus on the complainant.

"It means that a judge has to be really convinced about the wrongdoing of the police officers, so they can't just say, 'well, it's more likely or more probable,' which is what the balance of probabilities would give you," Jones said. 

Jones says that means a judge has to apply greater scrutiny to the complainant's evidence, and "it means that the police can shed more doubt on that person's evidence."

Oppal says the standard of evidence in B.C. is a balance of probabilities rather than the higher standard used in Manitoba. 

"I would think that the reason the [Manitoba] legislature enacted that provision was to make sure that there are not specious or unfounded allegations against the police," Oppal said, noting that officers who are under investigation often have their careers on the line. 

However, Oppal adds, "Certainly, there is no evidence that having the different burdens of proof has led to any kind of a problem in B.C."

In response to complaints being dismissed due to lack of evidence, LERA commissioner Minor says it's not enough for a complainant to provide a statement of what happened in an incident. 

He says "there must be verifiable evidence beyond the statement of the complainant that supports or corroborates the complaint statement."

"Sufficient evidence includes: independent witness evidence, documentation, audio or video of the subject incident that evidences a disciplinary default," he said in an email to CBC.

Perceived lack of inclusivity

People who want to file LERA complaints may come from minority groups, marginalized communities, or in some cases may be transient.

Louis Harper, a lawyer who's also an adviser to the First Nations Health and Social Secretariat of Manitoba, says he has advised two people to go to LERA after encounters involving "disrespectful" conduct by police. 

"I think … one of the criteria of hearing complaints at LERA is if the police are disrespectful toward especially minorities," Harper said.

He said both people eventually abandoned their complaints because they didn't feel comfortable with the system. 

"It's not user friendly," he said. "They don't see any of their people in the office and they get discouraged."

He says it would be more effective for complainants if there were an agency similar to LERA that was Indigenous-led.