10:35 pm - 01/03/2013
The province’s police watchdog says it has been forced to close an investigation into allegations a man was beaten unconscious by Toronto officers this summer because police are keeping essential information — the alleged victim’s complaint — secret.
Toronto police quickly fired back, with spokesman Mark Pugash saying the claim is “just comprehensively wrong.”
Ian Scott, director of the Special Investigations Unit, said Wednesday he was unable to conduct an “adequate” probe into a brutality complaint made by Tyrone Phillips, who alleges police beat him up during his arrest outside a nightclub.
Toronto police, Scott said, have refused to provide the SIU with Phillips’ complaint, first filed to the Office of the Independent Police Review Director, a provincial agency that probes grievances against police, then forwarded on to police.
The result is an “almost comical situation” where the agency charged with probing police activity does not have access to the complaint, Scott said.
“In my view, the refusal of the TPS to provide the SIU with a copy of the complainant’s statement … may be a breach of Toronto Police Service’s duty to fully co-operate with the Unit,” Scott said in a statement.
Pugash responded swiftly Wednesday, saying the force does not have the right to release the complaint because it belongs to the OIPRD.
“We don’t have a choice, this is not our document,” he said. “I’m puzzled as to why Mr. Scott has brought us into this — this is a matter between the SIU and the OIPRD.”
The OIPRD, meanwhile, has a policy that only permits it to share information with the police service involved.
The incident stems from an arrest in the early morning of July 28 outside a Toronto nightclub. Phillips, 27, claims he was beaten unconscious during his arrest; two visits to the hospital confirmed he suffered a concussion.
Ten days later, he filed an online complaint to the OIPRD. That agency is required by law to refer complaints to the police force involved, and accordingly it forwarded the grievance to Toronto police for investigation the following month.
In October, Toronto police sent the complaint to the SIU, which probes every police-civilian altercation that involves serious injury or death.
But when SIU investigators requested relevant documents from Toronto police, the force declined to hand over Phillips’ grievance, saying it was not theirs to pass along.
The SIU then approached the OIPRD directly for the complaint, but was told they could not provide the document.
In a further attempt to obtain the complaint, the SIU asked Phillips to authorize the release of his complaint to the SIU. His written consent was sent to Toronto police, but it again declined to send along the complaint.
“Doesn’t matter,” said Pugash, when asked about the written consent; the fact remains, he said, that the police did not have permission to release the document from the OIPRD.
Pugash could not say whether this situation has previously occurred, or if Toronto police have ever passed along information from the OIPRD to the SIU.
“The short answer is that I don’t know and I’m not sure that it would be possible to get a definitive answer, given the number of things we deal with,” he said.
OIPRD spokesperson Rosemary Parker said the Police Services Act requires the office to preserve the confidentiality of complaints it receives.
It’s “not inconceivable” that the OIPRD would release information to a third party, such as the SIU, provided permission had been granted by the complainant. But she did not know of any previous occasions where that had occurred.
While the SIU deals with police behaviour that may be criminal, the OIPRD often deals with other complaints, such as discrimination.
“We technically don’t cross over so much,” said Parker, who declined to speak about the case specifically.
All complainants, Parker said, can request a copy of their original complaint, which they could then use to file another complaint with the SIU.
Phillips could not be reached Wednesday to say if he had attempted to obtain his complaint.
Scott did not reply to repeated requests from the Star for information on whether Phillips could have simply provided a new complaint to the SIU.
Peter Rosenthal, a lawyer and University of Toronto law professor, said the Toronto police service has a statutory duty to co-operate with the SIU. That means it is required to turn over information, “no matter how obtained,” barring rare circumstances, he said.
“(Phillips) has given his consent, so what possible excuse can Toronto police service have for not providing his complaint?” he said. “In my view they have a duty to pass it on.”
Rosenthal said there isn’t much precedent for how this type of overlap should be dealt with since the OIPRD is relatively new and the way it has handled complaints has varied.
This case suggests there should be better communication between the OIPRD and the SIU, he said.
Scott said he will reopen the investigation if Toronto police choose to provide Phillips’ statement to the SIU.