Police ethics: a reform that favors the police lobby at the expense of victims' families?

Having to live with the death of your child is undoubtedly the worst ordeal a parent can go through. I noticed this when I was in contact with Mbombo Tshiteya. The years go by, but the pain and the memories remain vivid. “It's really weird! As we approach the date of David's death, memories come to the surface. It's like that every year in November and December,” she tells me. “It wakes up; you feel the pain in the same place; you remember things and ask yourself questions in everything you do; you don't want to do anything. It's like post-traumatic sequelae. We live with it, we are used to it, but as soon as we approach this period, it is as if we were sick.”

Mbombo Tshiteya explains to me that the whole family is still affected by David's death. Every year, her son Jonathan reminds her of the fateful moment when he heard the sad news. “Mom, you remember, that's when we came to knock on the door to announce David's death,” she said. Jonathan was the first to hear the news of his brother's death.

A difficult test for the Tshiteya, which is added to other adventures with which the family must now deal.

Indeed, this year, the anniversary of David's death comes in a particular context. On the one hand, the SPVM police officers mentioned in this case decided to appeal their conviction. On the other hand, last October, the National Assembly of Quebec adopted a bill that eliminates the right for third parties to file a police ethics complaint. However, it is thanks to the complaint filed by a third party, in this case the activist Alexandre Popovic, spokesperson for the Coalition Against Police Repression and Abuse (CRAP), that the police officers involved in the death of David Kalubi Tshiteya were summoned to appear in police ethics proceedings.

For the Kalubi family, who thought they had turned the page on this painful saga, the road to appeasing hearts and minds seems long. In addition to the immense pain of losing a son and a brother, there is anger and incomprehension in the face of a situation she would have done without. “I find it absurd, especially when you know that we have lost a child and that these police officers have hidden the truth”, lambasts Mbombo Tshiteya, for whom this situation “awakens painful memories”.

David's mother can't explain it all the more since the police were sentenced to 22 days of unpaid suspension. A “cookie sentence”, according to her.

She notes that since the death of her son, she and her family have had to deal with a difficult situation, feeling that they had not been properly considered by the authorities. “We were treated like a number. There was a desire to prove that it was not criminal. The case evolved like that, and then it was closed,” she recalls.

The Director of Criminal and Penal Prosecutions (DPCP) had in fact concluded that the evidence in the file did not allow it to be concluded that police officers Mathieu Paré and Dominique Gagné had shown criminal negligence.

For the Tshiteya family, it is a disappointment, especially as they were left to themselves during the entire investigation, says David Kalubi's mother. “We were presented with a done deal. We said that the police were not criminally responsible, and that's it,” she said.

M^Me Tshiteya says that the BEI never told her that the police had made false statements in the case involving her son. At the time of writing, the EIB had not responded to requests made by La Converse in this regard.

In addition to feeling left alone, the Tshiteya family had to deal with press articles that seemed to emphasize “things that were not timely,” says Mbombo Tshiteya. In particular, the fact that David was known to the police or was taking psychoactive substances. “There was even an insinuation that he died of an overdose,” she said bitterly.

The Tshiteya family remains convinced that the circumstances surrounding David Kalubi's death have not been fully clarified.

From the death of the young man to the conclusions of the DCPC, including that of the coroner, the Tshiteya family had the impression of remaining in the most complete fog. It was also through La Converse that she learned that the police officers involved in David's death were summoned to appear before the Police Ethics Committee following the filing of a complaint by Alexandre Popovic.

It was both a shock and a surprise for the Tshiteya. David's mother recalls, “I am a believer. I told myself that I did not have the tools to cope with what we were going through. I was wondering what I should do. Should I talk to God? Did I have to take action? When will we get a response? It was the subject of my prayers. And when we heard about Popovic, I said to myself: “There you go! God has heard our prayers.”

The unexpected “Robin Hood”!

Alexandre Popovic came into the Tshiteya case and into the life of the Tshiteyas by chance. It is by reading an article from Journal de Montréal that he learned about the case. “I saw a newspaper article that mentioned that a young man of barely 23 years old had died while in custody, waiting to appear for a small case in the municipal court,” recalls the spokesperson for CRAP. Without really knowing a lot of other details, I thought this story didn't smell good.”

Police officers have an ethical obligation to a person who is detained in their custody. They need to take care of his health and safety. The death of David Kalubi is therefore intriguing Alexandre Popovic, who is very involved in cases related to problem police actions. “I told myself that something had not worked in the system,” he explains. In the following days, he decided to file a complaint against agents Mathieu Paré and Dominique Gagné, knowing that an BEI investigation was then in progress. “I told myself that two investigations were better than one. By filing a complaint, I knew that it was triggering an investigation into police ethics, given the fact that it was a death,” he said.

Alexandre Popovic has filed dozens and dozens of complaints against the police or police officers, to the point of being considered one of the most prolific complainants of the police ethics system in Quebec. While most of them were rejected, as he himself told me, the one concerning agents Paré and Gagné was brought to an end, leading to the police being summoned before the Ethics Committee.

For Alexandre Popovic, surprise conflicts with satisfaction, especially since complaints against police officers very rarely lead to this stage of the process. “It was in October-November 2020. I have learned that the Commissioner for Police Ethics filed a summons before the Committee against Mathieu Paré and Dominique Gagné, recalls Popovic. As I said, I've had a lot of complaints, and I haven't had a lot of results like that. So yeah, for me, just that's a victory.”

The next one is a one-week hearing before the Ethics Committee. Present during the hearings, I was able to observe the attention with which Alexandre Popovic was following the case. Pen and small notebook in hand, with members of the Tshiteya family sitting next to him, he took notes like a journalist covering a matter of public interest. While he can boast of having succeeded in having two SPVM police officers summoned before the Ethics Committee, to the point of having them convicted for breaches of police ethics, the fact remains that his margin of manoeuvre is now reduced, taking into account the new provisions of Bill 14 on public security, which was approved last October.

A provision of the law that bristles

The old law provided that anyone could file a police ethics complaint. The news, filed by the Minister of Public Security, François Bonnardel, reduces this right to persons present at the scene of a police intervention as stakeholders or witnesses, as well as to persons who are victims of police misconduct.

The deputy of Quebec Solidaire André Fontecilla, who had pleaded for the maintenance of the old system during the study of the bill, is worried. He believes that the new framework of the law will create more problems than it will solve. “With the current law, we have just seriously restricted the possibility of the public to obtain justice in the event of an exception or a breach of the Code of Police Ethics,” he confides.

For Alexandre Popovic, this is a major setback for people like him who campaign against reprehensible police conduct. “With this law, I expect to lose the right to file complaints as I have done in other cases,” he laments, before adding: “If I come across a newspaper article for example and realize that something is wrong, I will no longer be able to do what I have That could be done in the case of David Kalubi.”

This opinion is shared by Lynda Khelil, mobilization manager at the League for Rights and Freedoms. “With the new law, if a situation similar (to that of David Kalubi) occurs, the police officers may not be the subject of an ethics complaint and may not be summoned to appear,” she notes.

While third party complainants can no longer file complaints on behalf of others, the new law still provides for a reporting mechanism allowing any person to refer to the Commissioner about “the conduct of a police officer in the exercise of his duties that is likely to constitute an act in violation of the Code of Ethics.”

The problem here, Popovic insists, is that third party complainants like him will no longer be able to benefit from the privileges granted to complainants, such as the right to follow the progress of an investigation, to be informed of the reasons for rejecting a complaint or even to request a review of a decision before another instance of the Police Ethics Committee. This accountability obligation incumbent on the Committee becomes optional with the reporting mechanism. “Therefore, less transparency”, observes Popovic

Contacted by La Converse, M^E Mélanie Hillinger, the Police Ethics Commissioner, argues that she no longer has the power to comment on Bill 14, which came into force on October 5, but to ensure its application. However, his spokesperson, Mr.^E Michelle-Audrey Avoine wanted to provide certain clarifications about the changes brought about by the new law. “The objective pursued by both the complaint and the report is the same, namely to allow anyone to be able to bring a situation to the attention of the Commissioner”, she specifies, before adding: “A complaint or report will be treated with the same rigor, according to the same analytical framework and in accordance with the same organizational values (...).” According to M.^E Michelle-Audrey Avoine, it is only in terms of follow-up to the reporter that the procedures may differ due to the fact that the reporter was not present at the scene of the event as well as the concern to preserve the confidentiality of sensitive information.

In addition, the third party complainant will be entitled to the same information as the direct complainant, except for information of a sensitive nature, which could affect the police officer concerned or the person involved in the event, or which would describe police intervention tactics. According to M^E Avoine, “this is not about taking away rights because the person changes status (reporting rather than complaining), but more about maintaining information that is not of public order.”

An argument that M relativizes^E Virginie Lemire, lawyer involved in police matters. According to the lawyer, the protection of privacy should not be an excuse to justify anything. “If, in fact, there are people who find that their privacy is being violated by this system, we must talk about it, we must demonstrate it and give examples”, she points out.

What about problem police interventions where there are no witnesses to file a complaint? What margin do members of a family who did not attend a police intervention involving one of their own have?

Lynda Khelil and Virginie Lemire say that their room for manoeuvre is limited. Unless they are direct witnesses to a police intervention, they must rely primarily on the reporting mechanism. And even in a case where there is a witness, it is not certain that he will file a police ethics complaint if he does not know this complaint mechanism. “There are also a lot of people who do not trust the police ethics system, recalls Lynda Khelil. In fact, when we talk about the ethics system, we often hear people say, “What is the point?” , “It's no use!” , “It's a complaint-rejecting machine!” ”

Virginie Lemire says nothing else, she who is often in charge of cases involving police officers. She observed a phenomenon of self-censorship among witnesses, especially if they are criminally accused following a police intervention. “People accused, for example of obstructing and other charges during a police intervention, do not want to file a complaint against police officers who can testify in their criminal trial until they are acquitted, explains the lawyer. And the ethics deadline is even shorter; it's one year, it's excessively short.”

Since the proportion of complaints from third party complainants that come before the Police Ethics Board is significant, as we will see below, the lawyer suggests looking into the reasons why direct witnesses do not file a complaint.

In these circumstances, the role of persons who have no direct link to police intervention is important. Lynda Khelil and Virginie Lemire insist that third-party complainants make it possible to highlight situations and events that would not otherwise have been brought to the attention of the Police Ethics Commissioner. They make it possible to file a complaint when the victim cannot or does not want to file a complaint. “By preventing a third party who was not present during a police intervention from filing a complaint, we prevent ourselves from having the complaint process for an event where there was a death, a serious injury or a violation of law,” concludes Lynda Khelil.

With regard to the families of persons involved in a problem police intervention, Mr.^E Avoine recalls that “it will be possible to provide specific procedures for dealing with a report that would be made by a member of the family of a person who was involved in a police intervention.” He added: “Indeed, the Commissioner is aware that this person's sensitivity to events is different from that of a person who is completely unfamiliar with them.”

Most of the people interviewed for this article are not convinced by the Commissioner's arguments. Circumspect, Virginie Lemire is waiting to see how things will unfold on the ground. According to the jurist, “police officers have extraordinary powers in society; we need a strong organization that is capable of ensuring reflection on police work and of ensuring the accountability of police officers who commit wrongs that go beyond limits.” The lawyer believes that with the new law, “we are going completely in another direction.”

For his part, André Fontecilla also believes that the new system “undermines the ethical system that was originally put in place to ensure that the public has greater confidence in the actions of members of the police forces”. The reporting mechanism, notes Virginie Lemire, does not offer sufficient guarantees of accountability and transparency due to the total discretion that surrounds the management of reports. “If they refuse to follow up on a complaint, they do not have to give reasons and there is no right of review.” She believes that “we are moving towards an opaque system.” She believes that “we are moving towards an opaque system.”

She advocates free choice, in other words a return to the old system, which allowed everyone to contact the Police Ethics Commissioner in order to file a complaint because of the problematic conduct of a police officer in the exercise of his duties. The reporting system should not come at the expense of third party witnesses. “You have to give people a choice,” she insists. Someone who is able to support a case, to assemble it properly, as is clearly the case with a number of complaints from third party complainants that have resulted in sanctions before the Committee, does not deserve to have that right taken away from him.”

Evocative situations and figures

The lawyer wants one as proof University of Montreal study which compares complaints submitted to the Commissioner by third party witnesses and those made by direct witnesses or persons directly involved in events involving police officers.

According to this study, complaints filed by third-party complainants represented 3.2% of all complaints received by the Ethics Commissioner from 2015 to 2020. Despite their ultra-minority nature, these complaints “are the ones that have come the longest in the ethical process”, write the authors of the study. Their proportion is significant, since they represented 22.6% of complaints that led to a decision by the Ethics Committee, and 27.9% of those that led to sanctions. Proof that “the old system worked,” observes Virginie Lemire, who still does not understand why it was abolished. “How can we maintain confidence in our institutions if we make this kind of decision, which is in no way supported by numbers? ” she wonders.

A powerful police lobby?

Alexandre Popovic remains convinced that the police force is emerging strengthened by the legislative change that has just been made. “This is an important victory for the police lobby, which has been fighting for several years to weaken a system of police ethics that is already weak, which is already underfunded,” he regrets.

An argument that I heard during my interviews with some members of civil society and that does not seem unfounded. Indeed, in a brief he filed in 2020 as part of the consultations on police reality in Quebec, the Commissioner of Police Ethics notes that the complaints of third party complainants have aroused “a great deal of controversy among police services and associations representing the interests of police officers.” He notes that many believe that this situation “discredits the system of police ethics”.

While recognizing the need to maintain the possibility for an uninvolved citizen to denounce a situation that he considers to be problematic, and while also recognizing the fact that “these complaints are useful to the Commissioner's mission since the Commissioner cannot act on his own initiative”, the Commissioner wanted to propose “a new model that would make it possible to respond to the concerns expressed” by the police forces.

According to Lynda Khelil, the new law is a response from the Minister of Public Security, François Bonnardel, to the requests made by the then Police Ethics Commissioner Marc-André Dowd and by the Advisory Committee on Police Reality, which also took up the recommendations of the Commissioner, as well as those of the police forces and associations that represent their interests.

M^E However, Avoine wanted to put things into perspective. She explains these changes by referring, among other things, to respecting the deadlines for dealing with complaints. “In recent years, certain economic factors have caused delays in the processing of complaints and thus increased the pressure on the Commissioner's team” she explains, before adding: “The discussions that were made as part of the consultations on police reality took these elements into account, and the resulting proposals were aimed at seeking the best balance between the achievement of the mission and the wise use of available resources.”

Mbombo Tshiteya, on the other hand, remains convinced that her experience proves that the old system worked well. With determination in her actions, with concern in her eyes, she says she is “disappointed” by the new law and believes that it “should not have been adopted”. She wonders: “Mr. Popovic went to the aid of people like us, who were bullied and had a loved one taken away from them, and I wonder how we can pass such a law. Are we trying to protect crooked police officers? ”

At the time of writing, François Bonnardel's office had still not responded to La Converse's requests.