An unlikely police watchdog takes office, envisioning an 'inquisitorial system'

Felix Cacchione, director of the Serious Incident Response Team, the province's independent police watchdog agency, is seen in Halifax on Wednesday, April 18, 2018. (THE CANADIAN PRESS/Andrew Vaughan)

HALIFAX -- After more than a decade of studying police oversight agencies, Kent Roach sees Felix Cacchione's appointment as the director of Nova Scotia's law enforcement watchdog as a potential game changer.

Most Canadian jurisdictions choose former prosecutors to watch the police, said Roach, a prominent University of Toronto law professor.

But Cacchione, the grandson of Italian immigrants to Montreal, is a veteran superior court judge and criminal lawyer -- he retired from the Nova Scotia Supreme Court just weeks before being named director of the province's Serious Incident Response Team (SIRT).

"The appointment of a former supreme court justice and former legal aid lawyer is exceptional," said Roach in a recent interview.

The leaders of Canada's special investigatory units have tended to focus on their main mandate: deciding if officers have broken the law and recommending prosecutions in serious incidents involving the police, ranging from shootings to sexual assault.

But Roach says there's also a role for directors to refer cases that may not meet that bar to police complaints commissions, and to describe changes in policing that might avoid future incidents.

Roach -- who has researched the special units in Ontario -- says Cacchione could bring a "gravitas" that lends weight to anything he says on the underlying problems in policing, along with his recommendations on criminal prosecutions.

But Cacchione, 68, displays a judge's prudence when asked if he will wade into wider policy issues when he handles investigations or in his annual reports.

"Depending on the situation, it may not be off limits," he said during an interview Wednesday.

After growing up in Montreal's east end, Cacchione studied at Dalhousie University's law school in Halifax. He says he went into law and legal aid in part because he recalled his own parents lacking the money to afford legal help in a civil case.

Cacchione has had over 31 years of experience reviewing police investigations -- including some that impressed him and others that left him shaking his head over their inadequacies.

The director says he'll now turn his attention to becoming the overseer of the team's inquiries, adopting a European-style "inquisitorial system" as he works with the office's investigators and poses questions to them about each case.

He said any preconceptions he had that his staff or seconded officers might be biased towards police officers have been rapidly blown apart in his first days on the job.

"I've found these officers ... don't like anything that would smell of a dirty cop," he said.

Cacchione said at this point, he's focused on the basics rather than vision statements.

He's already occupied with a high-profile case alleging a Halifax police officer assaulted a homeless man outside a shelter on Feb. 25. Ten days ago, two more cases came in, one from St. John's, N.L., and a second in Nova Scotia, alleging sexual assault by an RCMP officer, swiftly exhausting the resources of his four-person unit.

"You're busy with all of this, rather than thinking about where we're going to be five years from now," he said.

Amidst the sudden deluge of work, Cacchione is also dampening any expectations of a revamped or expanded organization.

"My hope is to continue doing the kind of work that my predecessor did, which was to provide independent, thorough investigations of complaints against police agencies or officers," he said.

Meanwhile, John Sewell, a former mayor of Toronto and author of a book that examines policing oversight, is among those who argue agencies like SIRT need the budget and clear legislated mandate to also assess the "reasonableness" of police actions, and to make recommendations for change when that's not the case.

"The Serious Incident Response Team (in Nova Scotia) looks like it will only deal with physical injuries. ... It probably will be no more effective than the Special Investigations Unit in Ontario -- that is, not very effective at all as a review mechanism," Sewell wrote in an email.

While Nova Scotia's Police Act allows Cacchione to refer matters to police complaints commissions, it doesn't state -- as Ontario's yet-to-be proclaimed new legislation explicitly does -- that his referral must be made public.

Ian Scott, the former director of the Ontario Special Investigations Unit, said in an interview that during his tenure from 2008 to 2011 he handled incidents that didn't meet the bar of a criminal prosecution but which called for a disciplinary review that was open to the public.

He said SIRT directors may not always have the material they need to comment on policing policy because the officer involved isn't compelled to turn over their notes or testify -- something which they might be compelled to do in a non-criminal proceeding.

"It's a bit of a tricky situation sometimes," he said.

Cacchione makes the case that problems in police conduct can also be dealt with in fairly subtle ways.

"We often will have situations where it doesn't meet the bar in terms of laying of a criminal charge but the material is sent to the police department for their internal investigation and disciplinary matters," he said.

"Simply referring those things to their standards committee is saying something."

Archie Kaiser, a law professor at Dalhousie and long-time friend of Cacchione's, said in an email "having someone with judicial experience should boost public confidence."

"The combination of the exactitude and restraint of a former judge and the investigative experience of the staff should be very auspicious in terms of ensuring high standards of policing and respect for the law," he wrote.

Prior to Cacchione taking on the job, there had been discussions among the Atlantic provinces around the creation of a single regional police watchdog agency under the leadership of the Halifax office.

Cacchione says he's open to proposals from other provinces, but raises some cautions.

"I understand how often the best intentions of government don't get carried through," he said. "We've been talking about it since 2012. Here we are six years later and we haven't really moved forward."

Newfoundland and Labrador recently set aside $250,000 in its current budget, and $500,000 annually in following years, for the creation of an independent police oversight agency. However, in an interview, Justice Minister Andrew Parsons said no decisions have been taken yet on whether his province will create its own team or link to the Nova Scotia agency.

A spokesman for New Brunswick's Justice Department sent an email saying his province remains interested in a unified agency, but refers to the topic as being in "preliminary discussions."