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“I don’t recall”: Addressing the “code of silence” in law enforcement investigations

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Law enforcement agencies, such as police services, correctional institutions and the RCMP, are distinguishable workplaces with a paramilitary culture and an emphasis on solidarity with one another. These attributes can be important in the execution of duties, given the inherent dangers involved in working at such organizations.

However, problems manifest when the notion of solidarity evolves into an unwillingness to report the misconduct of one’s colleagues. This unwillingness, often referred to as the “code of silence”, the “blue wall” or the “thin blue line”, is often rooted in a fear of backlash in the workplace.

The Consequences of Breaking the Code of Silence

In 2013, the Ontario Ombudsman published “The Code”[1], a report that confirmed the prevalence of the code of silence in Ontario’s correctional institutions and noted that:

“As in policing, in the world of correctional services, where personal safety and security often depends on the support of other officers, the pressure to keep silent and even lie to protect colleagues can be prevailing and pernicious.”

The Ombudsman noted that individuals who broke the code of silence were often labelled “rats”, ostracized by their colleagues and subjected to harassment and retaliation, both on and off duty. The consequences experienced by such individuals reportedly included a failure to receive backup from fellow correctional staff, damage to their vehicles and threatening phone calls at their residences.

The Ombudsman’s report further examined the effect of the code of silence in excessive use of force investigations. In some instances, correctional staff, including managers, were found to have colluded, destroyed and falsified records to cover up the excessive use of force by staff against inmates.

Similarly, in 2017, the Civilian Review and Complaints Commission for the RCMP published a report examining workplace harassment in the RCMP.[2]  Examples were provided in which RCMP members who reported harassment were reprised against by being left alone at crime scenes, having requests for backup go unanswered, and in one case, being driven to a remote location by an officer-in-charge who advised them in a threatening manner to “behave”. Many RCMP members who participated in the study advised that the fear of reprisal prevented them from reporting harassment.

While the RCMP study did not specifically reference the code of silence, the implication remains the same: RCMP members who report misconduct such as harassment often experience reprisal.

The Impact of the Code of Silence on Workplace Investigations

The above-noted reports illustrate the motivation for law enforcement personnel to adhere to the code of silence, rather than disclose the wrongdoing of their colleagues. As a result, workplace investigators may encounter unique challenges in gathering evidence that’s accurate, reliable and complete.

When conducting investigations in law enforcement settings, the following factors may serve as indicia of the code of silence:

1. “I don’t recall”: Gaps in memory

Workplace investigators may encounter witnesses who advise that they do not recall the incident or behaviour in question. Consider the following scenarios:

  • A police officer acknowledges being at the scene of an event, recalls the details of everything leading up to the incident in question and is otherwise clear and candid in their evidence. The only gap in their memory is the incident itself; here, the officer fails to recall anything of relevance to the investigation.
  • An officer makes a blanket statement that they simply don’t recall anything from the day in question, and makes no effort to jog their memory.

In some cases, these answers may be entirely honest and truthful; depending on factors such as the passage of time, it may well be that an individual truly does not recall anything.

However, based on the totality of the circumstances, investigators ought to carefully consider whether it’s likely that someone is genuinely unable to recall critical details. If, in the investigator’s view, it does not seem to be a probable explanation, it may indicate that the code of silence is impacting the reliability of the evidence.

2. “He fell”: Contradictory evidence

Alternatively, investigators may encounter situations where witnesses state that they do recall the incident in question – however, their recollection is fundamentally at odds with the allegations in the complaint.

Conflicting evidence is a reality in almost every workplace investigation, regardless of the nature of the organization. However, in a law enforcement setting, a strong divergence may indicate that the code of silence is impacting the accuracy of the evidence.

Investigators should also take note when employee witnesses provide evidence that sounds overly similar to one another’s, appears scripted or is premised on a number of strange coincidences.

Where possible, investigators may wish to speak with impartial witnesses whose evidence is less likely to be influenced by the code of silence (i.e., civilian witnesses, individuals working at arm’s length from the respondent, etc).

In reviewing conflicting accounts, investigators may also consider interviewees’ possible motivations or biases, and assign weight to their evidence accordingly.

3. “It went missing”: Gaps in documentary evidence

Law enforcement personnel are often bound by strict record-keeping obligations. Depending on organizational requirements, personnel may be required to activate audio and video recordings, file occurrence reports and make detailed notebook entries that include on- and off-duty times, the weather, the direction they drove in, and the details of an interaction. Notes and records are also often expected to be made contemporaneously, or as soon as possible following an incident.

With respect to police officer notes in particular, courts have confirmed that “there is a duty upon officers to take complete, accurate and comprehensive notes… Evidence not contained in officers’ notes may be suspect or given less weight on the basis of credibility”.[3] It has further been held that officers cannot “thwart the requirements to disclose evidence by making less accurate or less comprehensive notes”.[4]

Upon reviewing the totality of the documentary evidence, investigators should consider whether there are any unexplained gaps; for example, notes that lack detail, missing video surveillance or an overly vague occurrence report. It should be noted that it is entirely possible to have an isolated oversight due to simple human error. However, an accumulation of incomplete, vague or missing evidence regarding an incident may be an indicator of the code of silence.

Investigators may also wish to review organizational policies regarding note-taking, reporting requirements and the use and retention of audio/video recordings. Such policies may assist in determining whether it is reasonable in the circumstances for some evidence to be missing or incomplete.

Discounting Evidence Based on the Code of Silence

In the following case, the grievors were terminated as correctional officers for applying excessive use of force against an inmate and failing to file the appropriate reports thereafter.  The grievors grieved their terminations. The Vice-Chair’s decision, excerpted below, analyzed the existence of the code of silence to ultimately discount their evidence:

…it is undisputed that OM Singh struck the inmate in the 2B cell…Yet, amazingly, none of the grievors saw this. Beaulieu acknowledged on cross-examination that it was possible, but he saw nothing. Nor did Meadows or Gillis. Again, they did not see anything or hear anything. In the background is the code of silence – a code which compels Correctional Officers to remain silent about the actions of colleagues, or face serious repercussions in the workplace.

The operation of the code of silence explains a great deal in this case. It explains why the

grievors maintained that they did nothing, saw nothing and heard nothing. It explains why Gillis could not remember even one other officer who was in 5C, or the elevator, or in 2B, except for OM Singh and the inmate. The only other explanation is that he has the worst imaginable powers of observation for an experienced Correctional Officer. That seems unlikely given his position and extra training with ICIT [Institutional Crisis Intervention Team]. Undoubtedly, Gillis was trained to focus on the inmate, but he was also trained to observe what was happening around him.

The Code explains why no one wrote an Occurrence Report that mentioned any names, except OM Singh. It explains why some of the individuals involved shared their Occurrence Reports before they were submitted to OM Singh.[5]

Making Determinations on a Balance of Probabilities

In criminal matters, the standard of proof is “beyond a reasonable doubt”, an understandably high threshold given the stakes involved in criminal proceedings.

However, the threshold for workplace investigations is much lower and relies on “a balance of probabilities”. Accordingly, investigators simply need to be persuaded that it is more likely than not that an incident occurred (sometimes framed as “50% plus a feather”). In making this assessment, it is incumbent on investigators to weigh the reliability of the evidence, paying particular attention to any unexplained gaps, inaccuracies or improbabilities.

Concluding Thoughts

The code of silence ostensibly operates to strengthen solidarity amongst law enforcement personnel. However, as demonstrated by the case above, it can also be used to diminish credibility and ultimately, discount unreliable evidence in a workplace investigation. Investigators working in settings with a prevalent code of silence should be mindful of its impact on the evidence and the ultimate analysis of the case.

[1] https://www.ombudsman.on.ca/resources/reports-and-case-summaries/reports-on-investigations/2013/the-code.

[2] https://www.crcc-ccetp.gc.ca/en/report-workplace-harassment-rcmp.

[3] R v Bailey, 2005 ABPC 61 at para 42.

[4] Bailey, at para 31.

[5] OPSEU v Ontario (Community Safety and Correctional Services), 2008 CanLII 26249 (ON GSB).