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Ontario Human Rights Commission Written Deputation to the Toronto Police Services Board re: Policy on Race-Based Data Collection, Analysis and Public Reporting

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September 19, 2019

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Ontario Human Rights Commission

 

Written Deputation to the

 

Toronto Police Services Board re: Policy on Race-Based Data Collection, Analysis and Public Reporting

 

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide a written deputation to the Toronto Police Services Board (TPSB) on its Policy on Race-Based Data Collection, Analysis and Public Reporting (Policy),[1] which is being considered for approval at its September 19, 2019 meeting.

Approving this Policy will be a historic step forward. It will signal that the TPSB and Toronto Police Service (TPS) are genuinely committed to identifying, monitoring and addressing racial profiling and racial discrimination. Once fully implemented, the Policy will require race-based data collection across the full range of police-civilian interactions and will make the TPSB and TPS national leaders in race-based data collection.

This is a unique moment to build public trust in police and make our communities safer. For over four decades, Black communities and the groups that represent them, like the Black Action Defense Committee, African Canadian Legal Clinic, Black Lives Matter Toronto and Black Legal Action Centre, have expressed concerns about anti-Black racism in policing. These concerns were reflected in A Collective Impact, the OHRC’s interim report on its inquiry into racial profiling and racial discrimination of Black persons by the TPS.[2]  

Decades of reports and recommendations, including the 1989 Clare Lewis Report of the Race Relations and Policing Task Force[3] and A Collective Impact, have pointed to race-based data collection as the foundation for combating racial discrimination in law enforcement. The OHRC’s forthcoming Policy on eliminating racial profiling in law enforcement, which is being released on September 20, also recommends, among other things, that all police services collect race-based data on a wide range of police-civilian interactions and provides practical guidance to support police services in identifying and eliminating racial profiling.

Race-based data collection has made a difference elsewhere. For example, in New York City, stops decreased by 98% without any increase in crime after the New York Civil Liberties Union analyzed racial disparities in “stop and frisk” data and the Federal District Court ordered reforms and further data collection.[4] Police shootings also declined by approximately one-third in cities where there are agreements with the U.S. Department of Justice Civil Rights Division. These agreements often require police to collect and analyze race-based data.[5]

In response to A Collective Impact,[6] the TPSB passed a unanimous motion on December 18, 2018 stating its commitment to “using the collection of race-based data
to promote evidence-based policy-making and organizational change, including in monitoring systemic racial and other disparities to identify gaps, eliminate barriers and advance the fair treatment of every person.”[7] The TPSB referred its demographic data collection policy to the TPSB’s Anti-Racism Advisory Panel (ARAP) to be reviewed with recommendations for amendments. The TPSB further requested that the OHRC deliver a presentation to ARAP about best practices for collecting race-based data. The OHRC did so on February 14, 2019 and recommended that race-based data be collected on stops, searches, charges, arrests and use of force incidents. The OHRC later made a submission to the TPSB on its draft policy.[8]

The Policy signifies progress. It is a significant step forward in the TPSB’s efforts to identify and address systemic discrimination. There are many elements of the Policy that the OHRC supports and that are essential, including:

  • The guiding principles and purpose, which reflect the values underlying the Human Rights Code – preserving the dignity of individuals and communities, enhancing accountability, delivering non-discriminatory services to the public, and identifying and publicly reporting on disparities in service
  • Collecting race-based data based on officer perception
  • Collecting race-based data on stops, questioning and searches; Use of Force Reports; charges; arrests and discrete interactions between an individual and an officer that lead to a “decision that determines an outcome for the individual”
  • Regularly consulting and engaging with members of affected communities with lived experience of racial discrimination
  • Internal and independent analysis of data
  • Annual public reporting
  • The requirement to develop action plans to “remove systemic barriers and advance racial equity”
  • Key performance indicators that “assist in assessing whether racial disproportionalities or racial disparities in the data collected exist”
  • Assessing “community safety outcomes” for police use of force, including whether the force was “justified by law”
  • Independent recommendations to improve action plans
  • Experiential and scenario-based training to all members of the TPS on “the approach to policing required by Ontario’s Human Rights Code” and how to avoid bias, discrimination and racism.

Although charges and arrests are indicators of crime, data must be used in a way that is consistent with the Human Rights Code.[9] We agree with the TPSB that the “Policy and its implementation by the Service should not result in the stigmatization or stereotyping of any communities,” and “a race-based data collection, analysis and public reporting approach examines the effectiveness of police intervention with members of community, and not crimes rates of the communities with whom the police interact”[10].

 

Recommendations

The OHRC also makes the following recommendations to ensure that the Policy is consistent with best practices and achieves the TPSB’s vision of an approach that is “best in class.”[11]

The OHRC recommends that the TPSB:

  1. Require that race-based data be used for accountability:
    1. Require that the purpose of the Policy include identifying, monitoring and eliminating both individual and systemic discrimination
    2. Require that race-based data be disaggregated by officer
    3. Require that action plans include using race-based data to identify potential problematic officer conduct and taking remedial, performance management or other action as necessary.
  2. Remove “another race category” from the racial categories.
  3. Require race-based data collection when a civilian sustains a physical injury as a result of force being used, regardless of the extent of any such injury or medical treatment received.
  4. Mandate the analysis of relevant contextual information from police-civilian interactions that involve use of force, consistent with best practices.
  5. Require that all phases be implemented by January 1, 2021.

 

1) Accountability
  1. Identifying both individual and systemic discrimination

Any form of racial discrimination, whether individual or systemic, is illegal. In practice, individual and systemic discrimination are often linked. The OHRC recommends that the purpose of the Policy include identifying, monitoring and eliminating both individual and systemic discrimination. This would make the Policy consistent with its stated purpose of delivering non-discriminatory services and enhancing accountability. The Policy should not stand in the way of individual accountability for racial discrimination.

We accept that individual officers should not be identified in public reports, except as may be required by law. However, to fulfill the purpose of the Policy, the OHRC also recommends that race-based data be disaggregated by officer and the data be used in performance management.

Systemic racism and racial bias can partly be the product of individual officer bias and stereotyping. Racial profiling arising from an individual’s explicit bias can have a broader, systemic impact, such as when a person in authority directs another person or organization to single out Indigenous, Black and other racialized people for monitoring and different treatment.

The Anti-Racism Act and Ontario’s Anti-Racism Data Standards indicate that public sector organizations can use “personal information collected under the authority of the [Anti-Racism Act] to the extent that it is needed to eliminate systemic racism and advance racial equity in its services, programs or functions.”[12] In this case, individual officer information is needed to eliminate systemic racism and advance racial equity in service delivery.

  1. Performance management

The Policy prohibits race-based data from being used for performance management. However, best practices support using race-based data to further individual officer accountability, and the prohibition is inconsistent with the requirement that the Chief assess community safety outcomes in interactions. 

The OHRC recommends that action plans include using race-based data to identify potential problematic officer conduct and taking remedial, performance management or other action as necessary. Actions may include early intervention, officer coaching, individualized learning plans and if necessary, discipline. Biased activities will occur less often if there is an understanding that supervisors will review officer conduct and that there will be consequences if officers engage in racial profiling or racial discrimination.[13]

Twenty-two community and advocacy groups endorsed the OHRC’s recommendations in its submission to the provincial government on its review of policing. Recommendations included ensuring that officers are disciplined, up to and including dismissal, when their behavior is consistent with racial profiling. The OHRC’s submission stated that supervisors should review race-based data as part of the disciplinary process.[14]

The OHRC’s forthcoming Policy on eliminating racial profiling in law enforcement recommends that police services work with external experts to develop early warning systems. These systems would capture race-based data to alert supervisors to potential racial profiling and racial discrimination by both individuals and platoons/units/divisions.

Promoting Co-operative Strategies to Reduce Racial Profiling, the 2008 report commissioned by the U.S. Department of Justice’s Office of Community Oriented Policing Services, stated:[15]

For departments seeking to reduce racial profiling, ensuring the accountability of individual officers or groups of officers through an early intervention system (EIS) has been identified as a positive strategy for reducing or preventing racial profiling. Early intervention is a data-driven management process that allows managers to identify officers who have recurring problematic behavior and to intervene through counseling and additional training (Walker, 2000).

The idea behind EIS is that officers may not recognize problematic behavior unless it is identified and brought to their attention by supervisors. Once identified, officers have the ability to improve their performance and correct the conscious or unconscious behavior-causing problems, such as racially biased traffic enforcement. The data collected by these systems also offer an overall picture of an officer’s activity that can provide context when addressing allegations of biased policing and can indicate that racial disparities are associated with factors other than an officer’s bias, for example, deployment allocations.

The Policy’s prohibition on using race-based data in performance management is inconsistent with the Policy’s requirement that the Chief assess community safety outcomes in interactions.[16] Assessing “community safety outcomes” for police use of force includes examining whether racial profiling is taking place. Without being able to rely on race-based data in performance management, the Chief is denied an important tool to ensure community safety outcomes. Put another way, if the police know from the race-based data that a particular officer is engaging in conduct consistent with racial profiling, they cannot use this data to performance manage
the officer, potentially allowing the officer to escape scrutiny and putting community safety at risk.

  1. Disaggregated data by officer

The OHRC recommends that the data be disaggregated by officer.

Accountability for human rights or Charter violations before courts, tribunals and oversight agencies will be frustrated if the data is not disaggregated by officer.
For example, evidence about whether a particular officer involved in an incident disproportionately stops and searches Indigenous, Black or other racialized people would not be available. 

 

2) Racial categories

The OHRC is pleased that the Policy requires race-based data collection based on officer perception. Perceptions of race are the most useful for identifying, monitoring and addressing racial profiling and racial discrimination.[17]

The Policy lists racial categories and states that they are the categories listed in Ontario’s Anti-Racism Data Standards. The OHRC recommends that the category “another race category” be removed.

Ontario’s Anti-Racism Data Standards draw a distinction between racial categories for “participant observer information of race” (i.e. perceived race) and self-identification. “Another race category” is not available as a response for “participant observer information” because of “lessons learned from other jurisdictions and research that shows including that option compromises the validity of responses.”[18]

The OHRC also put forward racial categories in its submission to the Independent Street Checks Review, which were endorsed by the Ontario Association of Chiefs of Police and the Ontario Association of Police Services Boards and did not include “another race category” or “other.”[19]

 

3) Scope and application

The OHRC is pleased with the commitment to a broad scope of race-based data collection described in the Policy. It means that the potential for racial bias at various stages of police interactions (stops, questioning, searches. charges, arrests, use of force and discrete interactions between an individual and an officer that lead to a “decision that determines an outcome for the individual”) will be assessed and the TPSB and TPS can better identify “institutional or structural practices … that can result in racial disparities and prejudicial treatment.”[20]

  1. Use of force incidents

The OHRC recommends that the Policy explicitly require race-based data collection when a civilian “sustains a [physical] injury as a result of force being used, regardless of the extent of any such injury or medical treatment received.” An officer is already required to submit an Injury/Illness Report (TPS 105) to the Officer in Charge in these circumstances.[21]

The Policy directs the TPS to collect race-based data “as it relates to [provincial] Use of Force Reports.”[22] The Province does not require that Use of Force Reports be filled out for use of force incidents that result in physical injuries that do not require medical attention.[23] Although these lower-level use of force incidents should fall in the category of discrete interactions between an individual and an officer that lead to a “decision that determines an outcome for the individual,”[24] the OHRC recommends that the Policy explicitly require that race-based data be collected on these incidents. To the extent that the TPSB takes the position that these lower-level use of force incidents would already be captured by the Policy, there is no reason for the TPSB not to make it explicit in an effort build public trust.

There may be racial disparities in these lower-level use of force incidents, which can still have significant physical and emotional impacts on the people subjected to them. The case law and lived experiences set out in A Collective Impact identified use of force incidents involving Black people that may not have required medical attention. Furthermore, the Center for Policing Equity found racial disparities in lower-level use of force incidents across the 12 U.S. police departments analyzed in its report The Science of Justice: Race, Arrests and Police Use of Force.[25]

Many Indigenous, Black and other racialized communities also support human rights-based data collection on all use of force incidents. As noted earlier, 22 community and advocacy groups endorsed the OHRC’s recommendations in its submission to the provincial government on its review of policing, which included the recommendation that police services be required to establish permanent data collection and retention systems to record human rights-based data on all use of force incidents.[26]

  1. Contextual information about use of force incidents

The OHRC is pleased that the Policy requires independent analysis of data and independent recommendations to improve action plans. However, the policy needs to clearly identify the relevant contextual information that should be analyzed by the independent organization or academic related to police-civilian interactions that involve use of force.

The Policy requires the Chief of Police to enter a partnership with an independent organization or academic that will, among other things, conduct their own analysis of race-based data and report to the TPSB with its findings and recommendations to improve action plans. The Chief of Police is required to provide the independent organization or academic with any relevant contextual information they determine is necessary, such as “demographic and census information (race, Indigenous ancestry, age, and gender of the individual), deployment information, detailed information about where the interaction occurred, etc. that assists with an analysis of the data.”[27]

The OHRC recommends that the Policy specify contextual information to be analyzed from police-civilian interactions that involve use of force, to help the TPSB and TPS identify whether there is racial discrimination and intersectional discrimination. As the Center for Policing Equity noted, “a thorough understanding of police use of force is not possible without a thorough account of the interaction that produced it.”[28] Also, there is a socially significant intersection between race and mental health that may affect officer decisions about use of force.[29]

Best practices support analyzing a variety of information, including the reason for initial contact between the subject and the officer, the subject’s actions that led to the use of force, the level of force used, the subject’s gender, whether the subject had or was perceived to have a mental health disability, charges and their disposition.[30] The Policy should specify that the analysis should consider the following information. This will inform whether the information should be collected or compiled from existing sources. All of the following contextual information should apply to the first phase of the Policy (i.e. Use of Force Reports) and use of force incidents that result in physical injuries:

  1. The subject’s race, Indigenous ancestry, age and gender
  2. Whether the subject had or was perceived to have a mental health disability, was experiencing a mental health crisis or was intoxicated on drugs or alcohol at the time of incident
  3. All type(s) and levels of force used and their sequence
  4. Name, gender, rank, badge number, years of experience, shift, assignment, platoon, unit and division of the officer(s) who used force
  5. Location where the use of force occurred, including postal code, patrol zone and X-Y coordinates
  6. Location where the subject lived, including postal code and patrol zone
  7. Any injuries sustained by the officer and/or the subject and medical services received
  8. A detailed description of the circumstances and the subject’s actions that led
    to the use of force including:
    1. The reason for the initial stop or enforcement action
    2. Whether the incident occurred during an officer-initiated contact or a call for service
    3. Whether the subject was in possession of a weapon, the type of weapon and when the weapon emerged (i.e. before use of force or after arrest)
    4. Whether the subject was handcuffed or otherwise restrained during the use
      of force
  9. Whether the subject was charged with an offence, and, if so, which offence(s) and their disposition
  10. Whether, when and how verbal or other de-escalation techniques were used
  11. For firearm-related incidents, the number of shots fired by each involved officer, the accuracy of the shots
  12. The length of time between the use of force and the completion of each step of the force investigation and review.

Any additional contextual information to be analyzed may be determined by the independent organization.

4) Timelines for implementation

At present, data collection on the first phase (Use of Force Reports) is scheduled to begin by January 1, 2020, which is when the regulation of the Anti-Racism Act, 2017 requires officers across Ontario to record “the race of individuals in respect of whom a use of force report is prepared.”[31] The Chief will report to the TPSB by September 2020 “concerning a timeline for the operational implementation of the remaining phases” of the Policy[32].

The OHRC recommends that all phases be implemented by January 1, 2021, one year after the first phase is implemented. The TPSB and TPS are well-positioned to learn from the experience of the Ottawa Police Service and Ottawa Police Services Board in their Traffic Stop Data Collection Project, which included quality assurance measures, software upgrades, officer and supervisor training, community engagement, internal and external communications, data monitoring and extraction, and data storage and security.[33]

 

Conclusion

We recognize that policing is vital to public safety, and that it is challenging and sometimes traumatic. The Policy signals that the TPSB and TPS are genuinely committed to building trust with diverse communities to make us all safer. 

We are pleased that the TPSB and TPS are taking the recommendations from A Collective Impact and the concerns about anti-Black racism in policing seriously.

We call on the TPSB to implement our recommendations and approve the Policy. Our recommendations will help the TPSB realize its vision of an approach that is “best in class,” promote public confidence and co-operation, and make our communities safer.

 

 

[1] Toronto Police Services Board, Race-based Data Collection, Analysis and Public Reporting (2019), Appendix A to Public Agenda Item #2 of the Toronto Police Services Board’s September 19, 2019 meeting, online: www.tpsb.ca/images/agendas/PUBLIC_AGENDA_Sep19.pdf [Policy].

[2] Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial
profiling and racial discrimination of Black persons by the Toronto Police Service
(2018), online: www.ohrc.on.ca/en/public-interest-inquiry-racial-profiling-and-discrimination-toronto-police-service/collective-impact-interim-report-inquiry-racial-profiling-and-racial-discrimination-black.

[3] Clare Lewis, The Report of the Race Relations and Policing Task Force (1989) at 50, 51, 65, 83,
145, and 168, online: https://archive.org/details/mag_00066901

[4] New York Civil Liberties Union, Stop-and-Frisk in the de Blasio Era (2019) at 1-4, online: www.nyclu.org/sites/default/files/field_documents/20190314_nyclu_stopfrisk_singles.pdf

[5] U.S. Commission on Civil Rights, Police use of force: an examination of modern police practices (2018) at 88-89, online: www.usccr.gov/pubs/2018/11-15-Police-Force.pdf; U.S. Department of Justice Civil Rights, The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994-Present (2017) at
26-32, online: www.justice.gov/crt/file/922421/download

[9] Ontario Human Rights Commission, Count me In!: Collective Human Rights-Based Data (2009) at 17, online: http://www.ohrc.on.ca/en/count-me-collecting-human-rights-based-data

[10] Policy, supra note 1 at 14.

[11] Policy, supra note 1 at 13.

[12] O Reg 267/18; Ontario, Data Standards for the Identification and Monitoring of Systemic Racism (2019), Standard 26 at 42-43, online: Ontario www.ontario.ca/document/data-standards-identification-and-monitoring-systemic-racism [Ontario’s Anti-Racism Data Standards]; Anti-Racism Act, 2017, SO 2017, c 15, ss. 7(2), (6), (9).

[13] Nassiah v Peel (Regional Municipality) Services Board, 2007 HRTO 14 (CanLII) at para 207.

[14] Ontario Human Rights Commission, Submission of the OHRC to the Ministry of Community Safety
and Correctional Services on the Strategy for a Safer Ontario
(2016), online: Ontario Human Rights Commissionwww.ohrc.on.ca/en/strategy-safer-ontario-%E2%80%93-ohrc-submission-mcscs

[Strategy for a Safer Ontario Submission].

[15] Institute on Race and Justice, Northeastern University, Promoting Cooperative Strategies to Reduce Racial Profiling, COPS Evaluation Brief No. 1. (Washington, D.C.: Office of Community Oriented Policing Services, U.S. Department of Justice) 2008 at 7, online: https://ric-zai-inc.com/Publications/cops-p146-pub.pdf.

[16] Policy, supra note 1 at 16.

[17] Ontario Human Rights Commission, OHRC Submission to the Independent Street Checks Review (2018), online: Ontario Human Rights Commission www.ohrc.on.ca/en/ohrc-submission-independent-street-checks-review; Rob Tillyer, Robin Angel & Jennifer Cherkauskas, “Best practices in vehicle stop data collection and analysis” (2009) 33:1 PIJPSM 69 at 76.

[18] Ontario’s Anti-Racism Data Standards, supra note 12, Standard 40 at 63.

[19] OHRC Submission to the Independent Street Checks Review, supra note 17.

[20] Policy, supra note 1 at 12.

[21] Toronto Police Service, Procedure 15-02: Injury/Illness Reporting (December 19, 2016).

[22] Policy, supra note 1 at 13 and 25.

[23] RRO 1990, Reg 926, s 14.5(1).

[24] Policy, supra note 1 at 13.

[25] Center for Policing Equity, The Science of Justice: Race, Arrests and Police Use of Force (2016) at
19-21, online: Center for Policing Equity https://policingequity.org/images/pdfs-doc/CPE_SoJ_Race-Arrests-UoF_2016-07-08-1130.pdf [Center for Policing Equity]

[26] Strategy for a Safer Ontario Submission, supra note 14.

[27] Policy, supra note 1 at 17.

[28] Center for Policing Equity, supra note 20 at 7.

[29] Strategy for a Safer Ontario Submission, supra note 21.

[30] Scot Wortley, “Police use of Force in Ontario: An Examination of Data from the Special Investigations Unit, Final Report” (2006), Research project conducted on behalf of the African Canadian Legal Clinic for submission to the Ipperwash Inquiry at 79-80 and Appendix B; www.attorneygeneral.jus.gov.on.ca/inquiries/
ipperwash/policy_part/projects/pdf/AfricanCanadianClinicIpperwashProject_SIUStudybyScotWortley.pdf
; Investigation of the Ferguson Police Department (March 4, 2015) at 92, online: U.S. Department of Justice Civil Rights Division www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf [Investigation of the FPD]; Consent Decree between the United States (i.e. the DOJ) and the City of Ferguson (April, 2016) at 102, 103, 108–115 [FPD Consent Decree]; Consent Decree between the United States (i.e. the DOJ), the Mayor and City Council of Baltimore and the Police Department of Baltimore City (January, 2017) at 73‒74 [BPD Consent Decree]; U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, National Use-of-Force Data Collection Flyer (2018), online: Federal Bureau of Investigation https://ucr.fbi.gov/national-use-of-force-data-collection-flyer.

[31] O Reg 267/18, s 2.

[32] Policy, supra note 1 at 19