OHRC Submission to the Independent Review of Police Oversight Bodies

Ontario Human Rights Commission
Submission to the
Independent Review of Police Oversight Bodies

November 15, 2016

Executive summary

For nearly two decades, the Ontario Human Rights Commission (OHRC) has raised concerns about systemic discrimination that are part of the culture of policing in our province. There have been far too many instances of racial profiling, discriminatory use of force on people with mental health disabilities and/or addictions, and racism and sexism in investigations of missing and murdered Indigenous women and girls in Ontario to ignore. These incidents and related concerns have sparked multiple coroner’s inquests, recommendations, reviews and reports, stretching back for decades. Yet they all have failed to eliminate systemic discrimination in policing.

The Ministry of the Attorney General’s Independent Review of Police Oversight Bodies (Independent Review) represents a critical moment to enhance monitoring and accountability for systemic discrimination in policing. The Government must act swiftly and immediately to address systemic discrimination in policing, and take bold steps to promote a culture of human rights accountability and rebuild trust in law enforcement.

There is a long history of mistrust of police by many marginalized communities, including and especially among First Nations, Métis and Inuit Peoples (Indigenous peoples) and African Canadians. This mistrust is rooted in systemic discrimination in policing and the chronic over-representation of Indigenous peoples and African Canadians in all aspects of the criminal justice system. Both persist to this day. Recent tragic events, like the deaths of Reggie Bushie, Abdirahman Abdi, Andrew Loku and Jermaine Carby, as well as discriminatory stop and question practices (carding/street checks) have eroded community trust, which is essential to effective policing, and ultimately to public safety. Frayed community relationships reduce the likelihood of civilians reporting crime, cooperating with police investigations, and providing evidence in court.

Across North America, including in Ontario, marginalized peoples’ calls for change have grown louder, with frequent demonstrations and demands for a complete overhaul of the current system. The lack of transparent, independent and proactive monitoring and investigation of police services, coupled with an effective mechanism to hold police accountable for systemic discrimination, have been at the very heart of movements like Black Lives Matter and advocacy around justice for missing and murdered Indigenous women and girls. Accountability also underlies the Truth and Reconciliation Commission of Canada’s calls to action to all levels of government, to eliminate the over-representation of Indigenous peoples in custody over the next decade.

Last month, the United Nations Working Group of Experts on People of African Descent found “clear evidence that racial profiling is endemic in the strategies and practices used by law enforcement.” It urged the Government to “develop and implement an African Canadian Justice Strategy to address the anti-Black racism and discrimination within the criminal justice system.”^[1]

As part of our own strategic planning process, the OHRC recently consulted with nearly 300 individuals representing more than 80 community and advocacy groups across Ontario, independent officers of the legislature and other stakeholders. Throughout this process, we consistently heard concerns about systemic discrimination in policing, especially related to African Canadians, Muslim and Arab Canadians, other racialized communities, Indigenous peoples, and people with mental health disabilities.

While the OHRC will prioritize work related to systemic discrimination in the criminal justice system over the next five years, we believe that community trust cannot be restored without: (1) implementing the OHRC’s widely-endorsed recommendations to the Government on its Strategy for a Safer Ontario review, and (2) meaningful independent and proactive monitoring of and accountability for systemic discrimination in policing.

In short, we are at a critical juncture and the outcome of the Independent Review will be a key moment to place human rights at the center of police oversight. We would be pleased to work with Justice Tulloch and/or the Government to move forward on our recommendations in this important sector.

Towards effective human rights monitoring and accountability in Ontario

While the Independent Review is focused on the Office of the Independent Police Review Director (OIPRD), Special Investigations Unit (SIU) and Ontario Civilian Police Commission (OCPC), these are not the only bodies that affect monitoring and accountability for systemic discrimination in policing. The Office of the Chief Coroner for Ontario (OCCO), Ombudsman of Ontario (Ombudsman), police services boards, police complaints system and the human rights system also form part of the relevant framework. The entire accountability framework is important context for the Independent Review.

The Government has created various bodies to provide police oversight and “civilian” involvement in policing in the province. However, to date, the existing oversight bodies have not been sufficiently responsive to community calls for transparent, independent and proactive monitoring and accountability for systemic discrimination in policing. There is a fundamental gap: the OIPRD, SIU, OCPC, OCCO and Ombudsman do not have sufficient expertise to identify and analyze systemic discrimination, nor do they have the mandate to engage in proactive monitoring and enforcement regarding systemic discrimination. They do not have the hallmarks of effective oversight for systemic discrimination.

Adding the prevention of systemic discrimination to the mandates of the OIPRD, SIU, OCPC, OCCO or Ombudsman or merging some or all of these bodies are not solutions. They are not responsive to community calls for change. Furthermore, given their existing mandates, it is unlikely that these institutions would appropriately prioritize addressing systemic discrimination, whether merged or not. The OIPRD, SIU, OCPC and police services have also persistently failed to collect human rights-based identity data, despite this data being central to monitoring and accountability for systemic discrimination.

Proactive, independent monitoring and enforcement regarding systemic discrimination in policing requires the Government to establish through legislation an institution with the following hallmarks:

1. A clearly defined and specific mandate to prevent systemic discrimination in policing
2. Expertise in discrimination analysis under the Human Rights Code and Charter of Rights and Freedoms
3. An understanding of the complex relationships between police and people with mental health disabilities, African Canadians and Indigenous peoples (including an understanding of the ongoing impact of colonialism)
4. Independence from government, police and other oversight bodies, both in terms of institutional independence and possible apprehension of bias
5. Accountability, transparency and accessibility to the public, which includes proactively engaging with Code-protected communities to identify issues of concern and possible solutions, and public reporting
6. The ability to access and compel production of documents and records, and conduct investigations to uncover patterns of behaviour that may be consistent with systemic discrimination
7. Enforcement powers before a court or specialized tribunal that can order systemic remedies
8. Sufficient capacity and resources to fulfil its mandate on an ongoing basis.

It is worth noting that this institution cannot be effective and restore public trust unless all police oversight agencies and police services are directed to collect and publicly release human rights-based identity data; and the institution is independent, sufficiently funded to carry out its mandate, accountable, transparent and accessible.

Engagement with First Nations is essential in determining whether and the extent to which the institution has jurisdiction over First Nations police services in Ontario.

Given the gravity of anti-Black and anti-Indigenous systemic racism in policing, discriminatory use of force on people with mental health disabilities and/or addictions, and the resulting lack of trust in police, the time for action on the OHRC’s recommendations is now. Voices for change will only get louder without meaningful oversight for systemic discrimination in policing. The Government must establish an institution specifically tasked with proactive independent monitoring and enforcement regarding systemic discrimination in policing. We would be pleased to work co-operatively with such an institution to address this discrimination.

Recommendations to the Government of Ontario:

1. Establish, through legislation, an independent institution to undertake proactive, independent and transparent monitoring and enforcement regarding systemic discrimination in policing. The institution should have, among other things:

1. A clearly defined and specific mandate to prevent systemic discrimination in policing
2. Expertise in discrimination analysis under the Human Rights Code and Charter of Rights and Freedoms
3. Understanding of the complex relationships between police and people with mental health disabilities, African Canadians, and Indigenous peoples (including an understanding of the ongoing impact of colonialism)
4. Independence from government, police and other oversight bodies, both in terms of institutional independence and possible apprehension of bias
5. Accountability, transparency and accessibility to the public, which includes proactively engaging with Code-protected communities to identify issues of concern and possible solutions, and public reporting
6. The ability to access and compel production of documents and records, and conduct investigations to uncover patterns of behaviour that may be consistent with systemic discrimination
7. Enforcement powers before a court or specialized tribunal that can order systemic remedies
8. Sufficient capacity and resources to fulfil its mandate on an ongoing basis.
    

2. Direct police services to establish permanent data collection and retention systems to record human rights identity-based data on, but not limited to, all stops of civilians, use of force incidents, and interactions where officers ask about immigration status or conduct immigration status checks. The data should be standardized, disaggregated, tabulated, publicly reported by each police service, and provided to the institution. The data should include age, gender, perceived race, and officer perception of whether the individual has a disability, including a mental health disability.
    

3. Require other institutions that exercise police oversight functions to:

1. Notify complainants or next of kin of their right to file an application with the Human Rights Tribunal of Ontario (HRTO) for alleged discrimination under the Code and provide the contact information of the HRTO and Human Rights Legal Support Centre (HRLSC).

2. Notify the institution tasked with oversight for systemic discrimination in policing about complaints received and investigations conducted that involve allegations of discrimination, including applications to the HRTO alleging discrimination in policing services.
3. Publicly release all reports investigating serious injury or death of civilians in incidents involving the police. The reports should have human rights-based information about the victim, including the victim’s race, gender, age, and whether the victim had or was perceived to have a mental health disability, subject to redactions to comply with privacy legislation.
4. Collect human rights-based identity data from complainants alleging police misconduct on a voluntary basis. The data should be standardized, disaggregated, tabulated and publicly reported.
5. Publicly report on:
   
   1. the number of complaints, investigations, and/or appeals conducted that involve allegations of discrimination in policing contrary to the Code, broken down by the prohibited grounds of discrimination in the Code; and
   2. the number of people who were seriously injured or died in incidents involving the police, broken down by race, age, gender and whether the person had or was perceived to have a mental health disability.
6. Amend the limitation periods to file an officer misconduct complaint and an application with the HRTO with respect to discrimination in policing so that they do not begin to run until the release of any report investigating serious injury or death of the civilian.
7. Ensure that public complaints of officer misconduct, including those that allege discrimination, are not investigated by the police services the complaints are related to.
8. Ensure that investigators within oversight bodies reflect the communities they serve and are not substantially comprised of former police officers.

Introduction

Effective oversight is necessary to establish public trust in police

Relationships between the police, First Nations, Métis and Inuit Peoples (Indigenous peoples), African Canadians, other racialized peoples, and people with mental health disabilities and/or addictions are strained. Community concerns about systemic discrimination in the form of racial profiling, discriminatory use of force on people with mental health disabilities, and racism and sexism in investigations of missing and murdered Indigenous women and girls have furthered mistrust.^[2]

Recent tragic events, like the deaths of Reggie Bushie, Abdirahman Abdi, Andrew Loku and Jermaine Carby, as well as discriminatory stop and question practices (carding/street checks) have eroded community trust, which is essential to effective policing, and ultimately public safety. Frayed community relationships reduce the likelihood of civilians reporting crime, cooperating with police investigations, and providing evidence in court.^[3]

Effective police oversight is necessary to establish public trust in police. As the U.S. Department of Justice Civil Rights Division stated in its investigation of the Baltimore Police Department, “BPD’s persistent failure to hold officers accountable for misconduct contributes to an erosion of the community trust that is central to effective law enforcement.”^[4] Similarly, the United Nations Handbook on police accountability, oversight and integrity states:^[5]

Enhancing police accountability and integrity is primarily meant to establish, restore or enhance public trust and (re-)build the legitimacy that is a prerequisite for effective policing.

This may be achieved through establishing a system of civilian oversight. Accepting external, civilian scrutiny is a hallmark of a democratic police force, that is, one that is responsive and accountable to the needs of the public.

Across North America, including in Ontario, the calls for effective police oversight are getting louder, with frequent demonstrations and demands for a complete overhaul of the current system. The lack of transparent, independent and regular monitoring of police services and an effective mechanism to hold police accountable for systemic discrimination have been at the very heart of movements like Black Lives Matter and advocacy around justice for missing and murdered Indigenous women and girls.

For example, Sandy Hudson, a community organizer and founder of Black Lives Matter Toronto, has described a lack of accountability for anti-Black racism by police, and has publicly called on the Government to collect race-based statistics on a “system-wide level.”^[6]

Similarly, following the death of Mr. Abdi, a coalition of community and advocacy groups, including the African Canadian Legal Clinic, Canadian Association of Somali Lawyers and the Canadian Labour Congress, called on the Government to collect race-based data and remedy the gap in oversight and accountability for systemic discrimination by police.^[7]

The Ontario Native Women’s Association (ONWA) and Ontario Federation of Indigenous Friendship Centres (OFIFC) prepared a Strategic Framework to End Violence Against Aboriginal Women. It includes general requirements for “governments to evaluate periodically the effectiveness of federal, provincial, First Nation and local responses to offences against Aboriginal women” and for accountability mechanisms to be built into the design of the strategy.^[8]

Furthermore, the United Nations Report of the Inquiry concerning Canada of the Committee on the Elimination of Discrimination Against Women (CEDAW) found:^[9]

Concerns about the effectiveness and independence of mechanisms to address complaints against the police emerged very clearly during discussions with various stakeholders. The designated members heard testimonies that incidents involving police officers were not taken seriously when reported. The prevailing distrust among aboriginal women is compounded by reports that the oversight bodies that investigate and punish police misconduct, abuse of authority and any other act contrary to police ethics are not sufficiently independent and effective.

The OFIFC has written to the Government about Indigenous community members’ feelings of “despair and powerless” when they make police complaints, and advocated for more transparency and accountability from police oversight bodies. Accountability underlies the Truth and Reconciliation Commission of Canada’s call to action to eliminate the over-representation of Indigenous peoples in custody over the next decade.^[10]

The OFIFC, along with over 20 community and advocacy groups, supported the OHRC’s recommendations in its submissions to the Ministry of Community Safety and Correctional Services on the Strategy for a Safer Ontario, including that there be independent, arms-length and public monitoring of police services and police services boards regarding systemic discrimination.^[11]

Mandate and scope of the Independent Review

Justice Tulloch of the Court of Appeal for Ontario is tasked with reviewing the OIPRD, SIU and OCPC. He has a mandate to address areas connected to human rights, which includes making recommendations to enhance the transparency and accountability of the police oversight bodies while preserving fundamental rights, including possible collection of demographic statistics and mental health information.^[12]

The OIPRD, SIU and OCPC are not the only bodies that affect monitoring and accountability for systemic discrimination in policing. The Office of the Chief Coroner for Ontario (OCCO), Ombudsman of Ontario (Ombudsman), police services boards, police complaints system and human rights system also form part of the relevant framework. The entire accountability framework is important context for the Independent Review.

While the OHRC’s submissions are limited to oversight and accountability for systemic discrimination in policing, the OHRC acknowledges that there are other relevant forms of misconduct and accountability issues that may be considered as part of the Review (e.g. unlawful arrests, assaults, violations of privacy, lack of efficiency, etc.) and that the oversight system, as a whole, would benefit from greater transparency and accountability.

The Ontario Human Rights Commission

The OHRC is the provincial statutory agency responsible for promoting and enforcing human rights, engaging in relationships that embody the principles of dignity and respect, and creating a culture of human rights compliance and accountability. We act as a driver for social change based on principles of substantive equality. We accomplish our mission by exposing, challenging and ending entrenched and widespread structures and systems of discrimination through education, policy development, public inquiries and litigation. This includes reviewing legislation, regulations and policies for consistency with the intent of the Code.^[13]

The OHRC has created the following resources that may be of assistance in undertaking this Independent Review:

• Policy on preventing discrimination based on mental health disabilities and addictions (2014)^[14]
• Minds that Matter: Report on the consultation on human rights, mental health and addictions (2012)^[15]
• Human rights and policing: Creating and sustaining organizational change (2011)^[16]
• Count me in! Collecting human rights-based data (2009)^[17]
• Policy and guidelines on racism and racial discrimination (2005)^[18]
• Paying the Price: The human cost of racial profiling (2003)^[19]

The OHRC also made the following submissions on systemic discrimination in policing:

• Ministry of Community Safety and Correctional Services on the Strategy for a Safer Ontario (2016)^[20]
• Ministry of Community Safety and Correctional Services on Street Checks (2015)^[21]
• Office of the Independent Police Review Director’s Systemic Review of Ontario Provincial Police Practices for DNA Sampling (2014)^[22]
• Independent Review of the Use of Lethal Force by the Toronto Police Service (2014)^[23]
• Ombudsman’s Investigation into the Direction Provided to Police by the Ministry of Community Safety and Correctional Services for De-escalating Conflict Situations (2014)^[24]

The OHRC has worked with various police services and boards in Ontario, including through multi-year Human Rights Project Charters with the Toronto Police Service, the Windsor Police Service and the Ontario Police College. These projects aim to embed human rights in all aspects of operations so that police services can meet the needs of an increasingly diverse population. However, the OHRC has found that these partnerships can only address internal policies, processes and procedures and are often insufficient to change ingrained institutional culture. Moreover, these projects do not themselves enhance independent monitoring or accountability for systemic discrimination.

Although we continue to work collaboratively with police services, we have also been involved in litigation addressing discrimination in policing.^[25] In 2012, OHRC litigation led to an agreement with the Ottawa Police Services Board to conduct the first long-term race-based traffic stop data collection project by a major Canadian police service.^[26] The data from this project revealed that “Middle Easterner” and “Black” groups are over-represented in traffic stops by police. The significant disproportion in traffic stops is consistent with racial profiling, and sends a strong message that work against racial discrimination must now translate into action and accountability.^[27]

The Human Rights Code and its relationship to the Police Services Act

The Code sets out Ontario’s most fundamental rights and responsibilities and has quasi-constitutional status.^[28] The Code generally has primacy over other Ontario laws.^[29] It must be considered when interpreting, applying or amending the Police Services Act, and when developing standards, guidelines, policies and training.

Indeed, the declaration of principles of the Police Services Act specifically references the importance of safeguarding the rights protected under the Code and the Charter.^[30] Justice Morden reviewed these principles in his report on policing during the G-20 and stated the Code and Charter have a “constant bearing” on the performance of officer duties.^[31] Finally, the importance of human rights is reflected in the prescribed Code of Conduct of the Police Services Act, which prohibits discrimination or harassment on Code grounds.^[32]

Systemic discrimination in policing is a reality

Many Supreme Court of Canada decisions and research studies show that systemic discrimination in policing is a reality.

Section 1 of the Code protects individuals from discrimination in police services, because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.^[33] The ground of disability includes past, present and perceived mental health disabilities and addictions. A person may also experience discrimination based on several overlapping and intersecting aspects of their identity.^[34]

The Code protects against both direct discrimination^[35] and adverse effect discrimination,^[36] both of which may be systemic. The OHRC defines systemic or institutional discrimination as “patterns of behaviour, policies or practices that are part of the social or administrative structure of an organization, and which create or perpetuate a position of relative disadvantage" for Code protected-groups.^[37]

Systemic discrimination in policing includes but is not limited to:

• Racial profiling, which can occur in, for example, traffic stops, searches, DNA sampling, arrests, and incidents involving use of force^[38]
• Discriminatory use of force on people with mental disabilities due to behaviours and responses to police instructions that may seem unusual, unpredictable or inappropriate or due to police reliance on stereotypical assumptions about dangerousness or violence^[39]
• Racism and sexism in police investigations of missing and murdered Indigenous women and girls.^[40]

Anti-Indigenous racism

According to the Report of the Ipperwash Inquiry and Jonathan Rudin’s paper commissioned by the Inquiry, there is a history of mistrust between Indigenous Peoples and the police, which is rooted in:^[41]

• The legacy of colonialism
• The role of the police in attempts to assimilate Indigenous peoples, including through apprehending children to have them attend residential school, and later in support of child welfare agencies
• Government reliance on the police to resolve Indigenous rights disputes
• Over-representation of Indigenous peoples in the criminal justice system
• Racism on the part of the police.

The Supreme Court has repeatedly recognized the presence of anti-Indigenous racism in society and in the criminal justice system. In R. v. Ipeelee, the Supreme Court instructed courts to take judicial notice of such matters as “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.”^[42]

In R. v. Williams, the Supreme Court acknowledged that there is widespread racism against Indigenous peoples including stereotypes about their “credibility, worthiness and criminal propensity” and even the “equation of being drunk, Indian and in prison.” The Court agreed with the Canadian Bar Association which found that these stereotypes stand in the way of seeing Indigenous people as equals.^[43] The Supreme Court took judicial notice of the findings of the Royal Commission on Aboriginal Peoples and Report on the Cariboo-Chilcotin Justice Inquiry and concluded that “[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system.”^[44]

Citing its earlier decision in Williams, the Supreme Court held that the “excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement of the aboriginal peoples from the Canadian criminal justice system is concerned. Aboriginal people are overrepresented in virtually all aspects of the system.”^[45]

There have been “over two decades of government studies and reports from across Canada which have documented the history and current reality of widespread racism experienced by Indigenous communities giving rise to systemic discrimination in the justice system.”^[46] Justice Iacobucci’s report, First Nations Representation on Ontario Juries, described several systemic barriers throughout Ontario’s justice system, from over-policing of Indigenous youth and the absence of translation services, to greater use of remands and a lack of post-discharge support for Indigenous offenders.^[47]

Anti-Black racism

Last month, the United Nations Working Group of Experts on People of African Descent found that there is “clear evidence that racial profiling is endemic in the strategies and practices used by law enforcement” and urged the Government to “develop and implement an African Canadian Justice Strategy to address the anti-Black racism and discrimination within the criminal justice system.”^[48]

The Supreme Court has also repeatedly recognized the presence of anti-Black racism in society and the criminal justice system. For example, in R v. R.D.S., the Court quoted from the Ontario Court of Appeal’s decision in R. v. Parks:^[49]

Racism, and in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes.

In accepting the existence of racism in Canadian Society, the Supreme Court, quoting the Nova Scotia Family Court, stated “A person would have to be stupid, complacent or ignorant not to acknowledge its presence, not only individually, but also systemically and institutionally.”^[50]

In R. v. Spence, the Supreme Court again quoted from R. v. Parks and re-stated the following from Stephen Lewis’ 1992 report:^[51]

First, what we are dealing with, at root, and fundamentally, is anti-Black racism. While it is obviously true that every visible minority community experiences the indignities and wounds of systemic discrimination throughout Southern Ontario, it is the Black community which is the focus. It is Blacks who are being shot, it is Black youth that is unemployed in excessive numbers, it is Black students who are being inappropriately streamed in schools, it is Black kids who are disproportionately dropping out, it is housing communities with large concentrations of Black residents where the sense of vulnerability and disadvantage is most acute, it is Black employees, professional and non-professional, on whom the doors of upward equity slam shut. Just as the soothing balm of “multiculturalism” cannot mask racism, so racism cannot mask its primary target. It is important, I believe, to acknowledge not only that racism is pervasive, but that at different times in different places, it violates certain minority communities more than others. As one member of the Urban Alliance on Race Relations said: “The Blacks are out front, and we're all lined up behind.”

Twenty-five years later, Stephen Lewis’ words still ring true for many members of the Black community.

An independent institution to tackle systemic discrimination in policing

Recommendation 1:

Establish, through legislation, an independent institution to undertake proactive, independent and transparent monitoring and enforcement regarding systemic discrimination in policing. The institution should have, among other things:

1. A clearly defined and specific mandate to prevent systemic discrimination in policing
2. Expertise in discrimination analysis under the Human Rights Code and Charter of Rights and Freedoms
3. Understanding of the complex relationships between police and people with mental health disabilities, African Canadians, and Indigenous peoples (including an understanding of the ongoing impact of colonialism)
4. Independence from government, police and other oversight bodies, both in terms of institutional independence and possible apprehension of bias
5. Accountability, transparency and accessibility to the public, which includes proactively engaging with Code-protected communities to identify issues of concern and possible solutions, and public reporting
6. The ability to access and compel production of documents and records, and conduct investigations to uncover patterns of behaviour that may be consistent with systemic discrimination
7. Enforcement powers before a court or specialized tribunal that can order systemic remedies
8. Sufficient capacity and resources to fulfil its mandate on an ongoing basis.

Accountability for systemic discrimination in policing cannot be left to police services or the existing oversight agencies. Meaningful oversight to enhance public trust is best served by establishing an independent institution. Engagement with First Nations is essential in determining whether and the extent to which the institution has jurisdiction over First Nations police services in Ontario.

Systemic discrimination in policing is a reality, yet it is still often denied by police services. For example, in the face of a glaring over-representation of young Black and Middle Eastern men in traffic stops of the Ottawa Police Service between June 27, 2013 and June 26, 2015,^[52] the Chief of the Ottawa Police Service was not troubled and claimed that the researchers found that the “numbers are not racial profiling.^[53] When the OHRC publicly stated that the data was “consistent with racial profiling,” the President of the Ottawa Police Association called the OHRC “a petulant child.”^[54] Similarly, in 2012, despite a gross over-representation of African Canadians in carding data in Toronto, including under the category of “general investigation,”^[55] the Chief of the Toronto Police Service stated that there was no evidence to support “notions or activities of racially biased” policing.^[56]

While the OIPRD, SIU, OCPC, OCCO and the Office of the Ombudsman offer some measure of oversight over police, there is a fundamental gap: these agencies do not have sufficient expertise to identify and analyze systemic discrimination, nor do they have the mandate to engage in proactive monitoring and enforcement regarding systemic discrimination.

The Government must address this accountability gap by creating an independent institution to undertake proactive, independent, and transparent monitoring and enforcement regarding systemic discrimination in policing. The institution should have the following hallmarks.

Mandate and expertise

A specific mandate to prevent systemic discrimination in policing is necessary and responsive to calls for change. A clear and focused mandate would decrease public confusion about where to direct complaints of discrimination. Moreover, a specific mandate would allow for recruitment of senior leaders and staff with the skills and competencies that are unique to promoting and protecting human rights, and that may not easily translate to investigating other possible police misconduct. In contrast, a broad, non-specific mandate that focuses on all police misconduct may obscure accountability in the eyes of public, may hinder recruitment of human rights experts, and may lead to certain work being prioritized over efforts to address systemic discrimination.^[57]

Preventing systemic discrimination in policing requires specialized expertise in discrimination analysis under the Code and Charter, including addressing socially significant intersections between race, mental health and poverty. To prevent systemic discrimination in policing against vulnerable groups protected by the Code and to establish trust, the institution must also have expertise in relationships between police and people with mental health disabilities, African Canadians and Indigenous peoples, including an understanding of the impact of colonialism on the relationship between police and Indigenous peoples.

Such expertise is necessary to, among other things:

• Develop rapport and establish trust with vulnerable and marginal communities to facilitate the sharing of sensitive information related to allegations of systemic discrimination in policing
• Conduct thorough human rights investigations, including interviewing vulnerable and marginalized complainants and witnesses
• Uncover patterns or practices consistent with discrimination, including through analyzing disaggregated human rights-based data
• Assess whether systemic deficiencies contribute to discrimination or enable it to persist, for example through review of policies, procedures, practices and institutional culture
• Work with police services and boards to implement human rights organizational change projects
• Develop public interest remedies that are tailored to the problems identified, form the foundation for non-discriminatory policing, and can be ordered by a court or specialized tribunal.

Accountability, transparency and accessibility

Accountability, transparency and accessibility to the public include:

• Proactive and visible engagement with Code-protected groups across the province to identify issues of concern and possible solutions, for example through regular town halls, community advisory committees, focus groups, surveys, etc.
• A clear public communication strategy to increase awareness of its existence
  and functions
• Accessible communication channels to allow the public to directly access information, and provide confidential information to the institution
• Regular public reporting on the number and nature of complaints received, data received and analyzed, the findings of any investigations, the outcomes of any efforts to work directly with police, the outcomes of any legal action taken, and the appropriate use of public funds.

Independence

To avoid the possible apprehension of bias, investigators with a broad spectrum of experience, especially in human rights investigation or related fields such as social work or law, should be employed. The reliance on former police officers should be minimized and confined to tasks that would not lead to an apprehension of possible bias.

Independence from government, police and other oversight bodies requires:^[58]

• A statutory mandate
• Appointment of the Chair by the Lieutenant Governor in Council on the address of the Assembly
• Annual reporting directly to the Speaker of the Assembly
• Unfettered discretion in the exercise of functions or powers
• Independent funding.

Inquiry and enforcement powers

The institution must be granted adequate powers to permit effective oversight for systemic discrimination. This includes the ability to access and compel production of documents and records, and conduct investigations to uncover patterns of behaviour that may be consistent with systemic discrimination. The institution must also be able to initiate an action before a court or specialized tribunal that can order systemic remedies to promote future compliance with the Code.

Capacity and resources

Sufficient capacity and sustained financial and human resources are prerequisites for the institution to achieve its objectives and ensure credibility. It is possible that existing resources could be redeployed from the other oversight bodies to allow the institution to achieve its important mandate.

Human rights-based identity data collection

Recommendation 2:

Direct police services to establish permanent data collection and retention systems to record human rights identity-based data on, but not limited to, all stops of civilians, use of force incidents, and interactions where officers ask about immigration status or conduct immigration status checks. The data should be standardized, disaggregated, tabulated, publicly reported by each police service, and provided to the institution. The data should include age, gender, perceived race, and officer perception of whether the individual has a disability, including a mental health disability.

Recommendation 3:

Require other institutions that exercise police oversight functions to:

3. Publicly release all reports investigating serious injury or death of civilians in incidents involving the police. The reports should have human rights-based information about the victim, including the victim’s race, gender, age, and whether the victim had or was perceived to have a mental health disability, subject to redactions to comply with privacy legislation.
4. Collect human rights-based identity data from complainants alleging police misconduct on a voluntary basis. The data should be standardized, disaggregated, tabulated and publicly reported.
5. Publicly report on:
   
   1. the number of complaints, investigations, and/or appeals conducted that involve allegations of discrimination in policing contrary to the Code, broken down by the prohibited grounds of discrimination in the Code; and
   2. the number of people who were seriously injured or died in incidents involving the police, broken down by race, age, gender and whether the person had or was perceived to have a mental health disability.

The institution tasked with monitoring and enforcement relating to systemic discrimination in policing should review race and mental health-based data to uncover patterns of officer behaviour that may be consistent with systemic discrimination. Where such patterns are evident, the institution could initiate an action before a court or specialized tribunal and seek public interest remedies.

Although human rights-based identity data is central to monitoring and accountability for systemic discrimination, police services, the OIPRD, SIU and OCPC have persistently failed to collect it and the Government has not required it. This frustrates efforts to review the anti-discrimination work of these oversight agencies and hold police services accountable for systemic discrimination.

Models that couple independent monitoring with accountability are most effective

Experiences in the UK and United States show that oversight for systemic discrimination is most effective when it combines regular, independent monitoring with robust accountability – the threat of enforcement.

Her Majesty’s Inspectorate of Constabulary (HMIC) is an independent body that has a legal responsibility to inspect police forces in England and Wales and report on their efficiency and effectiveness. In a 2013 report, it found that 27% (2,338) of stop and search records it examined did not contain reasonable grounds to search people, which suggested that police forces may not have been “fully complying with the requirements of the public sector equality duty.” This duty requires police forces “to have due regard to the need to eliminate unlawful discrimination and promote equality of opportunity, foster good relations and to that end, ensure that they are adequately collecting, analysing and publishing data to demonstrate that they have sufficient information to understand the effect of their work.”^[59]

The report also stated:^[60]

• Members of Black and “minority ethnic groups” were stopped and searched more than White people (compared to the resident population)
• A quarter of almost 20,000 members of the general public surveyed believed that certain groups of people in society are likely to be stopped and searched more often than others, with a third attributing this to unlawful discrimination (this figure increased to around 55% among Black and “minority ethnic” respondents).

HMIC made 10 recommendations, but found in 2015 that insufficient progress had been made on half of them, including the recommendation that Chief Constables and the College of Policing establish “a clear specification of what constitutes the effective and fair exercise of stop and search powers, and guidance in that respect.”^[61] HMIC’s limited authority over accountability is clear: it cannot enforce its recommendations. It can only assess progress made on them.

The U.S. Department of Justice Civil Rights Division, however, operates under a model that couples independent monitoring with enforcement regarding systemic discrimination in policing. It has the authority to conduct investigations and initiate civil actions under federal statutes, which prohibit discrimination, among other things, and allow for systemic remedies.^[62] Depending on what information prompted the investigation, the Division may look at “whether the police department has engaged in a pattern or practice of stops, searches, or arrests that violate the Fourth Amendment; use of excessive force; discriminatory policing; violation of the constitutional rights of criminal suspects; or violation of First Amendment rights.”^[63] The Division “assesses whether any systemic deficiencies contribute to misconduct or enable it to persist” during an investigation. Community engagement is a vital component of its investigations and the systemic remedies developed, when necessary.^[64]

One example of the Civil Rights Division exercising its enforcement powers is a 2016 consent decree requiring the City of Ferguson to implement reforms to ensure that stop, search and arrest practices do not discriminate based on race. The consent decree settled the Civil Rights Division’s pending lawsuit. It was agreed upon after the Division’s investigation found that Ferguson Police Department’s practices “reflected and exacerbated existing racial bias.”

Reforms include requirements that officers be equipped with body-worn cameras; provided with clear policy, training and supervisory direction on prohibited conduct, such as selective enforcement activities based on stereotypes or bias; and trained annually on the existence and impact of stereotyping and implicit bias on officer decision-making and public interactions. Furthermore, the City of Ferguson agreed to assess, and if necessary, improve the accuracy and reliability of processes for collecting and analyzing “racial profiling data;” and to take immediate corrective action if it identifies indications of unlawful discriminatory conduct. An independent monitor will assess the consent decree’s implementation, provide technical assistance to Ferguson and report on Ferguson’s implementation of reforms through periodic public reports.^[65]

Existing oversight bodies cannot tackle systemic discrimination

Recommendation 3

Require other institutions that exercise police oversight functions to:

1. Notify complainants or next of kin of their right to file an application with the Human Rights Tribunal of Ontario (HRTO) for alleged discrimination under the Code and provide the contact information of the HRTO and Human Rights Legal Support Centre (HRLSC).
2. Notify the institution tasked with oversight for systemic discrimination in policing about complaints received and investigations conducted that involve allegations of discrimination, including applications to the HRTO alleging discrimination in policing services.
6. Amend the limitation periods to file an officer misconduct complaint and an application with the HRTO with respect to discrimination in policing so that they do not begin to run until the release of any report investigating serious injury or death of the civilian.
7. Ensure that public complaints of officer misconduct, including those that allege discrimination, are not investigated by the police services the complaints are related to.
8. Ensure that investigators within oversight bodies reflect the communities they serve and are not substantially comprised of former police officers.

For several reasons, including the existing legislative frameworks, police oversight bodies have not been sufficiently responsive to community calls for transparent, independent and proactive monitoring and accountability for systemic discrimination in policing.

The OIPRD, SIU, OCPC, OCCO and Ombudsman do not have sufficient expertise to identify and analyze systemic discrimination, nor do they have mandates to engage in proactive monitoring and enforcement regarding systemic discrimination. Simply put, they do not have the hallmarks of effective oversight for systemic discrimination.

While the OHRC has the mandate and expertise to play a role in police oversight, it does not have sufficient resource capacity to proactively and regularly monitor and hold all police services accountable for systemic discrimination in policing. For example, since the changes to the human rights system in 2008, the OHRC no longer has the capacity to receive complaints directly from the public nor to investigate them. Moreover, the police are but one type of service provider with ongoing obligations under the Code, and the OHRC cannot gear the entirety of its limited resources toward greater accountability in one sector.

Office of the Independent Police Review Director

The OIPRD was established in 2007 with a mandate to receive, manage and oversee all public complaints about police in Ontario. Complaints can involve the conduct of a police officer, or policies and services of a police force.^[66]

The OIPRD also has a mandate to conduct systemic reviews that “are the subject of, or that give rise to” public complaints.^[67] Since its inception, the OIPRD has completed two systemic reviews. According to the OIPRD, a systemic review “goes beyond the immediate issues raised by a given complaint and looks at the underlying causes to determine whether an organization’s practices comply with its underlying legal and policy framework and, whether that framework can be improved to prevent such issues from arising in the future.” The purpose of a systemic review is “to determine whether systemic failings have occurred, to make recommendations to address those failings and to help restore and enhance public confidence in police and policing.”^[68] However, the OIPRD’s recommendations are not enforceable.

The OIPRD’s mandate is complaint-driven. Discrimination under the Code is only one form of misconduct that can give rise to a public complaint insofar as it is a subset of discreditable conduct.^[69] An analysis of the OIPRD’s activities to date reveals that discrimination is not at the core of the OIPRD’s mandate, nor does it appear that the OIPRD engages in regular monitoring for systemic discrimination.^[70]

Even if discrimination in policing becomes a priority of the OIPRD, the OHRC has concerns about the OIPRD’s expertise and capacity to develop that expertise, despite having received human rights training from the OHRC in the past. Instructive examples include the OIPRD’s systemic review of OPP practices for DNA canvasses, entitled “Casting the Net,”^[71] and the OIPRD investigation into the “Neptune 4” complaint.^[72]

Finally, in our consultations with community to develop these submissions, we were consistently told that marginalized communities view the OIPRD as biased because half of its 14 investigators are former police officers, and it relies on police services themselves to conduct the majority of investigations.^[73] Of the 2,926 complaints received by the OIPRD in between April 1, 2014 and March 31, 2015, 1,280 were screened-in for investigation. Of these complaints, 1,105 (87%) were referred back to the police service that was the subject of the complaint for investigation, rather than being retained by the OIPRD for investigation.^[74] There is a clear apprehension of bias where police officers of the same force are tasked with investigating the conduct of their fellow officer(s).

Special Investigations Unit

The SIU was established in 1990 with a mandate to cause investigations to be conducted into the circumstances of serious injuries and deaths that may have resulted from criminal offences, including sexual assaults, committed by police officers. The SIU does not have the authority to investigate alleged violations of the Code or make findings of discrimination.^[75]

Conduct investigated by the SIU may not result in laying criminal charges, but could still be consistent with discrimination. In other words, discriminatory police conduct that violates the Code may not necessarily result in criminal charges. For example, an SIU investigation may reveal that an officer did not attempt to use alternative communication strategies, or de-escalate, at the beginning of an interaction when there was no serious threat to officer or public safety, but ultimately, the SIU may find that the officer was justified in the use of lethal force (i.e. there are no reasonable grounds to believe that the officer exceeded the ambit of justifiable force in the circumstances pursuant to sections 25(3) and 34 of the Criminal Code^[76]).

Former SIU Director Ian Scott’s comments on the death of Michael Eligon, who was shot by police in February 2012, speak to the inherent limitations of the SIU’s jurisdiction in similar circumstances. Mr. Eligon was involuntarily admitted to Toronto East General Hospital under the Mental Health Act. He was shot on the street while wearing a hospital gown and carrying scissors. When the subject officer first encountered Mr. Eligon, he concluded that Mr. Eligon had a mental health disability. Former SIU Director Scott stated:^[77]

There are legitimate questions arising from this tragic incident. How did Mr. Eligon elope from the hospital? Should front line officers receive different training to deal with these situations? Should they be issued CEWs? While questions of this nature may be addressed in an inquest if one is called by the Coroner’s office, they are not directly relevant to the question I am statutorily duty bound to answer: was the subject officer justified in the use of lethal force in these circumstances? As I have attempted to explain, I am of the view that he was and accordingly, I have no reasonable grounds to believe the officer committed a criminal offence in relation to the tragic death of Mr. Eligon.

Indeed, the jury from the inquest into the deaths of Jardine-Douglas, Klibingaitis and Eligon made several recommendations relating to reducing discriminatory use of force on people with mental health disabilities that were echoed by the OHRC. These included the need to collect and analyze human rights-based data, provide integrated scenario-based training on de-escalation, and expand the availability of Mobile Crisis Intervention Teams.^[78]

Alternatively, an SIU investigation may reveal facts that suggest that an officer’s questioning of an African Canadian was consistent with racial profiling, but the SIU may find that the interaction evolved to a point that there were reasonable grounds to conclude that the subject officer acted lawfully in self-defence. The SIU investigation and inquest into the death of Jermaine Carby revealed that Mr. Carby, an African Canadian and passenger in a vehicle, was carded moments before he was shot.^[79] The SIU found that Mr. Carby pulled a knife during subsequent questioning, and there were reasonable grounds to conclude that the subject officer acted lawfully in self-defence.^[80]

To be clear, the results of the SIU’s investigations into the deaths of Mr. Eligon and Mr. Carby do not necessarily mean that the SIU is not fulfilling its mandate. Rather, they illustrate the limitations of its jurisdiction. The SIU is not tasked with conducting

investigations into alleged violations of the Code. The SIU was not assessing whether Mr. Eligon was subject to discriminatory use of force based on race and mental health or whether Mr. Carby was the victim of racial profiling.

While greater transparency surrounding the process and conclusions of the SIU is important, the OHRC does not believe that increased transparency alone will be effective in ensuring accountability and oversight for systemic discrimination in policing. Even in the case of Andrew Loku, where a redacted SIU report was released to the public,^[81] it did not quell calls for greater accountability for his shooting by police.^[82] The SIU did not and could not investigate whether there was discrimination.^[83]

Office of the Civilian Police Commission

The OCPC was established in 2007 and primarily hears appeals of police disciplinary decisions. It also has a mandate to, among other things: ^[84]

• Adjudicate disputes between municipal councils and police service boards involving budget matters
• Conduct hearings into requests for reducing, abolishing, creating or amalgamating police services
• Conduct investigations and inquiries into the conduct of chiefs of police, police officers and members of police services boards
• Make recommendations on the policies of or services provided by a police service.

There is no publicly available information to indicate that the OCPC has used its investigation and inquiry powers to address discrimination in policing, and we understand it has limited capacity and resources to undertake such investigations. As well, the OCPC does not have expertise in discrimination analysis or a mandate to prevent systemic discrimination.

Office of the Chief Coroner of Ontario

Coroner’s inquests are conducted by a coroner before a jury of five community members.^[85] A coroner must hold an inquest if a person dies while being detained by or in the actual custody of a police officer.^[86] The purpose of an inquest is to inform the public about the circumstances of a death (who, where, when, how and by what means).^[87] Coroner’s juries also prepare recommendations to prevent similar deaths in the future.^[88] The OCCO does not have a specific mandate to prevent systemic discrimination, and the Chief Coroner or presiding Coroner is not required to have legal or human rights expertise.

Recommendations of coroner’s juries, like those from the inquests into the deaths of Jardine-Douglas, Klibingaitis, Eligon and Carby, are sometimes related to reducing discrimination. However, the coroner’s juries cannot make findings of discrimination.^[89] In addition, their recommendations are not enforceable and are often not implemented:^[90]

There have been scores of fatal police shootings in Ontario involving persons with mental illness in recent years – more than 40 just since 2000. They have sparked multiple probes and studies. Coroner’s inquests have returned more than 550 recommendations for improvement and change since 1989. In the wake of the Yatim shooting, retired Supreme Court Justice Frank Iacobucci published a report and recommendations for the Toronto Police Service. As for Ontario’s Ministry of Community Safety and Correctional Services, which has statutory responsibility for policing under the Police Services Act, it began a study of police interactions with persons with mental illness a year before Sammy Yatim’s death, but it has produced little, more than four years later.

Over and over, dating back nearly three decades, these reports and recommendations have emphasized the importance of police using de- escalation techniques when dealing with people in crisis. They call for simple directions, such as calmly offering to help, instead of shouting, with guns drawn. Yet very little has been done to implement this advice.^[91]

Ombudsman

The Ombudsman investigates complaints from the public about Ontario Government services.^[92] Like coroner`s juries, recommendations of the Ombudsman may relate to reducing discrimination, like those in A Matter of Life and Death, but they are not enforceable.^[93] Furthermore, based on a review of the Ombudsman’s investigations that are related to human rights, it does not appear that the Ombudsman undertakes a discrimination analysis or makes findings of discrimination.^[94] Nor does it appear that the Ombudsman engages in regular monitoring for systemic discrimination.^[95] In any event, police services boards are not subject to the Ombudsman’s oversight.^[96]

Police services boards and police complaints systems

Despite relevant case law,^[97] the interpretation of the distinction between policy and operations by police services has often thwarted accountability for systemic discrimination. It stopped the implementation of the Toronto Police Services Board’s April 2014 Policy on Community Contacts, which limited “Contacts” to when officers are: investigating a specific offence or a series of offences; preventing a specific offence; and ensuring that the individual is not at risk.^[98] It also stopped the implementation of the Peel Police Services Board’s recommendation to suspend the practice of street checks.^[99]

Also, to the OHRC’s knowledge, police disciplinary tribunals do not have the jurisdiction to address allegations of systemic discrimination (as opposed to individual officer misconduct related to discrimination) or order broad systemic remedies. Indeed, the OHRC was not permitted to intervene in the Neptune 4 matter at the Toronto Police Service Tribunal to provide its perspective on racial profiling.^[100] Finally, as indicated above, public complaints about officer misconduct are overwhelmingly investigated by the police services the complaints are related to, rather than an independent body.

The Ontario Human Rights Commission

Ontario’s human rights system is made up of three separate agencies. The Human Rights Tribunal of Ontario is where human rights applications are filed and decided. The Human Rights Legal Support Centre provides legal assistance to people who feel they have experienced discrimination under the Code. And, as stated earlier, the OHRC is responsible for promoting and enforcing human rights, engaging in relationships that embody the principles of dignity and respect, and creating a culture of human rights compliance and accountability. We accomplish our mission by exposing, challenging and ending entrenched and widespread structures and systems of discrimination through education, policy development, public inquiries and litigation.

Given its statutory mandate and associated monitoring and enforcement powers, the OHRC does play a role in police oversight. For example, the OHRC published Human rights and policing: Creating and sustaining organizational change,^[101] made submissions to the Ombudsman and Justice Iacobucci on police use of force on people with mental health disabilities,^[102] and successfully litigated the first racial profiling complaint before the HRTO.^[103]

Most recently, the OHRC provided the Government with detailed submissions on its Strategy for a Safer Ontario with the aim of embedding a human rights lens into policing.^[104] The OHRC is also intervening in Roberts v. Toronto Police Services Board, an application before the HRTO that raises the issue of racial profiling, including in officer use of force.^[105]

However, given the breadth of the OHRC’s mandate and the current climate of fiscal restraint, the OHRC does not have sufficient resource capacity to proactively and regularly monitor and hold all Ontario police services (over 50 in total) accountable for systemic discrimination in policing. While the OHRC will prioritize work related to systemic discrimination in the criminal justice system over the next five years with its current resources, this cannot be seen as a substitute for an institution that satisfies the hallmarks of effective oversight for systemic discrimination in policing. Furthermore, unless specifically tasked by the Government with responsibility for addressing accountability for systemic discrimination in policing, the OHRC could not justify to the public a decision to allocate a large portion of its existing resources to this area. While there is a pressing need to address this issue, there are also pressing concerns across the breadth of the OHRC’s mandate.

Conclusion

Systemic discrimination in policing is a matter of public concern and urgency. In the face of police denial and significant gaps within existing oversight bodies, fundamental change is needed. The time for action on the OHRC’s recommendations is now. The Government must establish an independent institution specifically tasked with proactive independent monitoring and enforcement regarding systemic discrimination in policing.