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Submission of the Ontario Human Rights Commission on the modifications to the Equipment and Use of Force Regulation under the Community Safety and Policing Act, 2019.

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The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide this submission on modifications to the Equipment and Use of Force Regulation[1] (the “Regulation”) under the Community Safety and Policing Act, 2019 (CSPA).

 

1. The Ontario Human Rights Commission (OHRC)

The OHRC is an independent human rights body established under the Ontario Human Rights Code (Code). The OHRC is responsible for promoting and advancing human rights and addressing systemic discrimination in Ontario. In carrying out its mandate, the OHRC may take positions that publicly challenge or are critical of government policies and practices.

Addressing discrimination in policing has been an important part of the OHRC’s work for over 20 years. The OHRC has created resources to help police services identify, monitor and reduce discrimination; Paying the Price, the 2003 report on the OHRC inquiry into the effects of racial profiling; Under Suspicion, its 2017 research and consultation report on racial profiling, and its 2019 Policy on eliminating racial profiling in law enforcement.[2] The OHRC has made many submissions to the government and independent reviewers about how to address systemic discrimination in policing[3] and the OHRC’s Framework for change to address systemic racism in policing identifies 10 essential steps for eliminating discriminatory practices from policing across the province.

The OHRC is currently engaged in an inquiry into anti-Black racism by the Toronto Police Service and has a Memorandum of Understanding to work with the Peel Regional Police and Peel Police Services Board to address systemic racism and discrimination in policing.

 

2. Overview

There are longstanding concerns about police use of force in Ontario, particularly from Code-protected groups.  Data on police use of force practices confirm that there is a pressing need to address this concern.

Use of force data from Ontario’s three largest municipal police services indicate that Black communities and other racialized groups are over-represented in use of force incidents. Toronto Police Services (TPS) 2020 Race and Identity Based Data Collection Findings states that Black, East/Southeast Asian, Middle Eastern and Latino people were over-represented in reported use of force incidents compared to their presence in the enforcement action[4] population.[5] TPS also reported that Black persons were over-represented in incidents where “less than lethal” force was used.[6]  Reports also indicate that conducted energy weapons (CEWs) are disproportionately used against persons in crisis by TPS.[7]

Peel Regional Police’s (PRP) 2021 Use of Force Report indicates that Black, East Southeast Asian, and Middle Eastern comminutes were over-represented in police use of force data.[8]  Data from PRP also finds that CEWs were amongst “the most frequent types of force used in 2021” and were used 70.5% of the time that force was used against a Black person.[9]  CEWs were used 438 times by PRP in 2021, which represents a 6% increase from 2020 when CEWs were used 413 times. [10][11]   

York Regional Police’s 2022 Use of Force Annual Report indicates subjects “perceived to be Black were disproportionately involved in use of force incidents when considering the population composition of York Region.”[12]

The incoming Community Safety and Policing Act (CPSA) includes sections that begin to respond to these concerns. For example, the CPSA requires officers to receive training on human rights and systemic racism.[13] The CPSA also declares that the rights guaranteed by the Charter of Rights and Freedoms and protected by the Code[14] serve as guiding principles for the legislation.  In addition, the Anti-Racism Act, and the Equipment and Use of Force Regulation require police services to collect race-based data on some use of force incidents.[15] Some police services have taken steps to implement training which emphasizes de-escalation.  

To advance these efforts the Regulation must ensure that de-escalation is attempted before any weapons is used, implement tighter standards for CEW use, and require officers to consider the subject’s mental health before CEWs are deployed.

The OHRC recommends the following:

 

3. Recommendations

a. The Use of Force Regulation should integrate de-escalation principles.

The “Summary of Weapon Approvals, Specifications and Standards for Use” offered for review with the Regulation includes criteria that must be satisfied before weapons are used.[16] These standards should guide officers to use de-escalation techniques, where possible, before using any weapon.   This guidance should include best practices identified in the OHRC’s Framework for Change, and the OHRC’s Racial Profiling Policy which include:

  1. Require communication and de-escalation attempts before any use of force, whenever possible, and mandate specific de-escalation alternatives that should be considered as priority options before using force
     
  2. Require officers to give a verbal warning, when possible, before using deadly force
     
  3. Require officers to exhaust all other reasonable alternatives before resorting to using deadly force. This should include restricting an officer’s discretion to use lethal force to apprehend a fleeing suspect[17]

Currently, the requirement to use de-escalation is not consistently set out in the Regulation, or the guidelines found in the Policing Standards Manual.[18] For example, the Regulation does not make it clear that de-escalation should be attempted before weapons are used. By incorporating the requirement to de-escalate, the standards prescribed by the Regulation will align with leading use of force practices and the provincial use of force model.

 

b. The Regulation should require officers to consider mental health before CEW use.

Concerns about the disparate use of CEW’s on persons in crisis can be mitigated by implementing tighter standards in the new Regulation.

The Summary of Weapon Approvals, Specifications and Standards for Use[19] provides the following criteria for CEW use:

A member of a police service shall not use a conducted energy weapon on a person unless the member reasonably believes that, (i). the person is,

a) without the consent of another person, applying force intentionally to that person, directly or indirectly, or

b) attempting or threatening, by an act or a gesture, to apply force to another person, if the person has, or causes that other person to believe on reasonable grounds that the person has, present ability to effect this purpose; or

c) taking into account the totality of the circumstances, there is an imminent need for control of the person in order to, i. arrest the person, or ii. prevent the commission of an offence

The “totality of the circumstances” should include Code-related factors[20] such as mental health. In other words, the Regulation should guide officers to assess whether a mental health crisis or behavior related to addiction are factors before a CEW is drawn or deployed.  

In Nova Scotia, provincial CEW guidelines instruct officers to consider whether the CEW will be used to control a “person with mental illness”.  Officers are also guided to consider whether the subject is displaying, “signs/symptoms of Autonomic Hyperarousal State (AHS), which is more commonly referred to as excited delirium.”[21] In addition, officers are required to request emergency health services prior to CEW deployment, wherever possible, when the subject is experiencing AHS.  Standards in Ontario should adopt a similar approach.

 

c. The Regulation should impose a higher standard for CEW use.

To reduce the number of instances where CEWs are deployed, Ontario should implement more restrictive standards for their use.  A comparative analysis of CEW use standards in Ontario, Nova Scotia, Alberta, and British Columbia (BC) finds that, “The BC guidelines possess the strongest language of all the provincial guidelines studied as to when an officer is permitted to deploy a CEW on a subject.”[22]   Following the Braidwood Commission on the Death of Robert Dziekanski[23], BC renewed their guidelines, which helped the province reduce CEW use.[24] 

As noted above, the Summary of Weapon Approvals, Specification and Standards for Use in Ontario provides that Officers should not use a CEW unless, among other factors, the person is applying force intentionally to another person without their consent or attempting or threatening, by an act or gesture, to apply force to another person. [25] This standard is less restrictive than the threshold used in BC. In BC, provincial guidelines for CEW use, “prohibits officers from discharging a CEW against a person unless: a) the person is causing bodily harm to either themselves, the officer, or a third party; or, b) the officer is satisfied, on reasonable grounds, that the person’s behaviour will imminently cause bodily harm either to themselves, the officer, or a third party.”[26]

Guidelines in BC also prohibit officers from drawing or displaying a CEW unless the officer is satisfied on reasonable grounds that the situation has some potential for bodily harm.[27]  In addition, BC guidelines require officers to issue a warning before a CEW is deployed. [28]   Ontario’s Regulation should include similar restrictions. 

 

d. The standards for weapon use should be reviewed regularly.

The Regulation should require regular review of the standards prescribed for all approved weapons. The review should require police services to incorporate best practices, integrate feedback from communities and address Code-related disparities in use of force data.   A similar approach has been adopted in Nova Scotia. For example, CEW guidelines in that province state that, “policies and procedures shall be reviewed as required and no less than annually with revisions and updating as necessary, particularly regarding new research findings, legal changes or manufacturer product notifications”[29]

 

4. Conclusion

Police use of force practices have disproportionally impacted racialized communities, persons with mental health issues and other Code-protected groups in Ontario.  To effectively address disparities in use of force data and systemic discrimination in policing the Regulation should adopt the OHRC’s recommendations.  

 

[1] Equipment and Use of Force, RRO 1990, Reg 926 [Regulation].

[2] Other resources include:

[3] Submissions include:

[4] TPS defines enforcement action as follows: “For the purposes of the analyses, incident reports of arrests resulting in charges (including released at scene) or released without charges; Provincial Offences Act Part III tickets; summons; cautions; diversions; apprehensions, and those with role type “subject” or “suspect”. See: Toronto Police Services, 2020 Race and Identity Based Data Collection Findings (June 2022) Online: https://www.tps.ca/race-identity-based-data-collection/2020-rbdc-findings/ at pg 37.

[5] Toronto Police Services, 2020 Race and Identity Based Data Collection Findings (June 2022) Online: https://www.tps.ca/race-identity-based-data-collection/2020-rbdc-findings/ at pg 49.   

[6] Less than lethal force includes CEW’s and less lethal shotgun (bean bag round). See: Toronto Police Services, Race and identity based data collection strategy, Understanding Use of Force and Strip Searches in 2020 Detailed Report, Online:  https://www.tps.ca/media/filer_public/93/04/93040d36-3c23-494c-b88b-d60e3655e88b/98ccfdad-fe36-4ea5-a54c-d610a1c5a5a1.pdf at pg. 54.

[7] CBC, Taser use on emotionally disturbed people a serious problem Tory says, (Mar. 17, 2016) CBC Online: https://www.cbc.ca/news/canada/toronto/taser-report-toronto-police-emoti...

[8] Peel Regional Police, 2021 Annual Use of Force Report, Online: https://www.peelpoliceboard.ca/en/resources/05-08-22---2021-Annual-Use-o... at pg. 13.[PRP UOF Report]

[9] PRP UOF Report at pg. 15

[10] PRP UOF Report at pg. 7.

[11] Ibid.

[12]  The Regional Municipality of York Police Services Board,  2022 Use of Force Annual Report, Online: http://www.yrpsb.ca/usercontent/use-of-force/2022_Annual_Use_of_Force_Report.pdf at pg. 24.

[13] Community Safety and Policing Act, 2019, S0 2019, c.1 at s. 83.

[14] Ibid at s.1.

[15] Police services are not required to collect data on lower-level use of force. For the OHRC’s analysis on reporting requirements see:  Ontario Human Rights Commission “OHRC Submission to the Ministry of the Solicitor General on the Equipment and Use of Force Amendment and implementation of modernized Use of Force Report (October 30,2022) online: Ontario Human Rights commission OHRC submission to the Ministry of the Solicitor General on the Equipment and Use of Force Regulation Amendment and implementation of modernized Use of Force Report | Ontario Human Rights Commission

[16] Government of Ontario,  Ontario’s Regulatory Registry, Use of Force Regulation Under the Community Safety and Policing Act, 2019 Online: Use of Force Regulation under the Community Safety and Policing Act, 2019 (ontariocanada.com); The criteria is summarized from guidelines found the Policing Standards Manual see: https://globalnews.ca/wp-content/uploads/2015/06/use-of-force.pdf.

Authorization for police services to use weapons other than firearms will be established under the new regulation. This will replace the current process where authorization is established by separate Ministerial approvals and standards.

[17] Ontario Human Rights Commission, Framework for Change to address systemic racism in policing (2021), online: Ontario Human Rights Commission https://www.ohrc.on.ca/en/framework-change-address-systemic-racism-policing.

[18] The Policing standards manual and the Regulation set out standards that should be satisfied before approved weapons are used. The standards to not consistently list de-escalation as a requirement.

[19] These criteria are drawn from guidelines found the Policing Standards Manual see: https://globalnews.ca/wp-content/uploads/2015/06/use-of-force.pdf.

[20] The current standards guide officers to avoid using CEWs on pregnant women, elderly persons young child and the visibly frail.  See:  Policing standards manual at section 18 (f).

[21] Laming, Erick. “The Expansion of Conducted Energy Weapon Use in Ontario: Pacification and Policy Development.” (2015). at pg. 81-82. Also see Nova Scotia Guidelines on Conducted Energy Weapons Online: https://novascotia.ca/just/global_docs/CEW_Guidelines.PDF at s. 2.7, 2.11.   

[22] Ibid at pg 85.

[23] “In October 2007, at the Vancouver International Airport, an officer of the Royal Canadian Mounted Police (“RCMP”) used a conducted energy weapon against Mr. Robert Dziekanski, who, after being subdued and handcuffed, died within minutes.” See: Braidwood Commission on Conducted Energy Weapon Use (BC), & Braidwood, T. R. (2009). Restoring Public Confidence: Restricting the Use of Conducted Energy Weapons in British Columbia.

[24] Laming, Erick. “The Expansion of Conducted Energy Weapon Use in Ontario: Pacification and Policy Development.” (2015). at pg 110.

[25] Government of Ontario,  Ontario’s Regulatory Registry, Use of Force Regulation Under the Community Safety and Policing Act, 2019 Online: Use of Force Regulation under the Community Safety and Policing Act, 2019 (ontariocanada.com);The Policing Standards Manual also includes a standard for CEW use which are less restrictive than BC’s standard See: Policing Standards Manual, at section 17.

[26] British Columbia Provincial Policing Standards [BCPPS], 2015, s. 1

[27] BCPPS at, s. 6

[28] BCPPS at s. 4; Laming, Erick. “The Expansion of Conducted Energy Weapon Use in Ontario: Pacification and Policy Development.” (2015) at pg 85.; In Ontario officers need only, when appropriate, make an announcement “to other officers on the scene that a conducted energy weapon is going to be activated.”  See Policing Standards Manual as s. 18 (c).

[29] Nova Scotia Justice, Nova Scotia Guidelines on Conducted Energy Weapons (CEWs). Retrieved from Nova Scotia Justice website: https://novascotia.ca/just/global_docs/CEW_Guidelines.PDF at s. 2.4; Laming, Erick. “The Expansion of Conducted Energy Weapon Use in Ontario: Pacification and Policy Development.” (2015) at pg 81.