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Addressing anti-Black racism in policing: The OHRC’s inquiry into racial profiling and racial discrimination of Black people by the Toronto Police Service
A Disparate Impact shows the numbers behind the accounts
In August 2020, the OHRC released A Disparate Impact, the second interim report on its inquiry into racial profiling and racial discrimination of Black people by the Toronto Police Service (TPS). The inquiry was launched in November 2017, with the goal of pinpointing problem areas and making recommendations to eliminate them, as a key step to help build trust between the police and Black communities.
A Disparate Impact included two expert reports from criminologist Dr. Scot Wortley, who analyzed quantitative TPS data. The results highlighted in Racial Disparity in Arrests and Charges: An analysis of arrest and charge data from the Toronto Police Service (based on data from 2013 to 2017), and Use of force by the Toronto Police Service: Final report (based on data from 2016 to 2017) are highly disturbing, and confirm what Black communities have said for decades – that Black people bear a disproportionate burden of law enforcement.
For example, although they represented only 8.8% of Toronto’s population:
- Black people represented almost one-third (32%) of all the charges in the charge dataset, while White people and other racialized groups were under-represented
- Only one-fifth (20%) of all charges resulted in conviction, but charges against Black people were more likely to be withdrawn and less likely to result in a conviction – this raises systemic concerns about charging practices
- Black people represented over one-third (34%) of people involved in single-charge “out-of-sight” driving charges (such as driving without valid insurance), which could only be discovered after the police have observed the race of the driver or stopped and questioned the driver
- Black people represented almost four in 10 (38%) people involved in cannabis charges, despite conviction rates and many studies showing that they use cannabis at similar rates to White people
- Black people were involved in approximately one-quarter (25%) of all Special Investigations Unit (SIU) cases resulting in death, serious injury or allegations of sexual assault, and almost four in 10 (39%) cases involving lower-level use of force (where force did not rise to the SIU threshold) – and this over-representation cannot be explained by factors such as patrol zones in low-crime and high-crime neighbourhoods, violent crime rates and/or average income
- Black people were more likely to be involved in use of force cases that involved proactive policing (for example, when an officer decides to stop and question someone) than reactive policing (for example, when the police respond to a call for assistance).
The OHRC called on the TPS, Toronto Police Services Board (TPSB) and the City of Toronto to formally establish a process with Black communities, Black organizations and the OHRC, to adopt and implement legally enforceable remedies that will result in fundamental change.
Black community and advocacy groups such as the Black Legal Action Centre, the Association of Black Law Enforcers and the Canadian Association of Black Lawyers made statements supporting the OHRC’s call for legally enforceable remedies.
The same week the OHRC released A Disparate Impact, the TPSB released its Police Reform Report, which contained 81 recommendations. The OHRC made a deputation to the TPSB in response. We told the TPSB that the approach of the past will not work – action plans without accountability and enforceability are not meaningful. Black communities have not seen meaningful change for decades, despite numerous reports.
In the meantime, the OHRC continues to hear from Black communities in Toronto about the damaging effects of policing, including over-charging and excessive use of force, systemic racism and anti-Black bias in policing – the same issues we have tried to confront for over four decades.
A Disparate Impact was cited by the Ontario Superior Court of Justice as part of the social context of systemic racism in policing when determining an appropriate sentence for Officer Michael Theriault, whose assault of Dafonte Miller with a metal pipe while off duty sparked outrage from Black communities across Canada.
Next steps: a final report
We have experienced some delays related to COVID-19 and the receipt of information from the TPS and TPSB, but our work has continued. Dr. Wortley is completing his analysis of data related to TPS stop, question and search practices. As well, the OHRC has been analyzing TPS and TPSB policies, procedures, training and accountability mechanisms. We have completed interviews of TPS leaders and have sought input from TPS officers, and continue to engage with Black community leaders and advocacy groups.
A final report, which will include an extensive series of recommendations, is now planned for release in fall 2021.
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“I think the accomplishment I’m most proud of is the fact that we began working with the Black community again. We had been seen, I think, to have been working with the police quite clearly trying to get them to move in the right direction, but it was really important to me that all the communities that the province – that the Human Rights Commission is supposed to serve understood that we were there to serve them.”
- Ruth Goba, acting chief commissioner, Feb. 2015 – Sept. 2015
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Twitter
Paolo De Buono, Rainbow #BLM, MSc, JD, OCT @misterdebuono
The Ontario Human Rights Commission released its A Disparate Impact report today, confirming the deep impact of anti-Black systemic racism in Toronto (the data is so clear!) & our need as educators to act on changing ourselves & our education systems.
Kerri L. P. @piquette_kerri
Systemic and anti-Black racism in policing exists in Ontario. Period. All emergency services should be reading the Disparate Impact to understand the scope of the issue at hand so we can take necessary action within our services to make change and advocate for our patients.
Continuing to monitor TPS race-based data collection
Since the Toronto Police Services Board (TPSB) approved the Race-Based Data Collection, Analysis and Public Reporting Policy in 2019, the Toronto Police Service has taken several steps to advance its work on race-based data collection.
In April 2020, the OHRC commented on this progress, stating: “the OHRC is pleased that the TPSB adopted a policy on collecting race data. This is a significant step forward in the TPSB’s efforts to identify and address systemic discrimination.” Since then, the OHRC has taken part in multiple discussions with the TPS, with particular emphasis on bolstering the depth and breadth of data collection during the next phases, consistent with some of the data-related recommendations in the OHRC’s 2019 Policy on eliminating racial profiling in law enforcement.
OHRC supports the Independent Civilian Review on Missing Persons
In January 2020, the then chief commissioner, Executive Director and staff met with Justice Gloria Epstein and Lead Counsel to provide recommendations for proceeding with the Independent Civilian Review on Missing Persons. The Missing Persons Review team spoke positively about the OHRC’s Policy on eliminating racial profiling in law enforcement and other OHRC products, saying they were of great use to the review.
The OHRC made several recommendations, including:
- Contextualize the failures of missing persons investigations as part of the broader phenomenon of under-policing
- Emphasize intersectionality and underscore the impact that intersectionality of marginalized identities has in interactions with police services
- Consider deploying the “Philadelphia Model” to allow for ongoing, external review of missing persons investigations
- Review the OHRC’s settlement agreements relating to Waterman and the bathhouse raids to determine if building on these agreements could be useful in eliminating police bias against LGBTQ2+ communities
- Consider recommending that efforts be made to de-stigmatize LGBTQ2+ identities within racialized communities
- Consider recommending that front-line service providers serve as liaisons with the police in cases of missing persons.
In August 2020, the OHRC took part in a roundtable to discuss the possible recommendations the reviewers may wish to consider making in their final report. The Executive Director provided OHRC perspectives on the need for greater accountability in policing, transforming police culture and police relations with racialized communities. The Chief Commissioner and the Executive Director met with the Missing Persons Review team on two additional occasions, to support the team’s understanding of human rights principles and remedies, as well as issues around transparency and accountability.
In April 2021, Justice Epstein released her final report, Missing and Missed. This four-volume report contains many findings and recommendations that reflect the OHRC’s input. For example, the report cited A Disparate Impact, which focused on racial profiling, and found that like Black communities, people also faced disparate levels of investigation based on their sexual orientation, and called on the Toronto Police Service to undertake an organization change project as the OHRC had recommended in 2016.
The Missing and Missed report also cited and endorsed the OHRC’s guidance on steps the TPS could take to identify and eliminate systemic bias in the services it provides. As well, the report calls on the TPS to apply a human rights lens in its investigations, and look at how human rights characteristics intersect to create unique experiences of discrimination, as was the case where most of the victims in the inquiry were gay and racialized.
Missing and Missed applied various OHRC policies, including the Policy on discrimination and harassment because of sexual orientation, the Policy on preventing discrimination because of gender identity and gender expression, and the Policy on preventing discrimination based on mental health disabilities and addictions. As well, the reviewers also incorporated several cases the OHRC was involved in at the Human Rights Tribunal of Ontario involving sexual orientation and gender identity.
Missing and Missed acknowledged the OHRC as an expert in recognizing and addressing issues of systemic and overt discrimination. It also:
- Recommended that the TPS work closely with the OHRC on its equity plan
- Highlighted the OHRC‘s analysis of structural impunity for systemic racism in the absence of monitoring court and tribunal findings of discrimination
- Identified the use of settlement agreements under the Human Rights Code as a tool for reform.
In the next few months, the OHRC will more thoroughly review Missing and Missed, to identify areas it can follow up on with the TPS to make sure it provides equitable services regardless of sexual orientation, gender identity, race, or other grounds that are protected by the Code.
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“In the early years when the Commission was first proposing adding sexual orientation to the Code in annual reports – that was very welcome news … very, very welcome news. And so each year when the Commission published its report, we would always hold it up and say, ‘It’s time, it’s time, come on politicians, it’s time to move.’”
- Rev. Dr. Brent Hawkes, OHRC 60th anniversary kick-off event
Agreement a significant step forward with Peel Regional Police
In October 2020, the OHRC, Peel Regional Police (PRP) and its Board (PRPSB) have signed a Memorandum of Understanding (MOU) committing to develop and implement legally binding remedies to identify and eliminate systemic racism in policing, promote transparency and accountability, and enhance Black, other racialized and Indigenous communities’ trust in policing throughout Peel Region.
The OHRC will provide human rights guidance to the PRP and PRPSB on initiatives to identify and eliminate systemic racism in its service delivery and employment practices. Building on the principles laid out in the OHRC’s Policy on eliminating racial profiling in law enforcement, the parties will work collaboratively to adopt holistic and binding remedies to address structural changes, the role of policing, policy and procedural changes, accountability and monitoring, as well as community calls for de-escalation and defunding.
The parties also commit to robust engagement with Black, other racialized and Indigenous communities in the Peel Region to learn from their experiences before finalizing a legally binding agreement.
Since the MOU was signed, several notable developments have taken place. The OHRC and the PRP have had in-depth discussions about proposed recommendations for identifying and addressing systemic racism. As the PRP noted in a March 2021 statement, “the mandate is to build a foundation for Peel Regional Police that encompass Strategic objectives and align with the agreed upon recommendations with the Ontario Human Rights Commission. The remedies are built on seven principles to make our Service transparent, accountable, respectful and more human than ever before.”
Among other tasks, this has entailed determining which recommendations are appropriately in-scope, a process that will pave the way for conveying the recommendations to internal stakeholders, such as the Peel Regional Police Association, and external stakeholders across Peel Region, particularly members of racialized communities.
Also, the parties have created a Human Rights Project Charter, which includes processes to track milestones in training, data collection, policy and procedure reviews; onboarding experts in data collection, crisis intervention and de-escalation, and dealing with children in crisis; and forming an Anti-Racism and Human Rights Advisory Committee comprised of highly qualified community members who will provide input on certain aspects of the project.
To further support the Human Rights Project Charter, the Peel Regional Police have retained experts to develop human rights-based data collection methods. Over the next three years, these experts will analyze and report on race-based information. This will include examining a range of police and civilian interactions, such as police stops, arrests and use of force.
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Twitter
Farah Aw-Osman @awosman
Kudos to Peel police and board! Ottawa needs similar approach to root out and dismantle systemic racism. @JimWatsonOttawa @OPSChiefSloly @OntHumanRights
Continuing to monitor body-worn cameras
Public interest in police body-worn cameras, and corresponding levels of media coverage, rose considerably in June 2020 following the police killing of George Floyd in Minneapolis, the death of Regis Korchinski-Paquet in Toronto, and the large-scale protests that occurred throughout the summer.
Some of this media coverage referred to the OHRC’s positioning on body-worn cameras. For example, a Toronto Star article published in early June, titled “Why don’t police in Toronto wear body cameras?” stated: “Multiple coroners' inquests into police-involved deaths have called for the devices and, while expressing reservations about privacy implications, the Ontario Human Rights Commission called for a study into the feasibility of equipping every officer in the province with one.”
Based on its Policy on Eliminating Racial Profiling in Law Enforcement, the OHRC is on record as supporting body-worn camera use for front-line officers throughout the province. However, this position should be understood with reference to its October 2020 letter to the Toronto Police Service and Toronto Police Services Board on their policy and procedure on body-worn cameras.
In this letter, the OHRC stated that “for body-worn cameras to support accountability for officer misconduct, procedures around their use must be robust,” and noted that without rigorous monitoring and accountability requirements, “body-worn cameras will be an expensive and perhaps ultimately worthless investment, at a time when communities are calling for defunding and drastic reductions in police budgets.”
Body worn camera implementation projects throughout the province must be situated within robust accountability and monitoring systems which include, but are not limited to:
- Criteria for when officers must record, and require officers to provide concrete, contemporaneous on-camera justifications for failing to record required events. For example, officers should begin recording at the earliest opportunity, before any contact with a member of the public, whenever that contact is for an investigative or enforcement purpose, and regardless of whether the person is within camera view, unless an exception applies
- Clear criteria for when cameras must be off, but audio stays on, such as Level 3 and Level 4 strip searches and cavity searches; and in healthcare facilities, unless an exception applies
- Clear criteria for when cameras should be off, such as at protests, unless officers are directly engaging with protestors
- Clear criteria for when recording should be stopped
- Addressing personal privacy concerns by specifically, among other things, protecting categories of vulnerable individuals (e.g., victims of sexual violence, hospitalized individuals) from being recorded without their informed consent. Privacy guidelines should be developed in consultation with the Information and Privacy Commissioner of Ontario.
The OHRC will continue to assess the implications of changing technology and the degree that body-worn cameras are implemented in ways that enhance accountability, while adhering to the Code.
Stepping up when criminal background checks discriminate
The OHRC is intervening in the cases of Josslyn Mounsey and Thairu Taban v Metrolinx and Toronto Police Services Board. The applicants in these cases were hired by Metrolinx as dispatchers, but were later dismissed because they did not pass a criminal background check conducted by the Toronto Police Service. Mounsey and Taban, who are Black and who do not have criminal records, allege that they were discriminated against based on their race, contrary to the Code. The OHRC has intervened in the proceedings with the consent of the applicants, to highlight the disproportionate and adverse effects that criminal background checks can have on over-policed communities, and the Code obligations that result in the employment context.
Preventing discrimination through police record checks
In March 2021, the OHRC wrote to Ontario’s Solicitor General about proposed changes to the Police Record Checks Reform Act (PCRA). Police databases contain a wide range of information that, when disclosed, may result in people facing unnecessary barriers to employment, volunteering, entering education or a profession, or accessing programs or services. The OHRC welcomed the Ministry’s desire to narrow the scope of exemptions from the PRCRA regime.
Given the disproportionate and unfair impact that police record checks have on vulnerable groups, the OHRC urged Ontario to adopt regulations that limit the scope of any exemption to the PRCRA only in narrow, necessary circumstances. The OHRC further urged Ontario to maintain the Act’s procedural protections for all police record checks, including exempted checks.
For many years, the OHRC has worked to highlight the unfair impact that police record checks have on vulnerable groups. OHRC consultations, public inquiries, research and litigation have highlighted concerns about the disproportionate impact of police record checks on access to employment, housing, education, volunteer activities and other services for people with mental health disabilities and substance addictions, Indigenous people, and Black and other racialized communities and other vulnerable groups. These groups experience systemic discrimination that results in disproportionate contact with the criminal justice system.
Because of the potential for adverse discrimination, the OHRC maintains its long-held position that organizations requesting and using police record checks, and organizations providing the information, must have a bona fide and reasonable basis within the meaning of the Code for doing so. We recommended:
- Any exemptions be narrowly tailored to make sure that non-criminal information is only released when access to a specific class of information is needed for safety or security concerns related to a specific occupation. Broad, sector-wide exemptions should be rejected. To decide if there is a bona fide need for information beyond what the PRCRA covers, both the specific occupation(s) and the specific non-criminal information being exempted should be clearly identified and assessed
- Street check information obtained before to Regulation 58/16 under the PRCRA comes into force not be used or disclosed in any circumstances relating to the PRCRA
- Even where an exemption is in place, the procedural protections available under the PRCRA should apply, including the manner and procedures for requesting, conducting and disclosing police record checks, the consent, correction of record information, and reconsideration processes, and the restrictions on the use of the information, statistics and third-party agreements.
Because of the disproportionate impact of police record checks on vulnerable groups, the OHRC continues to be concerned that the PRCRA does not have provisions to make sure persons or organizations involved in requesting, disclosing or receiving information from a police record check show or confirm it is for a bona fide and reasonable purpose. The OHRC recommended that Ontario consider how the PRCRA might be used or amended to address this concern.
The OHRC also reaffirmed its long-standing call to add a new “police records” ground to the Code, defined as “charges and convictions, with or without a record suspension, and any police records, including records of a person's contact with police.” The OHRC believes this change to the Code, and its recommended changes would better balance social policy goals for public safety, crime prevention, offender rehabilitation, privacy and human rights.
OHRC takes Jahn back to the Tribunal
In August 2020, the OHRC filed a motion with the Human Rights Tribunal of Ontario (HRTO) for an order to hold Ontario accountable for failing to meet its legal obligations to keep prisoners with mental health disabilities out of segregation. This was the latest step in resolving the human rights case of Christina Jahn against Ontario’s Ministry of Community Safety and Correctional Services (MCSCS), which began in 2012.
At the time of her 2011 and 2012 incarcerations at the Ottawa-Carleton Detention Centre, Ms. Jahn was a woman living with mental illness, addictions and cancer. She alleged that she was placed in segregation for the entire period of her incarcerations (approximately 210 days), and experienced brutal and humiliating treatment because of her gender and mental health disabilities.
The OHRC intervened in the case to address the systemic issues that led to Ms. Jahn not receiving appropriate mental health services and being placed in segregation. An additional concern was the fact that women in Ontario’s correctional facilities did not have access to equitable mental health services as compared to incarcerated men.
Many steps over the years
In the ensuing years, developments included:
- A 2013 Jahn v MCSCS settlement agreement that featured a wide range of public interest remedies to address the use of segregation and treatment of prisoners, particularly women, with mental health disabilities in Ontario’s correctional facilities. Ontario also agreed to prohibit the use of segregation for any individuals with mental illness, except as a last resort
- A 2015 agreement requiring Ontario to provide individuals in segregation with an information handout about their rights
- A 2017 Contravention of Settlement Application at the HRTO, where the OHRC alleged that Ontario had failed to comply with various remedies set out the earlier agreements, including not meeting its binding commitments to prohibit the use of segregation for people with mental health disabilities, provide mental health screening and services, and accurately document, review and report on the use of segregation
- A 2018 binding HRTO Consent Order requiring Ontario to comply with the original Jahn public interest remedies and imposing a host of additional measures to ensure effective implementation, including appointing Justice David Cole as an Independent Reviewer to monitor Ontario’s compliance
- The April 2020 release of Justice Cole’s Final Report, which found that Ontario had still not complied with earlier agreements and orders. Justice Cole made several detailed recommendations, including with respect to human rights data and compliance.
The current motion
Following the Independent Reviewer’s report finding that Ontario is still not in compliance, the OHRC filed a motion with the HRTO setting out that Ontario failed to:
- Ensure that people with mental health disabilities are only placed in segregation as a last resort
- Conduct adequate mental health screening and reassessment to properly identify people with mental health disabilities in its care
- Implement a clear definition of segregation based on the internationally-accepted standard of being isolated in a cell for up to 22 hours per day
- Implement a system to accurately track segregation placements
- Comply with requirements to conduct internal segregation reviews to make sure that people with mental health disabilities are only placed in segregation as a last resort
- Develop care plans to provide individualized care to people with mental illness.
The OHRC is asking the HRTO to order a full prohibition on segregation for anyone with a mental health disability, a strict limit on any segregation placement beyond 15 continuous days and 60 total days in a year, and the creation of an independent monitor role to provide oversight of Ontario’s correctional system.
The OHRC is concerned that nearly seven years have passed since the first Jahn settlement, and several years since an extensive independent review was completed, but Ontario is still in breach of its legal obligations, leading to very little change for prisoners with mental health disabilities in Ontario correctional facilities. The OHRC is taking this legal step to make sure that no prisoner is subjected to the unconstitutional harms caused by solitary confinement, that prisoners with mental health disabilities receive the care they require, and that the government is held accountable for meeting its legal obligations to protect people with mental health disabilities in Ontario’s prisons.
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Francis shifts the bar for segregation in Ontario
After decisions in Francis v Ontario from the Ontario Superior Court and Court of Appeal for Ontario this past year, the law in Ontario is now clear: using segregation for any prisoner for longer than 15 days – or for any prisoner with serious mental illness at all – is cruel and unusual treatment, contrary to the Canadian Charter of Rights and Freedoms.
Francis was a class action case about two groups of people who were put in segregation in Ontario’s prisons from April 2015 to September 2018:
- People who were in segregation for more than 15 days (prolonged segregation)
- Anyone with a serious mental illness who was put in segregation at all.
These groups argued that this had breached their s. 7 (life, liberty and security of the person) and s. 12 (cruel and unusual punishment) Charter rights and sought damages.
In April 2020, the Ontario Superior Court found that Ontario had violated the prisoners’ Charter rights, and awarded the class $30 million in Charter damages. In reaching its decision, the Court relied on, among other things, the OHRC’s extensive efforts to get Ontario to change its segregation practices and Ontario’s failure to implement the Jahn settlement.
Ontario appealed the decision, and the OHRC was granted leave to intervene in the appeal, which was heard in December 2020. In its intervention, the OHRC argued that Charter damages were an appropriate remedy in this case, and that such an award would not interfere with the “good governance” of Ontario’s prisons. The OHRC's submissions also highlighted our extensive work in this area, particularly in the Jahn case.
In March 2021, the Court of Appeal dismissed the province’s appeal, confirming that:
- Placing prisoners with serious mental Illness in segregation violated the Charter sections 7 (life, liberty and security of the person) and 12 (cruel and unusual punishment) rights of class members
- Placing any prisoner in segregation for more than 15 consecutive days violated sections 7 and 12 of the Charter
- The absence of a timely independent review process for segregation placements violated class members section 7 Charter rights.
The Court of Appeal upheld the lower court’s decision to award $30 million in Charter damages, and also upheld the lower court’s finding that the claims in negligence were not barred by the Crown Liability and Proceedings Act, 2019.
The Court of Appeal’s reasons for rejecting Ontario’s appeal were consistent with the OHRC’s submissions, particularly on the Charter damages claim. Also, in setting out the context for the appeal, the Court recognized that while Ontario had made some changes to the segregation system as a result of the public interest remedies set out in the Jahn consent order, the Independent Expert appointed through that process had documented Ontario’s failure to comply with many of its own policies.
Francis is a pivotal decision about Ontario’s segregation practices, and shows that the government must act now to prevent the unconstitutional treatment of prisoners – and to prevent harm before it occurs.
The OHRC’s work contributed to this important development, and we will push for it to translate to real change on the ground
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