August 18, 2020
The Ontario Human Rights Commission (OHRC) is providing this written deputation to the Toronto Police Services Board (TPSB) in response to its August 11, 2020, report on Police Reform in Toronto: Systemic Racism, Alternative Community Safety and Crisis Response Models and Building New Confidence in Public Safety and the recommendations it contains (Police Reform Report), which are being considered for approval at its August 18, 2019, meeting.
II. Executive summary
Action plans without accountability and enforceability are not meaningful. The OHRC is concerned that the Police Reform Report and its recommendations will amount to mere lip service – another report on the shelf that fails to result in substantive change.
As it stands, the OHRC cannot support this report and its recommendations, due to both procedural and substantive deficiencies.
Procedurally, the Police Reform Report falls far short of the OHRC’s Call to Action in A Disparate Impact to create a process with Black communities and the OHRC to establish legally-binding remedies to address and eliminate systemic racism in the TPS. Instead, the report in large part provides non-binding directions to police staff to consider additional reforms.
Moreover, providing this report with 81 recommendations to the public and the OHRC with only one week to review, analyze and comment belies general principles of due process, is an insult to the OHRC’s call for a consultative and transparent process, and raises serious concerns about whether the TPSB is working in good faith to eliminate systemic racism in the TPS. Given the OHRC’s engagement with the TPSB during the inquiry, the recommendations could have been shared at an earlier point, rather than the day after the OHRC released A Disparate Impact. This would have provided the OHRC with a fair opportunity to share its human rights expertise and perspectives informed by consultations with Black communities.
In substance, there are important gaps with the recommendations in the Police Reform Report. These gaps relate to investigating and addressing officer misconduct, as well as key policy prescriptions on use of force and laying of charges, among others. Further, Black communities have clearly and repeatedly called for defunding, decriminalization and demilitarization. The OHRC is sensitive to calls from Black communities for the nature and scope of policing to undergo a systemic transformation, and strongly supports this transformation. The OHRC agrees it is time to reimagine the role of the police. Communities’ demands must be heard, considered, and substantively addressed by the TPSB.
For these reasons, as well as the key gaps we have identified within the 81 recommendations, the OHRC cannot support the Police Reform Report. While the report may serve as an initial step, there must be full and focused consultations with Black communities and organizations as well as the OHRC, towards establishing legally binding remedies that will address the procedural and substantive deficiencies in the Police Reform Report.
As the TPSB is well aware, the OHRC is currently conducting an inquiry into racial profiling and racial discrimination of Black persons by the TPS pursuant to section 31 of the Ontario Human Rights Code. This inquiry was launched in 2017 and builds on decades of work to end prejudice in policing.
A. A Collective Impact
The OHRC released its first interim inquiry report, A Collective Impact, in December 2018.
A Collective Impact included expert analysis by criminologist Dr. Scot Wortley of data obtained by the OHRC from the Special Investigations Unit. Among other things, Dr. Wortley found that between 2013 and 2017, a Black person was nearly 20 times more likely than a White person to be a victim of a fatal shooting by the Toronto Police Service.
A Collective Impact also included a case law review that identified a number of court and tribunal findings of racial discrimination by the Toronto Police Service; and a review of SIU director reports that raised disconcerting themes, such as illegal policing stops and/or detentions at the beginning of civilian encounters, inappropriate or unjustified searches, meritless charges and a lack of cooperation by police during SIU investigations.
Finally, A Collective Impact included the results of the OHRC’s broad consultation with 130 members of Black communities across Toronto. It documented Black communities’ fear, trauma, expectations of negative treatment and lack of trust of the police.
The findings in A Collective Impact were very troubling and continue to garner public attention to this day. The Supreme Court of Canada recognized A Collective Impact as credible and highly authoritative.
B. A Disparate Impact
Just last week, on August 10, 2020, the OHRC released A Disparate Impact, which includes two new reports by Dr. Wortley, that analyze racial disparities in arrests, charges and use of force by the TPS.
The reports’ results were highly disturbing and confirm what Black communities have said for decades – that Black people bear a disproportionate burden of law enforcement. The reports conclusively showed that:
- Black people were more likely to be charged, over-charged and arrested by the Toronto police
- Black people were more likely to be struck, shot or killed by the Toronto police.
The first report examined racial disparities in charges and arrests between 2013 and 2017. Focusing on offences that involve significant police discretion, it examined how race can affect charge, arrest and post-arrest decisions. The report found that Black people were grossly over-represented in discretionary, lower-level charges. For example, although Black people make up 8.8% of the population, they represented almost 38% of people involved in cannabis charges. This was despite conviction rates and many studies which show that Black people use cannabis at similar rates to White people. White people and people from other racialized groups were under-represented.
The second report provided a deeper analysis of the 2013 to 2017 data from the Special Investigations Unit that the OHRC analyzed in the first interim report of our inquiry, A Collective Impact, as well as an analysis of lower-level use of force between 2016 and 2017. Lower-level use of force is force that may not reach the threshold of serious injury, death or allegations of sexual assault required to engage the SIU’s mandate, but may still result in serious physical and emotional impacts.
This report found that Black people were significantly over-represented in SIU use of force cases and grossly over-represented in lower-level use of force cases that resulted in physical injury (such as bruises and lacerations) but did not rise to the level of the SIU threshold.
This over-representation could not 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). A significantly larger percentage of more serious and lower-level use of force cases involving White people resulted from reactive policing.
These findings demonstrated the urgent need for the TPSB, TPS, the City of Toronto, and Ontario to concretely address racial inequities, to regain community trust and to institute meaningful and binding changes that will transform policing and end suffering.
As a result, A Disparate Impact includes two calls to action. First, the OHRC calls on the TPSB, TPS, and City of Toronto to formally establish a process with Black communities and organizations and the OHRC to adopt legally binding remedies that would result in fundamental shifts in the practices and culture of policing and eliminate systemic racism and anti-Black racial bias in policing. Second, the OHRC calls on the government of Ontario to establish a legislative and regulatory framework to directly address systemic racism and anti-Black racial bias in policing.
However, on the day after the release of A Disparate Impact, the TPSB decided to release the Police Reform Report without any advance notice and decidedly without taking up the OHRC’s calls to action. The Police Reform Report and its recommendations form the subject of this deputation.
IV. Procedural failures in the TPSB’s approach
A. The reforms must be independently monitored and legally enforceable
The Police Reform Report fails to establish legally binding remedies and falls short of the OHRC’s Calls to Action. To avoid the uncertainty, procrastination or lack of action that has followed previous reports, the current recommendations must be situated within a legally binding framework to combat indecision and inertia. The unfair treatment of Black communities has been studied and documented ad nauseam without meaningful change due to the perpetual absence of accountability measures. This has contributed to the lack of trust between the community and oversight bodies, such as the TPSB, and report fatigue in society in general.
Fundamentally, and regrettably, history shows that the TPS and TPSB, as organizations, have been unsuccessful at, and some believe cannot be trusted to, implement a process for change unless there are clear deliverables, backed up by the force of law. Reforms must be independently monitored and legally binding because:
- There is structural impunity for systemic racism within the TPS and TPSB
- Substantive change has not occurred in the past
- Objectively monitored and measurable legally enforceable remedies produce results.
The OHRC’s Calls to Action underscore that the TPSB’s proposals and promises are inadequate to ensure that meaningful change is initiated and real reform occurs. Legally binding remedies are necessary to address and eliminate systemic racism in the TPS. The OHRC and racialized communities have seen how past recommendations and policies of the TPSB can appear transformative on paper, and yet fail to yield meaningful, tangible results.
Sadly, despite many decisions from courts and the Human Rights Tribunal of Ontario (HRTO), extensive reports from the OHRC and others, and previous commitments for change from the TPS and TPSB, substantive change has simply failed to occur. Serious and alarming racial disparities continue to persist.
Systemic anti-Black racism and broken trust between Black communities and the Toronto Police Service will continue unless there is robust accountability. Reforms must be independently monitored and legally enforceable.
The OHRC suggests that the legally binding process could occur pursuant to a consent order filed with the Human Rights Tribunal of Ontario, to mirror the consent decree model that has been successfully deployed in many large municipalities in the United States.
B. Structural impunity for systemic racism within the TPS and TPSB
Information gathered by the OHRC in its inquiry so far suggests there has been a fundamental lack of effective monitoring and accountability for anti-Black racism, racial profiling and racial discrimination of Black people by the TPS and TPSB. For example:
- Findings of the courts and HRTO that Black people were racially profiled or racially discriminated against were not effectively addressed by the TPS or TPSB
- The TPSB failed to ensure that the Chief of Police complied with its Race and Ethnocultural Equity Policy
- The TPS refused to implement the TPSB’s 2014 Community Contacts Policy.
i. Findings of the HRTO or courts that Black people were racially profiled or racial discriminated against were not treated seriously by the TPS or TPSB
For example, there are many HRTO and court decisions between 2009 and 2017 that found that Black people were victims of racial profiling or racial discrimination by TPS officers:
- Abbott v Toronto Police Services Board, 2009 HRTO 1909
- Maynard v Toronto Police Services Board, 2012 HRTO 1220
- Shaw v Phipps, 2012 ONCA 155
- R v Ahmed,  OJ No 5092 (SCJ)
- R v K(A), 2014 ONCJ 374
- R v Smith, 2015 ONSC 3548
- R v Thompson,  O.J. No. 2118 (Ont CJ)
- Elmardy v Toronto Police Services Board, 2017 ONSC 2074.
However, these cases were not treated seriously by the TPS or TPSB. The TPS advised that none of these decisions resulted in an officer being brought before the TPS Disciplinary Tribunal. Accordingly, internal complaints were either not filed against the officers, dismissed after investigation, or deemed to be “not of a serious nature” and resolved informally by the TPS – all of which represent a failure to hold officers accountable for anti-Black racism.
For example, in the civil case of Elmardy v Toronto Police Services Board, the Divisional Court concluded that a Black man was the victim of racial discrimination when he was on his way back from prayers in 2011. He was stopped by TPS officers, punched twice in the face, searched, handcuffed and left injured out in the cold. The police officers were also found to have lied when the trial judge questioned them about their behavior. However, it appears there were no serious disciplinary consequences; there were no Notices of Hearing or TPS Disciplinary Tribunal decisions regarding the officers’ conduct.
Furthermore, the TPSB has not issued any policy guidance in this area. For example, the TPSB did not establish guidelines on how internal complaints in these circumstances should be effectively triggered and administered. In the absence of requisite protocols, meaningful reform and remedies continue to be denied to Black communities, resulting in little faith in the TPS and TPSB’s ability to address misconduct and racial bias.
ii. The TPSB failed to ensure that the Chief of Police complied with its Race and Ethnocultural Equity Policy
The TPSB’s Race and Ethnocultural Equity Policy (EEP) was approved in 2006 and amended in 2010. The EEP states that discriminatory treatment of members of the public based on race, among other grounds, will not be tolerated. It requires the Chief to develop procedures to implement the policy through procedures and to report to the TPSB annually on the “effectiveness and impact of the implementation of this policy. Such reporting should include any procedures developed, an assessment of the impact and effectiveness of such procedures on practices throughout the organization, and should provide details of mechanisms to ensure accountability by all levels of management.”
However, notwithstanding the requirements set out in the EEP, the TPS developed no specific procedures to address racial discrimination in the interactions described in the EEP (e.g. stops and searches). Furthermore, the TPS only prepared and presented four annual reports under the EEP to the TPSB (2011, 2012, 2014 and 2015) in the nine years (2011 to 2019) since the amended EEP was passed.
None of the annual reports included “an assessment of the impact and effectiveness of such procedures on practices throughout the organization,” or “provide[d] details of mechanisms to ensure accountability by all levels of management” as required under the EEP. Finally, and remarkably, in the four annual reports, the TPS listed the Toronto Anti-Violence Intervention Strategy (TAVIS) as one the initiatives that “enhance race and ethnocultural equity.” This flagrantly ignores widespread criticism of TAVIS for its use of carding and aggressive tactics, which increased tensions between police and Black communities. TAVIS was disbanded in 2017.
iii. The TPS refused to implement the TPSB’s 2014 Community Contacts Policy
Finally, the TPS refused to implement the TPSB’s 2014 Policy on Community Contacts. The TPSB role is to provide independent oversight and accountability; this inherently requires the TPSB to ensure that there will be consequences if the TPS is non-compliant.
Findings related to accountability for anti-Black racism will be released in the OHRC’s final report on its inquiry. However, the above clearly demonstrates the need for robust accountability. Reforms must be independently monitored and legally enforceable.
C. Substantive change has not occurred in the past
Previous TPS and TPSB anti-racism initiatives adopted with much fanfare have not resulted in any meaningful improvements for racialized communities because there was no accountability – the TPSB clearly did not feel bound to follow through on its commitments and there was no independent monitoring to hold them to account. To adopt the same approach here, as the TPSB recommends in their Police Reform Report, will not solve decades of anti-Black racism.
In A Collective Impact and A Disparate Impact, the OHRC uncovered serious racial disparities in use of force, charges and arrests that negatively affect Black communities. These disparities have persisted over time. And they persist despite many TPS and TPSB anti-racism initiatives and reports, including:
- The Human Rights Project Charter
- The CAPP Report
- The Intercultural Development Inventory (IDI) Assessment Project
- The PACER Report
- The Doob and Gardner Report
- TPSB policies, including the EEP and Human Right Policy.
D. Independently monitored and legally enforceable remedies, like consent decrees, produce results
Consent decrees are legally-binding agreements between police departments and the U.S. Department of Justice (DOJ) to address findings of discriminatory or improper policing. Consent decrees have been used with over a dozen police services in the U.S., including in Ferguson, Baltimore and Cleveland, to address the disparate impact of policing on Black communities following high-profile tragedies, such as the death of Freddie Gray.
The American experience has confirmed that the most effective consent decrees contemplate and include ongoing oversight through a court-appointed monitor. The decrees are typically negotiated with input from the community.
Research has found that consent decrees with independent monitoring are an effective measure to ensure reforms to policing. Consent decrees have been found to reduce civilian fatalities caused by officers. Police departments that have been investigated by the DOJ were responsible for 27% fewer civilian fatalities. After consent decrees were implemented, the reduction in fatalities increased to 29%. These are not simply statistics; they are lives – and most often, Black lives.
E. The reforms must be developed through robust and inclusive engagement
Providing such a lengthy report with 81 recommendations to the public with less than one week to review, analyze and comment does a disservice to this process and the TPSB’s stated goals of eliminating systemic racism in the TPS.
Black communities have been victimized by policing and over-policing in Toronto for decades. Black communities must be involved at every step of the solution, including prioritizing which recommendations need immediate attention through formally binding mechanisms and measurable benchmarks. While it is helpful that the TPSB hosted a number of town hall meetings, where Black people and communities were able to share their perspectives based on their lived experiences, this is not a substitute for focused consultation on the merits, efficacy and timelines of the 81 recommendations that form the subject matter of this deputation.
F. The reforms must include measurable outcomes and timelines
The overall effectiveness of the report is also limited by the absence of timelines and measurable outcomes in key areas. A handful of recommendations in the Police Reform Report include timelines, but the vast majority do not stipulate the necessary conditions and criteria for achieving tangible deliverables with respect to reform and post-implementation assessment. For example, the report recommends that the TPSB Executive Director, the City Manager and other stakeholders identify categories of calls that might be addressed by a non-police response. No process is set for consultation, no timelines are attached to the goal and no steps are delineated to assess whether the identified categories will achieve measurable outcomes. The Police Reform Report also “Direct(s) the Chief of Police to work with the Executive Director and the City Manager to identify opportunities for the development of alternative crime prevention and reduction initiatives that could ultimately reduce the demand for reactive police services across Toronto.” In addition to being a vague and abstract objective, no timelines, no consultation or measurable outcomes are attached to this recommendation.
The OHRC believes that these objectives and others must be articulated with measurable outcomes to ensure that the public can readily track TPS and TPSB’s progress towards these goals.
V. Substantive deficiencies in the Police Reform Report
Addressing and eliminating systemic racism in policing requires holistic, concrete action with measurable results. This framework for addressing racial discrimination must include organizational change, changes in policies, procedures, training, accountability measures, and shift in culture.
While the Police Reform Report includes many general recommendations that seem positive, it is well understood that “the devil is often in the details” and many of the recommendations fail to commit the Board to the specific details and concrete action that will be necessary to ensure that true institutional change is achieved.
While the one-week review period has not allowed for a comprehensive analysis of the recommendations, some key gaps in the report’s recommendations were easily discernable and are highlighted below.
A. Investigating and disciplining officers
Officers who engage in conduct that is consistent with racial profiling or racial discrimination must be held accountable for their actions. For too long, there has been an absence of meaningful accountability for officers who strike, ground and shoot Black people. This void has sparked hurt, outrage and protests in Toronto and across the United States. It is important to note that the protests following the deaths of George Floyd in the Minneapolis and Regis Korchinski-Paquet in Toronto, were just as much about the absence of accountability, as they were about the use of force. The omission of accountability renders the pledges to promoting equitable policing empty.
i. Ensuring investigations and discipline for racial bias
Given concerns about impunity for systemic racism, the TPSB must take strong measures to ensure that officers who engage in conduct consistent with racial profiling or discrimination face discipline. The TPSB must act decisively to tighten its oversight measures and disciplinary procedures. The TPSB should direct the Chief of Police to:
- Consider officer behaviour found by a decision of the HRTO or the courts to be consistent with racial discrimination as a negative factor in promotion decisions of their supervisors
- Proactively investigate the race of the alleged victim in allegations of officer misconduct
- Proactively investigate (and provide officers with notice of such investigation) potential racial profiling or discrimination in allegations of officer misconduct against racialized individuals, even where claims of racial profiling or discrimination are not explicitly raised by a complainant, witness, SIU Director, OIPRD, or any legal decision involving a Charter breach by the TPS
- Investigate each allegation of officer misconduct raised by the SIU Director in letters to the Chief
- Establish a process by which findings or comments in any decision of the HRTO or courts regarding conduct consistent with racial profiling or discrimination is automatically substantiated, not deemed to be “not of a serious nature” under the Police Services Act and leads to a notice of hearing being released, even if the officer consents to a penalty
- Ensure that all Professional Standards investigators are trained to identify human rights concerns and make investigatory findings regarding violations of the Human Rights Code, including potential racial profiling/discrimination
- Establish a process by which misconduct flagged by the SIU or otherwise identified by TPS as consistent with racial profiling or discrimination is investigated, and require the Chief to report publicly to the Board on the findings and outcome of the investigation, subject to the confidentiality provisions of the Police Services Act
- Make performance criteria – for officers and supervisors – publicly available online along with any quantitative measures associated with performance reviews.
ii. Early Intervention System
An Early Intervention System (EIS) that captures and tracks bias and racial profiling must be implemented as part of the proposed accountability reforms. An effective EIS system must use race-based data on stops, searches, charges, arrests, and use of force incidents to alert supervisory officers when service members have disproportionately policed a racial group. This data can also be used to measure the outcomes at the unit or division level.
When implemented correctly, these systems have the potential to change outcomes. For example, media reports have revealed that the officer who killed George Floyd had a history of complaints, and that the Minneapolis police department failed to appropriately implement an EIS system in accordance with previous recommendations. A properly functioning EIS system may have prevented this tragedy.
In 2013, the Police and Community Engagement Review Report (PACER Report) recommended establishing an early warning system related to bias and racial profiling. However, the TPS failed to implement the recommended system in a way that effectively incorporated race-based data on stops, searches, charges, arrests or use of force. Unfortunately, the current recommendations fail to address this shortcoming.
B. Policy prescriptions
Clear policy prescriptions are necessary to address the alarming disparities identified in A Disparate Impact and the lived experiences of Black communities in Toronto. The Police Reform Report fails to provide important measures to address systemic use of force and charging policies and practices.
i. Use of force
The OHRC’s Policy on eliminating racial profiling in law enforcement (Policy on racial profiling) provides clear policy guidance on use of force policies, and these should be adopted and implemented immediately. The policy also provides clear guidance on training, data collection and monitoring that should have been adopted in the Police Reform Report.
The OHRC’s Policy on Racial Profiling also recommends that police services review these models to place an emphasis on de-escalation.
The OHRC urges the TPS and TPSB to consider the following recommendations from the Policy on Racial Profiling:
- Require de-escalation prior to any use of force, wherever possible, and mandate specific de-escalation alternatives that should be considered as priority options prior to use of force
- Train officers on how to recognize and deal with fears, anxieties or biases that may contribute to their use of force decisions
- Train officers on how to tolerate verbal abuse and disrespect (including allegations of racism or bias) from civilians without resorting to physical force
- Develop a system of zero tolerance for use of force as punishment or retaliation rather than as a necessary and proportionate response to counter a threat
- Supervisors should thoroughly review use of force incidents (including all of the data and any video from body-worn or in-car cameras) immediately after the incident takes place, to determine if there were credible non-discriminatory explanations for use of force
- A reliable and accurate electronic system to track all data about use of force.
A Disparate Impact found that Black people were grossly over-represented in the charges examined by the OHRC as part of its inquiry. However, regardless of suspect race, almost 60% of all charges ended in a non-conviction. In addition, cases involving White suspects were slightly more likely to end in conviction (22.4%) than cases involving Black (18.1%) or other minority suspects (18.3%). These findings are consistent with systemic and anti-Black racism.
The TPSB should direct the Chief of Police to amend TPS procedures on laying a charge to require officers to approach all interactions with Black, Indigenous and other racialized persons, including youth and adults, in a way that takes into account histories of being over-policed, and use alternatives to charges and arrests, where appropriate. This includes and builds on the requirement from the Youth Criminal Justice Act that police officers consider the use of extrajudicial measures, such as informal warnings, police cautions, or referrals to community resources before deciding to charge a young person.
C. Community demands for defunding, demilitarization and decriminalization
The Police Reform Report notes that defunding was the most commonly suggested solution to the problems facing policing. The OHRC is encouraged by the Board’s steps towards a budget transparency policy and the expansion of the MCIT program without additional funding from the budget in 2020 and 2021. The OHRC views the renewed focus on the TPS budget as an opportunity for the TPSB to address the disparate impact of police services on Black communities through allocating and re-allocating resources. Community perspectives and demands on these issues should be heard. The TPSB must commit to investments in promoting and ensuring community well-being and safety through equitable policing practices (for example, to better protect and serve racialized communities and people with disabilities who historically have been the subject of unfair disparities in policing services).
D. Acknowledgement and apology for Toronto’s painful history of systemic racism
Anti-Black racism is woven into the fabric of Canadian institutions including policing. The Supreme Court of Canada has repeatedly recognized the presence of anti-Black racism in society and the criminal justice system. In addition, courts and tribunals have consistently recognized that racial profiling is a systemic problem in policing, and is not the result of individual “bad apples” within police forces. In addition to a multitude of court decisions, several reports have commented on the disproportionate burden that systemic racism has placed on Black communities, including the 1995 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, the 2008 Review of the Roots of Youth Violence Report, and the 2017 report of the Ontario-wide Independent Police Oversight Review. The interim reports from the OHRC’s inquiry into racial profiling and racial discrimination of Black persons by TPS provide further empirical support for this disproportionate burden. For example, A Disparate Impact finds that Black people were more likely to be fatally shot by Toronto police compared to White people, who were more likely to survive being shot by Toronto police. Black people were also significantly over-represented in SIU investigations that took place within both low-crime and high-crime communities. While Dr. Wortley’s analysis in A Disparate Impact focused on recent data, we cannot wilfully ignore the reality that these outcomes have been part of the lived reality for the Black community for decades.
TPS must formally acknowledge this history and apologize for the systemic anti-Black racism that exists within its structures. Furthermore, the TPSB should engage with Black communities on the form and content of this formal acknowledgment and take meaningful steps to provide redress for the harm they have caused.
VI. Advocating for legislative change with the Province
There is much that the TPSB and TPS can do immediately to address and eliminate systemic racism in policing, such as advocating for a coordinated, province-wide approach and measures, including that the Ontario government institute legislative and regulatory change to better address racial discrimination. While the Police Reform
Report calls for legislative and regulatory change to expand the availability of suspensions without pay, this is not enough. The TPSB, TPS and City of Toronto must call on the Province to:
A. Implement a Crown pre-charge screening process to address over-charging and racial profiling
This would require amending the Police Services Act and/or the Community Safety and Policing Act, 2019, as well as making related changes to the Crown Prosecution Manual to allow the Crown to lay charges, not police. This is particularly important because of the OHRC’s findings regarding over-charging of Black people by the TPS. Notably, the OHRC found that only 20% of all charges analyzed, regardless of race, resulted in a conviction, and that charges against Black people were more likely to be withdrawn and less likely to result in a conviction than White people.
The OHRC’s Policy on Racial Profiling, which was released in September 2019, recommends that police services “work with government to implement a Crown pre-charge screening process to address overcharging and racial profiling.” While the TPS has explored limited charge screening projects, there is no indication in the Police Reform Report that projects of this nature will be expanded to all courthouses or police divisions, or that the TPSB, TPS and City of Toronto are prepared to call on the Province for a pre-charge screening process.
B. Amend the Police Services Act and/or the Community Safety and Policing Act, 2019, so that there is greater transparency regarding police discipline
The Police Services Act’s current confidentiality provisions mean that the public does not know when and whether an officer was subject to some form of discipline for engaging in racial profiling, racial discrimination or other police misconduct. Only decisions from police service disciplinary tribunals are not confidential.
C. Make legislative or regulatory changes to ensure that court or tribunal findings of discrimination or other Human Rights Code violations by police officers are appropriately investigated and addressed as potential misconduct
The public’s confidence in the police is gravely diminished when public findings of discriminatory or other Code-violating conduct by a police officer do not result in any consequences for the officer in question. The law must ensure that such findings by courts and human rights tribunals result in appropriate discipline.
D. Amend the Police Services Act and/or the Community Safety and Policing Act, 2019 so that there is independent investigation of police complaints
In consulting with Black, Indigenous and other racialized communities, the OHRC has found that there is a deep distrust of the current public complaints process. In particular, there is a clear apprehension of bias where police officers of the same service are tasked with investigating the conduct of their fellow officers. These concerns were echoed and confirmed by the Honourable Justice Michael Tulloch in his Report of the Independent Police Oversight Review. Currently, most public complaints in Ontario about municipal and provincial police officer conduct are not independently investigated.
In 2018 – 2019, 90% of public complaints were investigated by the same police services that the complaints were about. The changes to the police discipline process anticipated by the Community Safety and Policing Act, 2019, (which is still not in force) are insufficient to address this problem. The Province should mandate that all investigations and adjudications of police misconduct are carried out by an independent body, and that misconduct be determined on the civil standard of a balance of probabilities.
At its June 29 and 30, 2020, meeting, Toronto City Council formally requested that the Province of Ontario amend the Police Services Act and the Community Safety and Policing Act, 2019 to require that complaints that allege a police officer’s serious misconduct be investigated by the Province’s independent police complaints agency (currently, the Office of the Independent Police Review Director) and not any police service’s professional standards unit. The OHRC supports that request, and the TPSB should expressly do so as well.
E. Adopt and implement all appropriate standards, guidelines, policies and strict directives to address and end racial profiling and racial discrimination in policing
These guidelines should include, but are not limited to:
- A clear definition of racial profiling that is consistent with the OHRC’s definition in its Policy on eliminating racial profiling in law enforcement
- Amend Ontario Regulation 58/16, Collection of Identifying Information in Certain Circumstances to provide criteria for when an officer may approach an individual in a non-arrest scenario, and criteria for what may not form a basis for an officer approach
- An appropriate framework for rights notification
- A prohibition on using race in suspect, victim or witness selection, unless the police are dealing with a sufficiently specific description.
Racial profiling is a systemic problem in policing. It has a profound collective and disparate impact on Black people, Indigenous peoples, and other racialized groups. Racial profiling occurs in a wide variety of police interactions, including traffic stops, searches, DNA sampling, arrests, and use of force incidents. Addressing racial profiling requires a comprehensive approach from the Province that provides specific direction to officers to ensure that discriminatory conduct is prevented.
A Disparate Impact shed light on TPS’s uneven stop and question practices. The data found that Black persons were over-represented in out-of-sight driving offences, which typically arise after the race of the driver is observed or the vehicle is stopped. In addition, over a quarter of all SIU cases involving Black people resulted from proactive police stops, compared to only 11.1% of cases involving White people. By contrast, 59.3% of cases involving White people resulted from a civilian call for service, compared to only 46.8% of cases involving Black people. This data is consistent with systemic anti-Black racism. To address this concern, TPS and the TPSB must limit the opportunity for officers to engage in discretionary stops. Legislative responses such as the street check regulations, simply do not go far enough. TPS and TPB must advocate for the elimination of street checks at the provincial level and amend internal directives and procedures accordingly.
F. Amend the provincial Use of Force model so that officers are required to use de-escalation techniques and tactics, whenever possible, before resorting to use of force
In A Collective Impact, the OHRC found that between 2013 and 2017, a Black person was nearly 20 times more likely than a White person to be a victim of a fatal shooting by the Toronto Police Service. In A Disparate Impact, the OHRC found that the likelihood of a Black person being shot by police in Toronto was just as high as for a Black person in the average city in the United States. These alarming findings demonstrate the need for stringent use of force policies, to dramatically curtail officers’ use of force options.
The provincial Use of Force model should:
- 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 use of force
- Provide that if an officer engages with a person who is not carrying a lethal weapon/firearm, then that officer is prohibited from using a lethal force/firearm against the person (except for instances where the suspect is causing serious harm to an individual or officer)
- Prohibit officers from shooting at persons unless they are armed with a firearm or are using deadly force against someone
- Prohibit the use of chokeholds and strangleholds (including carotid restraints)
- Require officers to give a verbal warning, when possible, before using deadly force
- Require officers to exhaust all other reasonable alternatives before resorting to using deadly force
- Require officers to intervene to stop another officer from using excessive force
- Require officers to report both use of force and threats/attempted use of force (for example, when an officer handler exercises discretion to deploy a police service dog when stopping a member of the public)
- Ensure that all patrol cars are equipped with less-lethal weapons that can be used in place of firearms and that all officers are trained in the use of such weapons along with defensive equipment such as shields and helmets.
G. Amend s. 17 of the Mental Health Act to facilitate non-police responses to issues related to mental health, addictions or homelessness
There are clear and significant intersections between race and mental health. We are deeply concerned when a police response to a 911 call for help because someone is distraught results in death, as was the recent case with Regis Korchinski-Paquet. A non-police response to distress calls related to mental health, addictions or homelessness is necessary. Provincial legislation must facilitate and allow for this transition away from a policing model of crisis intervention to a holistic, pro-health model that de-escalates mental health or substance abuse emergencies.
The OHRC will also be engaging the Province separately to adopt more holistic changes which are necessary for eliminating prejudiced policing across the province.
The Police Reform Report falls far short of the OHRC’s Call to Action in A Disparate Impact: to create a process with Black communities and the OHRC to establish legally binding remedies to address and eliminate systemic racism in the TPS.
Ultimately, action without accountability and enforceability is not meaningful, exacerbates ongoing community mistrust over empty promises, and perpetuates suffering.
In substance, there are important gaps within the Police Reform Report and its recommendations. Ensuring individual officers are investigated and disciplined for policing with prejudice, as well as key policy prescriptions relating to use of force and charging are sorely lacking. Further, Black communities have clearly and repeatedly called for defunding, decriminalization and demilitarization. These demands cannot simply be ignored.
In process, there are serious failures in the TPSB’s approach. Providing this report with 81 recommendations to the public one day after the release of A Disparate Impact, and with one week to review, analyze and comment is an insult to this process. The TPSB’s approach, in the context of the ongoing OHRC inquiry and the OHRC’s call for consultation on binding remedies, casts serious doubt on whether the TPSB is working in good faith with the OHRC and Black communities to eliminate systemic racism in the TPS. The TPSB’s approach appears to be an exercise in damage control after another authoritative and damning report that demonstrates systemic and anti-Black racism in the TPS. Despite the foregoing, the OHRC remains committed to working towards substantive change. The OHRC will remain engaged in any process that gives the community an accessible, transparent and fair opportunity to share their perspectives on what is needed to address systemic racism in policing.
Given the TPSB’s failures in substance and process to address systemic racism through the Police Reform Report, the OHRC cannot support this report and its recommendations. The TPSB should recognize the procedural and substantive shortcomings in its launch of the Police Reform Report and take prompt steps to address these issues by consulting and working with the OHRC and Black communities and organizations to establish legally binding remedies.
 Toronto Police Services Board, Police Reform in Toronto: Systemic Racism, Alternative Community Safety and Crisis Response Models and Building New Confidence in Public Safety (2020), Race-based Data Collection, Analysis and Public Reporting (2019), Public Agenda Item #3A of the Toronto Police Services Board’s August 18, 2020 meeting, online: https://tpsb.ca/images/agendas/PUBLIC_AGENDA_Aug_18.pdf [Police Reform Report].
 Before the public release of A Disparate Impact, on July 8, 2020, the OHRC provided the TPSB and TPS with an advance copy of A Disparate Impact, with the aim of identifying any technical issues with the research team’s analysis. Further, on August 4, 2020, the OHRC provided the TPSB, TPS and Mayor Tory with the courtesy of a pre-briefing on the report’s findings and the OHRC’s Calls to Action. Although all parties spoke positively about collaborating with the OHRC to address the alarming findings in A Disparate Impact, the TPSB, TPS or Mayor Tory offered no advance notification or information on the Police Reform Report or its 81 recommendations, which was released less than one week later. This seriously calls into question whether the TPSB, TPS and Mayor Tory are acting in good faith to address systemic racism. It is disappointing that they utterly ignored their stated goals of cooperation and consultation.
 The OHRC could not identify which factors specifically applied in each case because of the confidentiality provisions of the Police Services Act RSO 1990, c P-15, s. 95; Roberts v Toronto Police Services Board, 2016 HRTO 1464.
 Elmardy v Toronto (City) Police Services Board, 2015 ONSC 2952; 2017 ONSC 2074. Please note that Mr. Elmardy was not charged with any offences.
 June 15, 2012; June 20, 2013; December 17, 2015, and August 18, 2016, TPSB meeting minutes.
 The Honourable Michael H. Tulloch, Independent Street Checks Review (2019) www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/docs/StreetChecks.pdf at 28-29.
 Transformational Task Force, The Way Forward: Modernizing Community Safety in Toronto – Interim Report (2016) at 13 www.tpsb.ca/items-of-interest/send/29-items-of-interest/518-the-way-forward-modernizing-community-safety-in-toronto
 ‘Was the Toronto police board’s carding policy ‘illegal’ as Bill Blair claimed?” The Star,
May 4, 2015
 Diversity Institute, Ryerson University, Evaluation of the Human Rights Project Charter (2014), online Toronto Police Service www.torontopolice.on.ca/publications/files/reports/hrpc_evaluation_report_2014.pdf
 Logical Outcomes, The issue has been with us for ages: A community-based assessment of police contact carding in 31 Division – Final Report (2014).
 Mitchell Hammer, Hamlin Grange and Michael Paige, “IDI Assessment Project on Building Intercultural Competence with the Toronto Police Service” (2015) – Executive Summary.
 Toronto Police Service, PACER Report (2013) www.torontopolice.on.ca/publications/files/reports/2013pacerreport.pdf
 Anthony N. Doob and Rosemary Gartner, Understanding the Impact of Police Stops, A report prepared for the Toronto Police Services Board, 17 January 2017 https://criminology.utoronto.ca/wp-content/uploads/2017/03/DoobGartnerPoliceStopsReport-17Jan2017r.pdf
 TPSB Minutes (January 21, 2015), report from Dr. Alok Mukherjee (December 29, 2014) re City Counsel Reporting Requirement – Access, Equity and Human Rights Actions Plans, Initiatives and Accomplishments, online: TPSB www.tpsb.ca/component/jdownloads/send/7-2015/174-january-21; TPSB Human Rights Policy (2015) www.tpsb.ca/policies-by-laws/board-policies/send/5-board-policies/118-human-rights
 Goh, Li Sian “Consent Decrees can reduce the number of police-related killings, but only when used alongside court-appointed monitoring.” LSE US Centre, March 18, 2020. Online: https://blogs.lse.ac.uk/usappblog/2020/03/18/consent-decrees-can-reduce-the-number-of-police-related-killings-but-only-when-used-alongside-court-appointed-monitoring/
Police Reform Report, Recommendation 1, at pg. 32.
Ibid, recommendation 14 at pg. 35.
 Libor Jany “Minneapolis to launch early warning system to identify potentially problematic officers”
Minneapolis Star Tribune, June 10 2020, online: www.startribune.com/early-warning-system-to-weed-out-troublesome-minneapolis-officers-didn-t-appear-to-launch/571157682/.
 Ontario Human Rights Commission, Policy on eliminating racial profiling in law enforcement, Sept. 2019, www.ohrc.on.ca/en/policy-eliminating-racial-profiling-law-enforcement. [Policy on Racial Profiling].
 Ontario Human Rights Commission, Policy on eliminating racial profiling in law enforcement, Sept. 2019, www.ohrc.on.ca/en/policy-eliminating-racial-profiling-law-enforcement. [Policy on Racial Profiling]. The reforms to the TPSB use of force policy and related directives should include the reforms noted at section IV, 6 of this document.
 Police Reform Report, at pg 68.
 R v RDS, 1997 CanLII 324 (SCC),  3 SCR 484 at para. 46; R v Spence, 2005 SCC 71 at paras. 31-33,  3 SCR 458.
 Nassiah v.Peel Regional Police Services Board, 2007 HRTO 14 (CanLII) at para. 113 [Nassiah]; Peart v. Peel Regional Police Services, 2006 CanLII 37566 at para. 94 (Ont. C.A.) [Peart]; R v Le, 2019 SCC 34 at paras. 89-97.
 Ontario Human Rights Commission, Policy on eliminating racial profiling in law enforcement, Sept. 2019, www.ohrc.on.ca/en/policy-eliminating-racial-profiling-law-enforcement. [Policy on Racial Profiling].
 Ontario Human Rights Commission, Policy on eliminating racial profiling in law enforcement, Sept. 2019, www.ohrc.on.ca/en/policy-eliminating-racial-profiling-law-enforcement.
 R. v Le, 2019 SCC 34 at paras. 95-97. At paragraph 97 Le states, “We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities…”
OHRC Interim Chief Commissioner Ena Chadha’s remarks to the August 18, 2020, Toronto Police Services Board meeting on its report and recommendations on Police Reform in Toronto: Systemic Racism, Alternative Community Safety and Crisis Response Models and Building New Confidence in Public Safety
Check against delivery
I attend this meeting very disappointed and with questions.
As you know, last Monday the Commission released A Disparate Impact, our second interim report in the ongoing inquiry into racial discrimination and profiling of Black persons by Toronto Police. A Disparate Impact documented highly disturbing data that Black people are disproportionately charged and bear the brunt of use of force by Toronto police, consistent with systemic and anti-Black racism.
What some may not know, is that the Commission provided advance copies of our report to the Toronto Police Service and this Board one full month before the official release. Also, as a courtesy, we provided the Board, the Service and Mayor Tory with a two-hour briefing one week before the release.
At the briefing, Chair Hart and Mayor Tory spoke positively about collaborating with the Commission and I emphasized the necessity to engage community on remedial processes.
That’s why it was a confounding shock to see the Board’s report and nearly hundred recommendations – the day after we released A Disparate Impact.
Despite using words like collaboration and partnership, no Board representative alerted the Commission to the impending report and its 81 recommendations. Had they done so, we would have urged that timelines and measurable outcomes are essential to achieve true institutional change.
I now ask why? Why was the Commission not invited to review these recommendations?
While you have referenced the Commission and our report, why isn’t A Disparate Impact tabled here for serious discussion?
Most importantly, why weren’t Black communities and organizations given sufficient time, accessible means and full opportunity to provide input on recommendations that are meant to change their lives?
So-called action plans without accountability and enforceability are not useful. To be meaningful, reforms must be independently monitored, legally enforceable, specific, sustainable, measurable with deadlines and must involve continuous, inclusive engagement with Black communities.
While it is laudable that the Board is wanting to be seen to take action, the report has significant gaps as highlighted in our written submissions.
For example, the report:
- Fails to include key accountability mechanisms for investigating and disciplining officers
- Fails to institute an Early Intervention System based on race-data to alert when officers or units have disproportionately targeted racial groups
- Fails to provide important measures to address excessive use of force and unfair charging practices
- And so on…
This report is procedurally and substantively flawed. The Commission cannot support it as it currently stands. We know communities want action, but they want and they deserve comprehensive input in that action.
For the third time in three weeks, we again call on the Toronto Police Service, the Board and the City to formally establish a transparent process with Black communities and the Commission.
We call on you to adopt legally binding remedies to transform policing practices and culture to eliminate anti-Black bias and systemic racism in our city.